As filed with the Securities and Exchange Commission on December 11, 1998
Reg. No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Wisconsin Gas Company
(Exact name of registrant as specified in its charter)
Wisconsin 39-0476515
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 385-7000
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
Joseph P. Wenzler
Senior Vice President and
Chief Financial Officer
Wisconsin Gas Company
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 385-7000
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
with a copy to:
Jere D. McGaffey, Esq.
Jay O. Rothman, Esq. Wilbur C. Delp, Jr., Esq.
Foley & Lardner Sidley & Austin
777 East Wisconsin Avenue One First National Plaza
Milwaukee, Wisconsin 53202 Chicago, Illinois 60603
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Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Maximum
Class of Securities Aggregate Offering Amount of
to be Registered Price Registration Fee(1)
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Notes $50,000,000 $13,900
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(1) Calculated in accordance with Rule 457(o) under the Securities Act of
1933.
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS (Subject to Completion)
Dated December 11, 1998
$50,000,000
Wisconsin Gas Company
Notes
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Wisconsin Gas Company may offer from time to time unsecured notes. The specific
terms of any notes offered will be included in a supplement to this prospectus.
The prospectus supplement will also describe the manner in which the notes will
be offered.
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The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
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MORGAN STANLEY DEAN WITTER
ROBERT W. BAIRD & CO.
INCORPORATED
A.G. EDWARDS & SONS, INC.
December , 1998
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You should rely only on the information contained or incorporated by
reference in this prospectus and the accompanying prospectus supplement. We have
not authorized anyone to provide you with information different from that
contained in this prospectus and the accompanying prospectus supplement. We are
offering to sell the notes and seeking offers to buy the notes only in
jurisdictions where offers and sales are permitted. The information contained in
this prospectus and the accompanying prospectus supplement is accurate only as
of the dates of this prospectus and the accompanying prospectus supplement,
regardless of the time of delivery of this prospectus and the accompanying
prospectus supplement or any sale of the notes. In this prospectus and the
accompanying prospectus supplement, the "Company," "we," "us" and "our" refer to
Wisconsin Gas Company.
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TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION...........................................3
THE COMPANY...................................................................4
USE OF PROCEEDS...............................................................4
SELECTED FINANCIAL INFORMATION................................................4
RATIOS OF EARNINGS TO FIXED CHARGES...........................................5
DESCRIPTION OF THE NOTES......................................................5
PLAN OF DISTRIBUTION.........................................................13
LEGAL MATTERS................................................................15
EXPERTS......................................................................15
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, and other information
with the Securities and Exchange Commission. You may read and copy any reports,
statements or other information that we file with the Commission at the
Commission's public reference rooms in Washington, D.C., New York, New York, and
Chicago, Illinois. Please call the Commission at 1- 800-SEC-0330 for further
information on the public reference rooms. Our Commission filings are also
available to the public from commercial document retrieval services and on the
Internet world wide web site maintained by the Commission at
"http://www.sec.gov".
We have filed with the Commission a registration statement on Form S-3
under the Securities Act of 1933 with respect to the notes. This prospectus does
not contain all of the information set forth in such registration statement,
certain parts of which have been omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to
such registration statement.
The Commission allows us to "incorporate by reference" the information
we file with them, which means we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus. The most recent information that we file with
the Commission automatically updates and supersedes any older information. We
incorporate by reference the following documents we have filed or may file with
the Commission pursuant to Section 13 of the Securities Exchange Act of 1934:
o Our Annual Report on Form 10-K for the year ended
December 31, 1997; and
o Our Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 1998; and
o All documents filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this prospectus, until all of
the notes being offered by this prospectus are sold.
You may request a copy of any or all of the information that has been
incorporated by reference in this prospectus but not delivered with this
prospectus at no charge to you. If you would like to obtain this information
from us, please direct your request, either in writing or by telephone to Robert
A. Nuernberg at Wisconsin Gas Company, 626 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202 (Telephone: (414) 385-7000).
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THE COMPANY
Wisconsin Gas Company is a Wisconsin corporation and a wholly-owned
subsidiary of WICOR, Inc. We are the largest distributor of natural gas in
Wisconsin, and conduct all of our business in Wisconsin. At December 31, 1997,
we distributed gas to approximately 521,000 residential, commercial and
industrial customers in 521 communities throughout Wisconsin with an approximate
population of 2,000,000 based on 1997 estimates provided by the State of
Wisconsin. We are subject to the jurisdiction of the Public Service Commission
of Wisconsin as to various phases of our operations, including rates, service
and the issuance of securities.
Our principal executive offices are located at 626 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202, and our telephone number is (414) 385-7000.
Wisconsin Gas Company's parent, WICOR, Inc., is a diversified holding
company with two principal business groups. WICOR's Energy Group is engaged in
natural gas distribution and related services, and WICOR's Manufacturing Group
is engaged in the manufacture of pumps and processing equipment used to pump,
control, transfer, hold and filter water and other fluids. WICOR has no
obligation with respect to and is not a guarantor of the notes.
USE OF PROCEEDS
The net proceeds from the sale of the notes will be added to our
general funds and used for general corporate purposes. Net proceeds from the
sale of the notes may also, depending on market conditions, be used to discharge
a portion of our outstanding debt. The debt to be discharged, if any, is
described in the applicable prospectus supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
Set forth below are the ratios of earnings to fixed charges (unaudited)
for Wisconsin Gas Company for the twelve months ended September 30, 1998 and for
the last five years:
Twelve Months
Ended
September 30, 1998 Year Ended December 31,
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1997 1996 1995 1994 1993
---- ---- ---- ---- ----
3.67 4.54 4.90 3.96 2.89 2.92
The ratio of earnings to fixed charges for the nine months ended
September 30, 1998 was 2.77. For the purpose of computing the ratios of earnings
to fixed charges, earnings have been calculated by adding to income before
interest expense, federal and state income taxes and the estimated interest
component of rentals. Fixed charges represent interest expense, amortization of
debt discount, premium and expense and the estimated interest component of
rentals.
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DESCRIPTION OF THE NOTES
This prospectus describes certain general terms and provisions of the
notes. When we offer to sell a particular series of notes, we will describe the
specific terms of the series in a supplement that will accompany this
prospectus. We will also indicate in the prospectus supplement whether the
general terms and provisions described in this prospectus apply to a particular
series of notes.
We may offer under this prospectus up to $50,000,000 aggregate
principal amount of notes, or if notes are issued at a discount, such principal
amount as may be sold for an initial public offering price of up to $50,000,000.
Unless otherwise specified in a supplement to this prospectus, the notes will be
our direct, unsecured obligations and will rank equally with all of our other
unsecured and unsubordinated indebtedness.
The notes will be issued under an indenture, dated September 1, 1990,
between us and Firstar Bank Milwaukee, N.A., as trustee. There is no limit on
the aggregate principal amount of notes that may be issued under the indenture.
The indenture provides that notes may be issued from time to time in one or more
series pursuant to the terms of one or more officers' certificates or
supplemental indentures creating the series. As of the date of this prospectus,
there are two series of notes with an aggregate principal amount of $110,000,000
outstanding under the indenture.
We have summarized selected portions of the indenture below. The
summary is not complete. The form of the indenture has been incorporated by
reference as an exhibit to the registration statement and you should read the
indenture for provisions that may be important to you. In the summary below, we
have included references to the section numbers of the indenture so that you can
easily locate these provisions. Capitalized terms used in the summary have the
meaning specified in the indenture.
General
The terms of each series of notes will be established by or pursuant to
a resolution of our Board of Directors and set forth or determined in the manner
provided in an officers' certificate or by a supplemental indenture. (Section
301) The particular terms of each series of notes will be described in a
prospectus supplement relating to such series (including any pricing
supplement).
We can issue an unlimited amount of notes under the indenture that may
be in one or more series with the same or various maturities, at par, at a
premium, or at a discount. We will set forth in a prospectus supplement
(including any pricing supplement) relating to any series of notes being
offered, the initial offering price, the aggregate principal amount and the
following terms of the notes:
o the title of the notes;
o any limit on the aggregate principal amount of the
notes of the series;
o the person to whom interest on the notes of the
series will be payable if other than the registered
holder;
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o the date or dates on which we will pay the principal
on the notes of the series;
o the rate or rates (which may be fixed or variable)
per annum (or the method used to determine the rate
or rates) at which the notes of the series will bear
interest, the date or dates from which interest will
accrue, the date or dates on which interest will
commence and be payable and any regular record date
for the interest payable on any interest payment date
(or the method for establishing such date or dates);
o the place or places where principal of (and premium,
if any) and interest on the notes of the series will
be payable;
o the terms and conditions upon which we may redeem the
notes of the series;
o any obligation we have to redeem or purchase the
notes of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder of
the notes of the series;
o the dates on which and the price or prices at which
we will repurchase notes of the series at the option
of the holders of notes of the series and other
detailed terms and provisions of these repurchase
obligations;
o the denominations in which the notes of the series
will be issued, if other than denominations of $1,000
and any integral multiple thereof;
o the portion of principal amount of the notes of the
series payable upon declaration of acceleration of
the maturity date, if other than the principal
amount;
o the currency of denomination of the notes of the
series;
o if payments of principal of (and premium, if any) or
interest on the notes of the series are to be
payable, at our election or a holder's election, in
one or more currencies or currency units other than
that or those in which the notes of the series are
denominated, the period or periods within which, and
the terms and conditions upon which, the election may
be made;
o the manner in which the amounts of payment of
principal of (and premium, if any) or interest on the
notes of the series will be determined, if these
amounts may be determined by reference to an index;
o the manner in which a temporary global note
representing all the notes of the series will be
issued and subsequently exchanged for definitive
notes of the series;
o whether the notes of the series will be issued in the
form of certificated note securities or global note
securities; and
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o any other terms of the notes of the series which
terms may not be inconsistent with, modify or delete
any provisions of the indenture. (Sections 301 and
901)
We may issue notes that provide for an amount less than their stated
principal amount to be due and payable upon declaration of acceleration of their
maturity pursuant to the terms of the indenture. We will provide you with
information on the federal income tax considerations and other special
considerations applicable to any of these notes in the applicable prospectus
supplement.
If we denominate the purchase price of any of the notes in a foreign
currency or currencies or a foreign currency unit or units, or if the principal
of (and premium, if any) and interest on any series of notes is payable in a
foreign currency or currencies or a foreign currency unit or units, we will
provide you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect to that issue
of notes and such foreign currency or currencies or foreign currency unit or
units in the applicable prospectus supplement.
Unless otherwise indicated in the prospectus supplement, the notes will
be issued in fully registered form, without coupons, in denominations of $1,000
or any multiple of $1,000. At any time and from time to time we may deliver
executed notes to the trustee for authentication and, subject to the conditions
set forth in the indenture, the trustee shall authenticate and deliver such
notes as provided in the indenture. No note shall be entitled to any benefit
under the indenture or be valid or obligatory for any purpose unless there
appears on such note a certificate of authentication substantially in the form
provided for in the indenture. All notes will be dated the date of their
authentication. (Sections 301 and 303)
Unless otherwise indicated in the prospectus supplement, principal of
(and premium, if any) and interest on the notes will be payable at an office
maintained by the trustee for such purpose in New York, New York and the notes
will be exchangeable and transfers thereof will be registerable at the principal
corporate trust office of the trustee in Milwaukee, Wisconsin, provided that, at
our option, payment of interest may be made by check mailed to the address of
the person entitled thereto as it appears in the note register. (Sections 202,
305 and 1002)
Notes may be exchanged for an equal aggregate principal amount of notes
of other authorized denominations without service charge, except for any tax or
other governmental charge that may be imposed. (Section 305) Interest on each
note (with limited exceptions as provided in the indenture) will be paid to the
person in whose name such note is registered at the close of business on the
applicable record date specified in the note. (Section 307) The notes of any
series, if so specified with respect to a particular series, may be issued in
permanent global form.
The notes will be unsecured and unsubordinated obligations and will
rank as to priority of payment equally with all of our other unsecured and
unsubordinated indebtedness. Substantially all of our properties and franchises
are subject to the lien of an Indenture of Mortgage and Deed of Trust, dated as
of November 1, 1950 (the "First Mortgage Indenture"), between us and Chase
Manhattan Trust Company and Theodore Kravits, as trustees. As of the date of
this prospectus, one series of first mortgage bonds (the "First Mortgage Bonds")
is outstanding under the First Mortgage Indenture. The final principal payment
on the outstanding series of First Mortgage Bonds is due on February 15, 1999.
We anticipate terminating the First Mortgage Indenture and
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obtaining a release of the lien against our properties and franchises as soon as
practicable after the repayment at maturity of the First Mortgage Bonds on
February 15, 1999.
The notes may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Certain federal income tax consequences and
special considerations applicable to any such notes will be described in the
applicable prospectus supplement. (Section 101)
Permanent Global Notes
If any notes of a series are issuable in permanent global form, the
applicable prospectus supplement will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent global note may
exchange such interests for notes of such series. Principal of (and premium, if
any) and interest on a permanent global note will be payable in the manner
described in the prospectus supplement relating to such global note. (Section
203)
Restrictive Covenants
The indenture does not limit the amount of unsecured debt that we can
incur. The indenture also does not expressly address the effect of a highly
leveraged transaction, however structured, on the holders of notes. As discussed
below, however, the limitations on our ability to create liens, to issue
additional First Mortgage Bonds and to enter into sale and leaseback
transactions provide some protection to note holders in such an event.
Limitations on Liens. So long as the notes of any series remain
outstanding, we will not, and will not permit any subsidiary to, create any
mortgage on, pledge of, or other lien on or security interest in, any of our
properties or assets to secure any indebtedness, unless we also make all of the
notes of that series equally and ratably secured, except for the following:
o the First Mortgage Indenture securing the First
Mortgage Bonds;
o mortgages on property existing at the time of
acquisition or construction of such property (or
created within one year after completion of such
acquisition or construction), whether by purchase,
merger, construction or otherwise (or on the property
of a subsidiary at the date it became a subsidiary),
or to secure the payment of all or any part of the
purchase price or construction cost of such property,
including the extension of any such mortgages to
repairs, renewals, replacements, substitutions,
additions and improvements made on such property;
o any extensions, renewals or replacements (or
successive extensions, renewals or replacements), in
whole or in part, of mortgages otherwise permitted by
the indenture;
o the pledge of any bonds or other securities at any
time issued under any of the mortgages otherwise
permitted by the indenture; or
o certain permitted encumbrances under the indenture.
(Section 1004)
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Permitted encumbrances under the indenture include (a) the pledge or
assignment in the ordinary course of business of gas inventory, accounts
receivable or customers' installment paper, and (b) encumbrances not otherwise
permitted if the aggregate of all of our obligations secured by such
encumbrances, together with the aggregate net proceeds received by us in respect
of certain outstanding sale and leaseback transactions permitted under the
indenture, does not exceed 10% of our consolidated tangible net worth. (Section
101)
Limitation on First Mortgage Bonds. So long as any notes of any series
remain outstanding, we will not issue any additional First Mortgage Bonds under
the First Mortgage Indenture, except in connection with transfers, exchanges,
replacements, substitutions or reissues of First Mortgage Bonds of any series
that are already outstanding. (Section 1006)
Limitations on Sales and Leasebacks. So long as there are notes of any
series outstanding, we will not enter into a sale and leaseback transaction for
a term (including renewals) of more than three years with respect to any
principal property acquired or placed into service more than 180 days before the
effective date of such lease arrangement unless:
o we would be entitled to incur indebtedness secured by
a mortgage on such principal property in a principal
amount equal to the net proceeds we received in
respect of such sale and leaseback transaction
without equally and ratably securing the notes; or
o we retire, or cause to be retired, within 120 days of
the effective date of the sale and leaseback
transaction, funded debt which is senior to or on
parity with the notes in an amount equal to the net
proceeds we received with respect to such sale and
leaseback transaction. (Section 1005)
Modification and Waiver
We and the trustee may modify and amend the indenture with the consent
of the holders of at least a majority in principal amount of the outstanding
notes of each series affected by the modifications or amendments. However, we
and the trustee may not make any modification or amendment without the consent
of the holders of each affected note then outstanding if that amendment will:
o change the fixed maturity or reduce the principal
amount of any note;
o reduce the rate or change the time of payment of
interest on any note, or reduce any premium payable
upon redemption of any note;
o reduce the amount of principal of an original issue
discount note payable upon acceleration of the
maturity of such note;
o impair the right to institute suit on the note or
change any place of payment where, or currency in
which, the note or interest on the note is payable;
or
o reduce the amount of debt securities whose holders
must consent to an amendment or waiver. (Section 902)
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Except for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding notes of any series may on
behalf of the holders of all notes of that series waive our compliance with
certain restrictive covenants of the indenture. (Section 1009) The holders of a
majority in principal amount of the outstanding notes of any series may on
behalf of the holders of all the notes of such series waive any past default
under the indenture with respect to that series and its consequences, except a
default in the payment of the principal of (and premium, if any) or any interest
on any note of that series or in respect of a covenant or provision which cannot
be modified or amended without the consent of the holder of each outstanding
note of the series affected; provided, however, that the holders of a majority
in principal amount of the outstanding notes of any series may rescind an
acceleration and its consequences, including any related payment default that
resulted from the acceleration. (Section 513)
Consolidation, Merger and Sale of Assets
We may consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of our properties and assets to, any person (a
"successor person") provided:
o we are the surviving corporation, or the successor
person (if other than Wisconsin Gas Company) is a
corporation organized and validly existing under the
laws of any U.S. domestic jurisdiction and expressly
assumes our obligations on the notes and under the
indenture;
o immediately after giving effect to the transaction,
no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing under
the indenture; and
o certain other conditions are met. (Section 801)
Events of Default
"Event of Default" means with respect to any series of notes
any of the following:
o default in the payment of any interest upon any note
of that series when it becomes due and payable, and
continuance of that default for a period of 30 days;
o default in the payment of principal of (or premium if
any on) any note of the series when due and payable;
o default in the payment of any sinking fund payment or
similar payment with respect to the notes of that
series, when and as due in respect of any note of
that series and continuance of such default for a
period of 30 days;
o default in the performance or breach of any other
covenant or warranty by us in the indenture (other
than a covenant or warranty that has been included in
the indenture solely for the benefit of a series of
notes other than that series), which default
continues uncured for a period of 90 days after we
receive written notice from the trustee or we and the
trustee receive written notice
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from the holders of not less than 25% in principal
amount of the outstanding notes of that series as
provided in the indenture;
o certain events of bankruptcy, insolvency or
reorganization; and
o any other Event of Default provided with respect to
notes of that series. (Section 501)
No Event of Default with respect to a particular series of notes
(except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an Event of Default with respect to any other series of
notes. The occurrence of an Event of Default may constitute an event of default
under our bank credit agreements in existence from time to time. In addition,
the occurrence of certain Events of Default or an acceleration under the
indenture may constitute an event of default under certain of our other
indebtedness outstanding from time to time.
If an Event of Default with respect to notes of any series at the time
outstanding occurs and is continuing (except as to certain events of bankruptcy,
insolvency or reorganization), then the trustee or the holders of not less than
25% in principal amount of the outstanding notes of that series may, by a notice
in writing to us (and to the trustee if given by the holders), declare to be due
and payable immediately the principal (or, if the notes of that series are
original issue discount notes, that portion of the principal amount as may be
specified in the terms of that series) of and accrued and unpaid interest, if
any, on all notes of that series. In the case of an Event of Default resulting
from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) of and accrued and unpaid interest, if any, on all
outstanding notes will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of outstanding
notes. At any time after a declaration of acceleration with respect to notes of
any series has been made, but before a judgment or decree for payment of the
money due has been obtained by the trustee, the holders of a majority in
principal amount of the outstanding notes of that series may rescind and annul
the acceleration if all Events of Default, other than the non-payment of
accelerated principal and interest, if any, with respect to notes of that
series, have been cured or waived as provided in the indenture. (Section 502)
For information as to waiver of defaults see the discussion set forth under
"--Modification and Waiver." We refer you to the prospectus supplement relating
to any series of notes that are original issue discount notes for the particular
provisions relating to acceleration of a portion of the principal amount of such
original issue discount notes upon the occurrence of an Event of Default.
The indenture provides that the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
holder of outstanding notes, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. (Section 603) Subject to certain
rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee with
respect to the debt securities of that series. (Section 512)
No holder of any note of any series will have any right to institute
any proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
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o that holder has previously given to the trustee
written notice of a continuing Event of Default with
respect to notes of that series; and
o the holders of at least a majority in principal
amount of the outstanding debt securities of that
series have made written request and offered
reasonable indemnity, to the trustee to institute the
proceeding as trustee, and the trustee has not
received from the holders of not less than 25% in
principal amount of the outstanding notes of that
series a direction inconsistent with that request and
has failed to institute the proceeding within 90
days. (Section 507)
Notwithstanding the foregoing, the holder of any note will have an
absolute and unconditional right to receive payment of the principal of, premium
and any interest on that note on or after the due dates expressed in that note
and to institute suit for the enforcement of payment. (Section 507)
The indenture requires us, within 120 days after the end of our fiscal
year, to furnish to the trustee a statement as to compliance with the indenture.
(Section 1007) The indenture provides that the trustee may withhold notice to
the holders of notes of any series of any Event of Default (except in payment on
any notes of that series) with respect to notes of that series if it in good
faith determines that withholding notice is in the interest of the holders of
those notes. (Section 602)
Concerning the Trustee
It is expected that the trustee will act as paying agent with respect
to the notes. We have a borrowing arrangement with the trustee.
Defeasance of Notes and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of notes, we may be discharged
from any and all obligations in respect of the notes of any series (except for
certain obligations to register the transfer or exchange of notes of such
series, to replace stolen, lost or mutilated notes of such series, and to
maintain paying agencies and certain provisions relating to the treatment of
funds held by paying agents). We will be so discharged upon the deposit with the
trustee, in trust, of money and/or U.S. Government Obligations that, through the
payment of interest and principal in accordance with their terms, will provide
money in an amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay and discharge each installment of
principal of (and premium, if any) and interest on and any mandatory sinking
fund payments in respect of the notes of the series on the stated maturity of
those payments in accordance with the terms of the indenture and those notes.
This discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel stating that we have received from, or
there has been published by, the United States Internal Revenue Service a ruling
or, since the date of execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the holders of the
notes of that series will not recognize income, gain or loss for United States
federal income tax purposes as a result of the deposit, defeasance and discharge
and will be subject to United States federal income tax on the same
-12-
<PAGE>
amounts and in the same manner and at the same times as would have been the case
if the deposit, defeasance and discharge had not occurred. (Section 401)
Defeasance of Certain Covenants. The indenture provides that, unless
otherwise provided by the terms of the applicable series of notes, upon
compliance with certain conditions:
o we may omit to comply with the covenants described
under the heading "Restrictive Covenants,"
"Consolidation, Merger and Sale of Assets" and
certain other covenants set forth in the indenture,
as well as any additional covenants which may be set
forth in the applicable prospectus supplement; and
o any omission to comply with those covenants will not
constitute an Event of Default with respect to the
notes of that series ("covenant defeasance").
The conditions include:
o depositing with the trustee money and/or U.S.
Government Obligations that, through the payment of
interest and principal in accordance with their
terms, will provide money in an amount sufficient in
the opinion of a nationally recognized firm of
independent public accounts to pay and discharge each
installment of principal of (and premium, if any) and
interest on and any mandatory sinking fund payments
in respect of the notes of that series on the stated
maturity of those payments in accordance with the
terms of the indenture and those notes; and
o no Event of Default or event which with notice or
passage of time would become an Event of Default has
occurred and continues. (Section 402)
Covenant Defeasance and Events of Default. In the event we exercise our
option to effect covenant defeasance with respect to any series of notes and the
notes of that series are declared due and payable because of the occurrence of
any Event of Default, the amount of money and/or U.S. Government Obligations on
deposit with the trustee will be sufficient to pay amounts due on the notes of
that series at the time of their stated maturity but may not be sufficient to
pay amounts due on the notes of that series at the time of the acceleration
resulting from the Event of Default. However, we shall remain liable for those
payments.
The applicable prospectus supplement may further describe the
provisions, if any, permitting or restricting such defeasance or covenant
defeasance with respect to the notes of a particular series.
Federal Income Tax Consequences. Under current Federal income tax law,
the deposit and defeasance described above under "Defeasance of Certain
Covenants" will not result in a taxable event to any holder of notes or
otherwise affect the federal income tax consequences of an investment in the
notes of any series.
The federal income tax treatment of the deposit and discharge described
above under "Legal Defeasance" is not clear. A deposit and discharge may be
treated as a taxable exchange of such notes for beneficial interests in the
trust consisting of the deposited money or securities. In that
-13-
<PAGE>
event, a holder of notes may be required to recognize gain or loss equal to the
difference between the holder's adjusted basis for the notes and the fair market
value of the holder's beneficial interest in such trust. Thereafter, such holder
may be required to include in income a share of the income, gain and loss of the
trust. As described above, it is generally a condition to such a deposit and
discharge to obtain an opinion of tax counsel, or our receipt from, or
publication of a ruling by, the Internal Revenue Service, to the effect that
such deposit and discharge will not alter the holders' tax consequences that
would have been applicable in the absence of the deposit and discharge.
Purchasers of the notes should consult their own advisors with respect to the
tax consequences to them of such deposit and discharge, including the
applicability and effect of tax laws other than federal income tax law.
PLAN OF DISTRIBUTION
We may, from time to time, sell notes (1) through underwriters or
dealers, (2) directly to one or more purchasers, or (3) through agents. A
prospectus supplement will set forth the terms of the offering of the notes,
including the name or names of any underwriters, the purchase price of the
notes, our proceeds from the sale, any underwriting discounts and commissions,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchange or market on which the
notes may be listed. Only underwriters named in such prospectus supplement are
deemed to be underwriters in connection with the offering of such notes.
If underwriters are used in the sale, the notes will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The obligations of
the underwriters to purchase the notes will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all the notes of
the series offered by the prospectus supplement if any of the notes are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
We may also sell notes directly or through agents we designate from
time to time. Any agent involved in the offering and sale of notes in respect of
which this prospectus is delivered will be named, and any commissions we pay to
such agent will be set forth, in the related prospectus supplement. Unless
otherwise indicated in the related prospectus supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment.
If a dealer is utilized in the sale of the notes, the Company will sell
such notes to the dealer, as principal. The dealer may then resell such notes to
the public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
The place and time of delivery for the notes in respect of which this
Prospectus is delivered are set forth in the accompanying prospectus supplement.
-14-
<PAGE>
LEGAL MATTERS
Foley & Lardner of Milwaukee, Wisconsin will issue an opinion about
certain legal matters with respect to the notes for us. Any underwriters will be
advised about the other issues relating to any offering by their own legal
counsel. Jere D. McGaffey, a partner of Foley & Lardner, is a director of
Wisconsin Gas Company and its parent WICOR, Inc.. As of December 10, 1998, Foley
& Lardner attorneys who participated in the preparation of this prospectus,
including Mr. McGaffey, beneficially owned an aggregate of 5,147 shares of
WICOR, Inc. common stock.
EXPERTS
The financial statements included in our Annual Report on Form 10-K,
for the year ended December 31, 1997, incorporated by reference in this
prospectus and in the registration statement, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect to said financial statements, and are incorporated by reference in this
prospectus in reliance upon the authority of said firm as experts in auditing
and accounting in giving said reports.
-15-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities covered hereby, other than underwriting discounts and commissions,
are, subject to future contingencies, estimated to be as follows:
Securities and Exchange Commission
Filing Fee ........................$ 13,900
Public Service Commission of
Wisconsin .......................... 1,000
Legal Fees and Expenses................ 50,000
Blue Sky Fees and Expenses............. 5,000
Accounting Fees and Expenses........... 12,000
Printing Expenses...................... 5,000
Trustee Fees and Expenses.............. 4,000
Rating Agencies' Fees.................. 25,000
Miscellaneous ......................... 9,100
--------
Total.....................$125,000
========
Item 15. Indemnification of Directors and Officers.
Pursuant to the provisions of the Wisconsin Business Corporation Law
and the Registrant's By-Laws, directors and officers of the Registrant are
entitled to mandatory indemnification from the Registrant against certain
liabilities (which may include liabilities under the Securities Act of 1933) and
expenses (i) to the extent such officers or directors are successful in the
defense of a proceeding; and (ii) in proceedings in which the director or
officer is not successful in defense thereof, unless it is determined that the
director or officer breached or failed to perform his or her duties to the
Registrant and such breach or failure constituted: (a) a willful failure to deal
fairly with the Registrant or its shareholders in connection with a matter in
which the director or officer had a material conflict of interest; (b) a
violation of the criminal law unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. Additionally, under the Wisconsin Business Corporation Law,
directors of the Registrant are not subject to personal liability to the
Registrant, its shareholders or any person asserting rights on behalf thereof,
for certain breaches or failures to perform any duty resulting solely from their
status as directors, except in circumstances paralleling those outlined above.
Expenses for the defense of any action for which indemnification may be
available may be advanced by the Registrant under certain circumstances.
II-1
<PAGE>
The indemnification provided by the Wisconsin Business Corporation Law
is not exclusive of any other rights to which a director or officer of the
Registrant may be entitled. The Registrant also maintains a liability insurance
policy for its directors and officers as permitted by Wisconsin law which may
extend to, among other things, liability arising under the Securities Act of
1933.
The proposed form of Underwriting Agreement for the Notes contains
provisions under which the Underwriters agree to indemnify the directors and
officers of the Registrant against certain liabilities, including liabilities
under the Securities Act of 1933.
Item 16. Exhibits.
The exhibits filed herewith or incorporated by reference herein are
specified on the Exhibit Index included herein.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
II-2
<PAGE>
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions set forth in Item
15 hereof, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on December 11, 1998.
WISCONSIN GAS COMPANY
By: /s/ Joseph P. Wenzler
Joseph P. Wenzler
Senior Vice President and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of this 11th day of December,
1998 by the following persons in the capacities indicated. Each person whose
signature appears below constitutes and appoints Bronson J. Haase and Joseph P.
Wenzler, and each of them individually, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and any additional registration
statement to be filed pursuant to Rule 462(b) under the Securities Act of 1933,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title
/s/ Bronson J. Haase President and Chief Executive
Bronson J. Haase Officer
(Principal Executive Officer)
/s/ Joseph P. Wenzler Senior Vice President and Chief
Joseph P. Wenzler Financial Officer (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Wendelll F. Bueche
Wendell F. Bueche Director
/s/ Willie D. Davis
Willie D. Davis Director
II-4
<PAGE>
/s/ Jere D. McGaffey
Jere D. McGaffey Director
/s/Daniel F. McKeithan, Jr.
Daniel F. McKeithan, Jr. Director
/s/Guy A. Osborn
Guy A. Osborn Director
/s/ Thomas F. Schrader
Thomas F. Schrader Director
/s/ Stuart W. Tisdale
Stuart W. Tisdale Director
/s/ George E. Wardeberg
George E. Wardeberg Director
/s/ Essie M. Whitelaw
Essie M. Whitelaw Director
/s/ William B. Winter
William B. Winter Director
Pursuant to Transaction Requirement B.2 of Form S-3, the Registrant
reasonably believes that the security rating to be assigned to the securities
registered hereunder will make the securities "investment grade securities"
prior to sale.
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
(1) Underwriting Agreement for the Notes.*
(4.1) Indenture of Mortgage and Deed of Trust, dated as of November 1,
1950, between Wisconsin Gas Company, successor to Milwaukee Gas Light
Company, and Chase Manhattan Trust Company, N.A., successor to Mellon
National Bank and Trust Company, and Theodore Kravis, successor to D.
A. Hazlett, Trustees (incorporated by reference to Exhibit 7-E to the
Company's Registration Statement (No. 2-8631)).
(4.2) Eleventh Supplemental Indenture, dated as of February 15, 1982,
between Wisconsin Gas Company and Chase Manhattan Trust Company,
N.A., successor to Mellon Bank, N.A., and N. R. Smith, Trustees
(incorporated by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S- 3 (No. 33-43729)).
(4.3) Bond Purchase Agreement, dated December 31, 1981, between Wisconsin
Gas Company and Teachers Insurance and Annuity Association of America
relating to the issuance and sale of $30 million principal amount of
First Mortgage Bonds, Adjustable Rate Series due 2002 (incorporated
by reference to Exhibit 4.6 to the Company's Registration Statement
on Form S-3 (No.
33-43729)).
(4.4) Indenture, dated as of September 1, 1990, between Wisconsin Gas
Company and Firstar Bank Milwaukee, N.A., successor to First
Wisconsin Trust Company, Trustee (incorporated by reference to
Exhibit 4.11 to the Company's Registration Statement on Form S-3 (No.
33-36639)).
(4.5) Officers' Certificate, dated as of September 15, 1993, setting forth
the terms of the Company's 6.60% Debentures due 2013 (incorporated by
reference to Exhibit 4.1 to the Company's Current Report on Form 8-K
dated September 15, 1993).
(4.6) Officers' Certificate, dated as of November 7, 1995, setting forth
the terms of the Company's 6 3/8% Notes due 2005 (incorporated by
reference to Exhibit 4.1 to the Company's Current Report on Form 8-K
dated November 7, 1995).
(4.7) Revolving Credit Agreement, dated as of August 6, 1997, among
Wisconsin Gas Company and Citibank, N.A., as Agent, Firstar Bank
Milwaukee, N.A., Harris Trust & Savings Bank and M&I Marshall &
Ilsley Bank (incorporated by reference to Exhibit 4.1 to the
Company's Quarterly Report on Form 10- Q for the quarter ended
September 30, 1997).
(5) Opinion of Foley & Lardner.
(12) Statement re: computation of ratios.
(23.1) Consent of Arthur Andersen LLP
<PAGE>
(23.2) Consent of Foley & Lardner (included in Exhibit 5).
(24) Powers of Attorney relating to subsequent amendments (included on the
signature page to the Registration Statement).
(25) Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Firstar Bank Milwaukee, N.A.
- ---------------------
* To be filed by amendment to the Registration Statement or as an exhibit
to a Current Report on Form 8-K.
FOLEY & LARDNER
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
CLIENT/MATTER NUMBER
085860-0228
December 11, 1998
Wisconsin Gas Company
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
We have acted as counsel for Wisconsin Gas Company, a Wisconsin
corporation (the "Company"), in connection with the preparation of a Form S-3
Registration Statement, including the Prospectus constituting a part thereof
(such Registration Statement as amended up to and including the date hereof is
referred to herein as the "Registration Statement"), filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, and
relating to the issuance and sale of up to $50,000,000 aggregate principal
amount of unsecured notes (the "Notes") in the manner set forth in Registration
Statement and Prospectus. The Notes may be offered from time to time in one or
more series. Each series of Notes would be issued under the Indenture, dated as
of September 1, 1990 (the "Indenture"), between the Company and Firstar Bank
Milwaukee, N.A. (as successor to Firstar Trust Company), as trustee, and a
supplemental indenture (the "Supplemental Indenture") or an officers'
certificate (the "Officers' Certificate"), as the case may be, providing for the
issuance of such series.
In connection with our opinion, we have examined: (a) the Registration
Statement, including the Prospectus; (b) the exhibits (including those
incorporated by reference) constituting a part of said Registration Statement;
(c) the Restated Articles of Incorporation and By-laws of the Company, as
amended to date; and (d) such other proceedings, documents and records as we
have deemed necessary to enable us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a validly existing corporation under the laws of the
State of Wisconsin.
<PAGE>
Wisconsin Gas Company
December 11, 1998
Page 2
2. The Notes, when executed, authenticated and issued in the manner and
for the consideration contemplated by the Registration Statement and Prospectus,
will be legally issued, valid and binding obligations of the Company; provided,
that prior to the issuance of the Notes there shall be taken various proceedings
in the manner contemplated by us as counsel, which include the following:
a. The completion of requisite procedures under the applicable
provisions of the Securities Act of 1933, as amended, and the Trust
Indenture Act of 1939, as amended;
b. The completion of the requisite procedures for and issuance
of a Findings of Fact, Conclusions of Law, Order and Certificate of
Authority by the Public Service Commission of Wisconsin authorizing the
issuance and sale of the Notes contemplated, and the recording thereof
on the books of the Company; and
c. The execution, delivery and filing of the Supplemental
Indenture or the Officers' Certificate, as the case may be, and the
filing of other documents and the taking of such other proceedings as
provided in the Indenture with respect to the issuance of the Notes
thereunder.
We hereby consent to the reference to our firm under the caption "Legal
Matters" in the Prospectus which is filed as part of the Registration Statement,
and to the filing of this opinion as an exhibit to such Registration Statement.
In giving this consent, we hereby disclaim that we are experts within the
meaning of Section 11 of the Securities Act of 1933, as amended, or within the
category of persons whose consent is required by Section 7 of said Act.
Very truly yours,
/s/FOLEY & LARDNER
<TABLE>
WISCONSIN GAS COMPANY
Ratio of Earnings Before Interest and Income Taxes
to Fixed Charges (SEC Method)
(Thousands of Dollars)
<CAPTION>
Nine Months Twelve Months Year Ended December 31,
Ended Ended -----------------------------------------------------------
September 30, September 30,
1998 1998 1997 1996 1995 1994 1993
--------------- ----------------- ---------- --------- --------- --------- ---------
Earnings:
<S> <C> <C> <C> <C> <C> <C> <C>
Income before interest
expense $ 19,799 $ 35,061 $ 42,033 $ 45,294 $ 42,389 $ 33,244 $ 34,651
Adjustments:
Federal and State income
taxes 6,253 13,173 17,808 20,335 17,097 10,993 11,280
Interest factor applicable
to rents 444 597 605 583 952 1,447 1,433
--------------- ----------------- ---------- --------- --------- --------- ---------
Total earnings as defined $ 26,496 $ 48,831 $ 60,446 $ 66,212 $ 60,438 $ 45,684 $ 47,364
=============== ================= ========== ========= ========= ========= =========
Fixed Charges:
Interest on long-term debt $ 7,716 $ 10,325 $ 10,452 $ 10,472 $ 11,734 $ 11,601 $ 12,816
Amortization of debt
discount and expense 145 236 446 501 508 529 585
Other Interest 1,247 2,145 1,800 1,961 2,070 2,218 1,380
Interest factor applicable
to rentals 444 597 605 583 952 1,447 1,433
--------------- ----------------- ---------- --------- --------- --------- ---------
Total fixed charges $ 9,552 $ 13,303 $ 13,303 $ 13,517 $ 15,264 $ 15,795 $ 16,214
=============== ================= ========== ========= ========= ========= =========
Ratio of earnings to fixed
charges 2.77 3.67 4.54 4.90 3.96 2.89 2.92
=============== ================= ========== ========= ========= ========= =========
</TABLE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 26, 1998
included in Wisconsin Gas Company's Form 10-K for the year ended December 31,
1997 and to all references to our firm included in this registration statement.
/s/ ARTHUR ANDERSON LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
December 10, 1998
Securities and Exchange Commission
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------------------
Check if an Application to Determine Eligibility of a Trustee
Pursuant to Section 305(b)(2) _________
----------------------
FIRSTAR BANK MILWAUKEE, N.A.
(Exact name of trustee as specified in its charter)
Wisconsin 39-0281225
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U. S. National Bank) Identification Number)
777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Richard J. Hidy, Assistant General Counsel
Firstar Bank Milwaukee, N.A.
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Telephone (414) 765-5725
(Name, address, and telephone number of agent for service)
Wisconsin Gas Company
(Exact name of obligor as specified in its charter)
Wisconsin 39-0476515
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Notes
(Title of indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Office of Commissioner of Banking, Madison, Wisconsin
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The corporate trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of December 11, 1998
Col. A Col. B
Title of class Amount outstanding
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation
in any other securities, of the obligor are outstanding, furnish
the following information:
(a) Title of the securities outstanding under each such other
indenture.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
<PAGE>
Item 5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
If the trustee or any of the directors or executive officers of
the trustee is a director, officer, partner, employee, appointee,
or representative of the obligor or of any underwriter for the
obligor, identify each such person having any such connection and
state the nature of each such connection.
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by the obligor and each director,
partner, and executive officer of the obligor:
As of December 11, 1998
Col. A Col. B Col. C Col. D
Name of owner Title of class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by each underwriter for the obligor
and each director, partner, and executive officer of each such
underwriter:
As of December 11, 1998
Col. A Col. B Col. C Col. D
Name of owner Title of class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to form T-1, no response is required to
this item as the obligor is not presently in default.
<PAGE>
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations
in default by the trustee:
As of December 11, 1998
Col. A Col. B Col. C Col. D
Title of class Whether Amount owned Percent of
the securities beneficially or held class represented
are voting as collateral security by amount given
or nonvoting for obligations in Col. C
securities in default
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of an underwriter for
the obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held
by the trustee:
As of December 11, 1998
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security
for obligations in default voting securities of a person who, to
the knowledge of the trustee (1) owns 10 percent or more of the
voting securities of the obligor or (2) is an affiliate, other
than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
As of December 11, 1998
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
<PAGE>
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security
for obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned
or held by the trustee:
As of December 11, 1998
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
As of December 11, 1998
Col. A Col. B Col. C
Nature of indebtedness Amount outstanding Date due
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any
such default.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
<PAGE>
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
Per General Instruction B to Form T-1, no response is required to
this item as the obligor is not presently in default.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee
is authorized to act as sole trustee under indentures qualified or
to be qualified under the Act. Not applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the Articles of Association of Firstar Bank
Milwaukee, N.A. (f/k/a First Wisconsin National Bank) as now
in effect (filed herewith).
2. Certificate of authority of the Trustee to commence business
(contained in Exhibit 1).
3. Authorization of the Trustee to exercise trust powers (f/k/a
First Wisconsin National Bank) (filed herewith).
4. A copy of the existing By-Laws of Firstar Bank Milwaukee, N.A.
(f/k/a First Wisconsin National Bank) (filed herewith).
6. The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939 (filed herewith).
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirement of its
supervising or examining authority (filed herewith).
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Firstar Bank Milwaukee, N.A., a corporation organized and existing
under the laws of the United States, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Milwaukee, and State of Wisconsin, on the 11th
day of December, 1998.
FIRSTAR BANK MILWAUKEE, N.A.
(Trustee)
By: /s/ Yvonne Siira
Yvonne Siira, Assistant Vice President
(Name and title)
By: /s/ Pamela Warner
Pamela Warner, Assistant Secretary
(Name and title)
<PAGE>
Exhibit 1
FIRSTAR BANK MILWAUKEE, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
As Amended To
August 17, 1995
AND
BY-LAWS
As Amended To
July 17, 1997
<PAGE>
ARTICLES OF ASSOCIATION
OF
FIRSTAR BANK MILWAUKEE, N.A., NATIONAL ASSOCIATION
As Amended to August 17, 1995
Amended 9/14/92 FIRST. The title of this Association shall be "Firstar
Bank Milwaukee, N.A., National Association."
SECOND. The place where the main banking house or office
of this Association shall be located, its operations of
discount and deposit carried on, and its general
business conducted, shall be Milwaukee, County of
Milwaukee, State of Wisconsin.
Amended 2/27/87 THIRD. The Board of Directors of this Association shall
consist of such number of its shareholders not less than
five nor more than twenty-five, as from time to time
shall be determined by a majority of the votes to which
all of its shareholders are at the time entitled. Each
director, during the full term of his or her
directorship, shall own a minimum of $1,000 aggregate
par value of stock of this Association or a minimum par
value, fair market value or equity interest of $1,000 of
stock in the bank holding company controlling this
Association. A majority of the Board of Directors shall
be necessary to constitute a quorum for the transaction
of business. The Board of Directors, by the vote of a
majority of the full Board, may, between Annual Meetings
of the Shareholders, increase the membership of the
Board by not more than two members and by like vote
appoint qualified persons to fill the vacancies created
thereby.
FOURTH. The regular annual meeting of the Shareholders
of this Association shall be held at its main banking
house or other convenient place duly authorized by the
Board of Directors on such day of each year as is
specified therefor in the By-laws.
Amended 1/17/67 FIFTH. The amount of authorized capital stock of this
5/13/71 Association shall be Seventy-five Million Six Hundred
2/22/74 Thousand Dollars ($75,600,000) divided into 2,100,000
1/21/75 shares of common stock of the par value of Thirty-six
10/27/75 ($36.00) each; but said capital stock may be increased
1/17/80 or decreased from time to time in accordance with the
2/19/81 provisions of the laws of the United States.
3/27/95
8/17/95
<PAGE>
No holder of shares of the capital stock of any class of
the Association shall have any preemptive or
preferential right of subscription to any shares of any
class of stock of the Association, whether now or
hereafter authorized, or to any obligations convertible
into stock of the Association, issued or sold, nor any
right of subscription to any thereof other than such, if
any, as the Board of Directors, in its discretion may
from time to time determine and at such price as the
Board of Directors may from time to time fix.
The Association may at any time or times authorize and
issue debt obligations, whether or not subordinated,
without the approval of the Shareholders.
Amended 2/16/78 SIXTH. The Board of Directors shall appoint one of its
members President of this Association, who shall be
Chairman of the Board, but the Board of Directors may
appoint a Director, in lieu of the President, to be
Chairman of the Board, who shall perform such other
duties as may be designated by the Board of Directors.
In the absence of the Chairman of the Board and or the
President of this Association, the Board of Directors
may appoint any one of the other officers or Directors
of this Association to act as temporary Chairman at a
meeting of the Board of Directors and to preside
temporarily thereat; provided that such temporary
Chairman may not, unless he shall be a member of the
Board of Directors, have any right to vote at such
meeting. The Board of Directors shall have the power to
appoint one or more Vice Presidents, a Cashier and such
other officers as may be required to transact the
business of this Association, to fix the salaries to be
paid to all officers of this Association, and to dismiss
such officers, or any of them.
The Board of Directors shall have the power to define
the duties of officers and employees of this
Association, to require bonds from them, and to fix the
penalty thereof; to regulate the manner in which
Directors shall be elected or appointed, and to appoint
judges of the election; to make all by-laws that it may
be lawful for them to make for the general regulation of
the business of this Association and the management of
its affairs, and generally to do and perform all acts
that it may be lawful for a Board of Directors to do and
perform.
SEVENTH. This Association shall have succession from the
date of its organization certificate until such time as
it be dissolved by the act of its shareholders in
accordance with the provisions of the banking laws of
the United States, or until its franchise becomes
forfeited by reason of violation of law, or until
terminated by either a general or a special act of
Congress, or until its affairs be placed in the hands of
a receiver and finally wound up by him.
EIGHTH. The Board of Directors of this Association, or
any three or more shareholders owning, in the aggregate,
not less than ten percent of the stock of this
Association, may call a special meeting of shareholders
at any time provided, however, that, unless otherwise
provided by law, not less than ten days prior to the
date fixed for any such meeting, a notice of the time,
place and purpose of the meeting shall be given by
first-class mail, postage prepaid, to all shareholders
of record of this Association at their respective
addresses as shown upon the books of the Association.
These Articles of Association may be amended at any
regular or special meeting of the shareholders by the
affirmative vote of the shareholders owning at least a
majority of the stock of this Association, subject to
the provisions of the banking laws of the United States.
The notice of any shareholders' meeting, at which an
amendment to the Articles of Association of this
Association is to be considered, shall be given as
hereinabove set forth.
<PAGE>
Exhibit 3
United States of America
The State of Wisconsin
State Banking Department
WHEREAS, the First Wisconsin National Bank, Milwaukee, Wisconsin, has
been granted FIDUCIARY POWERS, as witnessed by certified copy of such permit
granted by the Federal Reserve Board, under Subsection (k) of Section Eleven
(11) of the Federal Reserve Act, and
WHEREAS, said bank has complied with Section 221.04, subsection (6),
220.09 and 223.02 of the Revised Statutes of Wisconsin, by depositing sufficient
securities approved by this Department with the State Treasurer,
NOW, THEREFORE, I, Wm. E. Nuesse, Commissioner of Banks for the State
of Wisconsin, do concur in the permit as granted by the Federal Reserve Board,
authorizing said bank to act as Trustee, Executor, Administrator, Committee of
Estates of Lunatics, and in any other fiduciary capacity granted thereby.
THIS CONCURRENCE OF PERMIT shall be subject to revocation in whole or
in part, should the law relating to the fiduciary powers of national banks be
further restricted, or should the bank exercising these fiduciary powers fail to
comply with any or all provisions of the Statutes of Wisconsin.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and caused my Official Seal
to be affixed. Done at the Hill Farms
State Office Building, in the City of
Madison, this 10th Day of March, 1967.
/s/Wm. E. Nuesse
Wm. E Nuesse
Commissioner of Banks
<PAGE>
Exhibit 4
F I R S T A R B A N K M I L W A U K E E , N . A.
B Y - L A W S
(As amended to July 17, 1997)
<PAGE>
ARTICLE I
SHAREHOLDERS
Amended: 12/18/75
Section 1. Annual Meeting. The annual meeting of the shareholders, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting, shall be held on the third Thursday of February of
each year, at 8:30 o'clock in the morning, unless some other hour shall have
been designated by the Board of Directors. If the election of directors shall
not be held on the date designated herein for any annual meeting of the
shareholders, or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the shareholders as soon
thereafter as conveniently may be.
Amended: 6/19/80
Section 2. Special Meetings. Special meetings of the shareholders for any
purpose or purposes, unless otherwise prescribed by the laws of the United
States or the Articles of Association, may be called by the Chairman of the
Executive Committee, the Chairman of the Board, the President or the Board of
Directors, and shall be called by the Secretary upon a written request to him
signed by at least three shareholders owning in the aggregate not less than ten
percent of all outstanding shares of the Association entitled to vote at the
meeting.
Section 3. Place of Meeting. The Board of Directors may designate any convenient
place in the City of Milwaukee, Wisconsin, as the place of meeting for any
annual meeting or for any special meeting. If no such designation is made, the
place of meeting shall be the main banking office of the Association in the City
of Milwaukee, Wisconsin. Any meeting may be adjourned to reconvene at any place
in the City of Milwaukee, Wisconsin, designated by vote of a majority of the
shares represented thereat.
Amended: 6/19/80
Section 4. Notice of Meeting. Unless otherwise provided by the laws of the
United States or the Articles of Association, written notice stating the place,
date and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
or more than fifty days before the date of the meeting, by or at the direction
of the Chairman of the Executive Committee, the Chairman of the Board, the
President, or the Secretary, to each shareholder of record entitled to vote at
such meeting. Such notice shall be deemed to be delivered when deposited in the
United States mail, addressed to the shareholder at his address as it appears on
the stock record book of the Association, with postage thereon prepaid.
Section 5. Closing of Transfer Books or Fixing of Record Date. For the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors of the Association may provide
that the stock transfer books shall be closed for stated period but not to
exceed, in any case, fifty days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days
immediately preceding such
<PAGE>
meeting. In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than fifty days and, in case
of a meeting of shareholders, not less than ten days prior to the date on which
the particular action, requiring such determination of shareholders, is to be
taken. If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the close of business on the date on which notice of the meeting is
mailed or on the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this Section, such determination shall be applied to any adjournment thereof
except where the determination has been made through the closing of the stock
transfer books and the stated period of closing has expired.
Amended: 6/19/80
Section 6. Voting Lists. The Secretary shall make, at least ten days before each
meeting of shareholders, a complete list of the shareholders entitled to vote at
such meeting, or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each, which list, for a period
of ten days prior to such meeting, shall be kept on file at the office of the
Association and shall be subject to inspection by any shareholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original stock transfer
books shall be prima facie evidence as to who are the shareholders entitled to
examine such list or transfer books or to vote at any meeting of shareholders.
Failure to comply with the requirements of this Section shall not affect the
validity of any action taken at such meeting.
Section 7. Quorum. Except as otherwise provided by law, a majority of the
outstanding shares of the Association entitled to vote, represented in person or
by proxy, shall constitute a quorum at a meeting of shareholders, and a majority
of votes cast at any meeting at which a quorum is present shall be decisive of
any motion or election. Though less than a quorum of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Amended: 6/19/80
Section 8. Proxies. At all meetings of shareholders, a shareholder entitled to
vote may vote in person or by proxy appointed in writing by the shareholder or
by his duly authorized attorney in fact. Such proxy shall be filed with the
Secretary of the Association before or at the time of the meeting. Unless
otherwise provided in the proxy, a proxy may be revoked at any time before it is
voted, either by written notice filed with the secretary of the meeting or by
oral notice given by the shareholder to the presiding officer during the
meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 9. Voting of Shares. Each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders, except for the election of Directors. In all elections of
Directors each shareholder shall have the right to vote the number of shares
owned by him for as many persons as there are Directors to be elected, or to
cumulate such shares and give one
<PAGE>
candidate as many votes as the number of Directors multiplied by the number of
his shares shall equal or to distribute them on the same principle among as many
candidates as he shall elect.
Section 10. Voting of Shares by Certain Holders.
Amended: 6/19/80
(a) Other Corporation. Shares standing in the name of another corporation may be
voted either in person or by proxy, by the president of such corporation, or any
other officer appointed by such president. A proxy executed by any principal
officer of such other corporation or assistant thereto shall be conclusive
evidence of the signer's authority to act, in the absence of express notice to
this Association, given in writing to the Secretary of the designation of some
other person by the Board of Directors or the by-laws of such other corporation.
Amended: 6/19/80
(b) Legal Representatives and Fiduciaries. Shares held by an administrator,
executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee
for creditors may be voted by him, either in person or by proxy, without a
transfer of such shares into his name, provided that there is filed with the
Secretary before or at the time of the meeting proper evidence of his incumbency
and the number of shares held. Shares standing in the name of a fiduciary may be
voted by him, either in person or by proxy. A proxy executed by a fiduciary
shall be conclusive evidence of the signer's authority to act, in the absence of
express notice to this Association, that such manner of voting is expressly
prohibited or otherwise directed by the document creating the fiduciary
relationship.
(c) Pledges. A shareholder whose shares are pledges shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
(d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by
another corporation if majority of the shares entitled to vote for the election
of directors of such other corporation is held by this Association, shall be
voted at any meeting or counted in determining the total number of outstanding
shares entitled to vote, but shares of its own issue held by such other
corporation in a fiduciary capacity, may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote.
Amended: 6/19/80
(e) Minors. Shares held by a minor may be voted by such minor in person or proxy
and no such vote shall be subject to disaffirmance or avoidance, unless prior to
such vote the Secretary of the Association has received written notice or has
actual knowledge that such shareholder is a minor.
<PAGE>
Amended: 6/19/80
(f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift
may be voted by such incompetent or spendthrift in person or by proxy and no
such vote shall be subject to disaffirmance or avoidance, unless prior to such
vote the Secretary of the Association has actual knowledge that such shareholder
has been adjudicated an incompetent or spendthrift or actual knowledge of filing
of judicial proceedings for appointment of a guardian.
Amended: 6/19/80
(g) Joint Tenants. Shares registered in the names of two or more individuals who
are named in the registration as joint tenants may be voted in person or by
proxy signed by any one or more of such individuals if either (i) no other such
individual or his legal representative is present and claims the right to
participate in the voting of such shares or prior to the vote files with the
Secretary of the Association a contrary written voting authorization or
direction or written denial of authority of the individual present or signing
the proxy proposed to be voted or (ii) all such other individuals are deceased
and the Secretary of the Association has no actual knowledge that the survivor
has been adjudicated not to be the successor to the interests of those deceased.
Section 11. Waiver of Notice of Shareholders. Whenever any notice whatever is
required to be given to any shareholder of the Association under the Article of
Association or By-laws or any provision of law, a waiver thereof in writing,
signed at any time, whether before or after the time of meeting, by the
shareholder entitled to such notice, shall be deemed equivalent to the giving of
such notice; provided that such waiver in respect to any matter of which notice
is required under any provision of law shall contain the same information as
would have been required to be included in such notice, except such waiver need
not set forth the time and place of meeting.
Section 12. Chairman and Secretary of Meeting. At each meeting of the
shareholders, the shareholders shall elect a Chairman and a Secretary of the
meeting, each of whom shall be either an officer or a shareholder of the
Association.
Amended: 6/19/80
Section 13. Judges of Elections. Not less than thirty days prior to the date of
any election of Directors the Board of Directors shall appoint two shareholders
to be the judges of said election has been held the judges shall certify the
results thereof to the Secretary.
Amended: 6/19/80
Section 14. Reports of Meetings. The Secretary of the meeting shall cause the
record of each meeting of shareholders to be kept showing the names of the
shareholders present in person and by proxy, the number of shares held by each
and the number of shares voted on each action. After each such meeting the
Secretary shall forward a report thereof to the Comptroller of the Currency in
the form prescribed by him.
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Association shall be
managed by its Board of Directors.
Amended: 10/19/67; 6/19/80; 1/21/82
Section 2. Number, Tenure and Qualifications. The Board of Directors shall
consist of not less than five nor more than twenty-five persons. The number of
Directors to be elected shall be determined by a majority of the votes cast by
the shareholders at the annual meeting or at a special meeting called for such
purpose; provided that the Board of Directors may, by a vote of the majority of
its members, increase the number of members of the Board as established by the
shareholders by not more than two members. Each Director shall hold office until
the next annual meeting of shareholders and until his successor shall have been
elected, or until his death or until he shall resign by filing his written
resignation with the Secretary. No person shall be eligible to be elected or
re-elected as a member of the Board of Directors if he shall have attained 70
years of age at the date of his election.
Section 3. Oath. Each person when initially elected or appointed a member of the
Board of Directors shall take the oath of such office in the form prescribed by
the Comptroller of the Currency. No person elected or appointed a Director shall
exercise the functions of such office until he shall have taken such oath.
Section 4. Regular Meetings. A regular meeting of the Board of Directors shall
be held, without other notice than this By-law, immediately after and at the
same place as the annual meeting of shareholders for the purpose of the
Directors taking their oaths, organizing the Board, electing the Executive
Committee, appointing officers of the Association and transacting such other
business as may properly come before the meeting. Additional regular meetings of
the Board of Directors shall be held monthly on such day and at such hour as the
Board of Directors may provide by resolution, without other notice than such
resolutions. When any regular meeting of the Board of Directors falls upon a
holiday, the meeting shall be held on the next business day unless the Board of
Directors shall have previously designated another day.
Amended: 6/19/80
Section 5. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Executive Committee, Chairman
of the Board, the President, the Executive Vice President, and shall be called
by the Secretary at the request of three or more Directors.
Section 6. Place of Meeting. The Board of Directors (or in the case of a special
meeting called at the request of the Chairman of the Executive Committee, the
Chairman of the Board, the President, the Executive Vice President, or three or
more Directors calling such meeting, the officer of Directors requesting such
call) may designate any convenient place in the City of Milwaukee, Wisconsin, as
the
<PAGE>
place of meeting for any meeting of the Board of Directors. If no such
designation is made, the place of meeting shall be the main banking office of
the Association in the City of Milwaukee, Wisconsin.
Amended: 6/19/80
Section 7. Notice. Notice of any special meeting shall be given by the Secretary
to each Director at least 48 hours previous thereto by orally presenting such
notice to a Director personally, directly or by telephone, or by written notice
delivered personally or mailed to a Director at his business address, or by
telegram. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail so addressed with postage thereon prepaid (air mail
postage as to any Director whose address is more than 200 airline miles from
Milwaukee, Wisconsin). If notice is given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
Whenever any notice whatever is required to be given to any Director under the
provisions of these By-laws or under the provisions of the Articles of
Association or under the provisions of any statute, a waiver thereof in writing,
signed at any time, whether before or after the time of meeting, by the director
entitled to such notice, shall be deemed equivalent to the giving of such
notice. The attendance of a Director at a meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 8. Quorum. A majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but a majority of the Directors present (though less than such
quorum) may adjourn the meeting from time to time without further notice.
Section 9. Manner of Acting. The act of the majority of the Directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the act of greater number is required by law or by the
Articles of Association or these By-laws.
Section 10. Vacancies. Any vacancy occurring in the Board of Directors by
resignation or death or by reason of the increase in the number of authorized
members of the Board as provided at Section 2 of this Article II may be filled
until the next succeeding annual election by appointment pursuant to the
affirmative vote of a majority of the Directors then in office.
Amended: 6/19/80
Section 11. Presumption of Assent. A Director of the Association who is present
at a meeting of the Board of Directors or a committee thereof at which action on
any corporate matter is taken shall be presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as Secretary of the meeting before the adjournment thereof or shall file his
written dissent by registered mail to the Secretary immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
<PAGE>
ARTICLE III
COMMITTEES
Amended: 2/19/87
Section 1. Executive Committee. The Board of Directors shall, at its regular
meeting held immediately following the annual meeting of shareholders, elect an
Executive Committee consisting of such number of members of the Board, not less
than six nor more than fifteen, as the Board may fix by resolution. The Chairman
of the Board and President shall be members of the Executive Committee. The
Board of Directors shall also elect six or more of its members to serve as
alternate members of the Executive Committee, which alternate members may be
called upon by the Chairman of the Executive Committee to serve in the absence
of any of the regular members. Any vacancy occurring in the Executive Committee
may be filled until the next succeeding annual election by appointment of the
Board of Directors.
The Executive Committee shall be vested with all the authority of the Board of
Directors and, subject to the control of the Board, shall direct the management
of the affairs of the Association in the interim between meetings of the Board.
The Executive Committee may require that it shall approve all loans and
discounts to any individual or entity which equal or exceed such aggregate
amount as the Executive Committee shall keep minutes of all of its meetings,
showing the matters considered and disposed of by it, which minutes shall be
presented to the Board of Directors at its next succeeding regular meeting.
The Executive Committee shall elect one of its members as Chairman of the
Executive Committee who may, but need not be, the Chairman of the Board of
Directors and/or the President. Such election shall be made annually at the
first meeting of the Executive Committee held after each annual meeting of the
shareholders. The Chairman of the Executive Committee shall hold office until
his successor shall have been duly elected and shall have qualified or until his
death, resignation or removal in the manner hereinafter provided. The Chairman
of the Executive Committee shall appoint a Secretary who need not be a member of
the Executive Committee.
Amended: 2/15/79; 7/19/79; 2/19/80; 9/18/80; 11/18/82; 2/19/87; 8/19/93
Section 2. Risk Examination Committee. The Board of Directors shall, at its
regular meeting held immediately following the annual meeting of shareholders,
elect a Risk Examination Committee consisting of not less than three members of
the Board, none of whom may be officers of the Association, except where the
full Board of Directors comprises the Risk Examination Committee. The Board of
Directors may also elect one or more of its members to serve as an alternate
member or members of the Risk Examination Committee, which alternate member or
members may be called upon by the Chairman of the Risk Examination Committee to
serve in the absence of any of the regular members.
The Board of Directors shall appoint the Chairman of the Risk Examination
Committee, who shall be a member of such Committee, and a Secretary, who need
not be a member of such Committee.
The Risk Examination Committee shall cause suitable examinations of the affairs
of the Association to be made by auditors responsible only to the Board of
Directors, in order to ascertain whether the Association is in sound financial
condition, and whether adequate internal audit controls and procedures are
<PAGE>
maintained. The Risk Examination Committee shall also review activities that
represent significant potential loss of income or assets of the Association. The
Risk Examination Committee shall, in addition, cause suitable examinations of
the Trust Department to be made by such independent auditors at least once
during each calendar year and within fifteen months of the last such audit for
the purpose of determining whether the Trust Department has been administered
according to law, the regulations of any governmental regulatory agency and
sound fiduciary principles. The results of each such examination, together with
the results of any examination made by the examining staff of any governmental
regulatory agency, shall be reviewed by the Risk Examination Committee and
reported to the Board of Directors, together with any recommended changes in the
manner of conducting the affairs of the Association as shall be deemed
advisable, and made a part of the records of the Association.
<PAGE>
Amended: 9/18/80; 2/19/87
Section 3. Trust Investment Committee. The Board of Directors shall, at its
regular meeting held immediately following the annual meeting of shareholders,
elect a Trust Investment Committee, consisting of such number of members of the
Board, not less than three nor more than fifteen, as the Board may fix by
resolution. The Board of Directors shall also elect six or more of its members
to serve as alternate members of the Trust Investment Committee, which alternate
members may be called upon by the Chairman of the Board to serve in the absence
of any of the regular members.
The Trust Investment Committee shall appoint a Chairman who shall be a member of
such Committee, and a Secretary, who need not be a member of such Committee.
All investments of trust funds shall be made, retained or disposed of only with
the authorization or approval of the Trust Investment Committee. The Trust
Investment Committee shall, at least annually, review each trust account to
determine the safety and value of its assets and advisability of retaining or
disposing of them. The Trust Investment Committee shall keep minutes of all of
its meetings, showing the disposition of all matters considered and passed on by
it, which minutes shall be presented to the Executive Committee at its next
succeeding regular meeting.
Amended: 11/15/73
Section 4. Officers' Loan Committees. The Executive Committee or the Board of
Directors may appoint such Officers' Loan Committees as it deems appropriate
from time to time, each such Committee shall consist of such number of officers
of the Association as the Executive Committee or the Board of Directors shall
determine by resolution. The Executive Committee or the Board of Directors may
also appoint one or more officers of the Association to serve as alternate
members of such Committees, which alternate members may be called upon by the
Chairman of the Board, President or the Chairman of the respective Committee to
serve in the absence of any of the regular members. The Executive Committee or
the Board of Directors shall designate the person who shall serve as Chairman of
each such Committee and each Committee shall appoint a Secretary who need not be
a member of the Committee.
Each such Officers' Loan Committee shall have such powers to discount and
purchase bills, notes and other evidences of debt, to buy and sell bills of
exchange, to examine and approve loans and discounts held by the Association as
the Executive Committee or the Board of Directors may from time to time specify
by resolution, subject at all times to the control of the Executive Committee
and the Board of Directors. Such Committees shall report their actions to each
regular meeting of the Executive Committee or Board of Directors, which shall
approve or disapprove the report and record such action in the minutes of their
meetings, but no such disapproval shall adversely affect the interests of any
customer or third party in any transaction or commitment made under the
authority of this Section.
Added: 11/15/73; 1/20/83
Section 5. Other Committees. The Board of Directors or Executive Committee by
resolution may designate one or more additional committees, each committee to
consist of such number of officers and/or directors of the Association as may be
specified in such resolution, provided, however, that a Plan Committee for any
pension plan established by the Association may consist of such officers,
directors,
<PAGE>
and/or employees of the Association as may be designated by the Board. Each such
committee shall have such powers in the management of the business and affairs
of the Association to the extent provided in said resolution as initially
adopted, and as thereafter supplemented or amended by further resolution adopted
by the Executive Committee or Board of Directors, except action in respect to
matters requiring action by the shareholders, Board of Directors, Executive
Committee or other committee established by or pursuant to these By-laws. The
Executive Committee or Board of Directors may specify one or more alternate
member of any such committee who may take the place of any absent members or
members at any meeting of such committee, upon request by the Chairman of the
Board, President or upon request by the chairman of such committee. Each such
committee shall fix its own rules governing the conduct of its activities and
shall report their actions to each regular meeting of the Executive Committee or
Board of Directors, which shall approve or disapprove the report and record such
action in the minutes of their meetings.
ARTICLE IV
OFFICERS
Amended: 2/16/78; 6/19/80; 9/15/88; 3/18/93
Section 1. Number and Qualifications. The principal officers of the Association
shall be a Chairman of the Board of Directors, a President, one or more
Executive, Senior and First Vice Presidents, a Cashier, a Trust Officer, a
Comptroller, and a Secretary, each of whom shall be appointed by the Board of
Directors. Such other officers, including Vice Presidents, and assistant
officers as may be deemed necessary may be appointed by the Board of Directors.
Any two or more offices may be held by the same person, except the offices of
President and Cashier, the offices of President and Secretary, and the offices
of President and Vice President. The Chairman of the Board of Directors and
President shall be members of the Board of Directors. Except to the extent such
power is limited by the Board of Directors, any officer authorized by these
By-laws or the Board of Directors to appoint officers may appoint one or more
other officers or assistant officers, and any officer making such an appointment
shall report the appointment to the Board of Directors at its next regular
meeting.
Section 2. Terms of Office. The officers of the Association shall be appointed
annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the shareholders. If officers shall
not be appointed at such meeting, they shall be appointed as soon thereafter as
conveniently may be. Each officer shall hold office until his successor shall
have been duly appointed and shall have qualified or until his death or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent appointed by the Board of Directors or
Executive Committee may be removed by the Board of Directors or Executive
Committee, as the case may be, whenever in its judgment the best interests of
the Association will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Appointment
shall not of itself create contract rights.
<PAGE>
Section 4. Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise shall be filled by the Board
of Directors for the unexpired portion of the term.
Amended: 3/18/93
Section 5. Principal Executive Officer. The principal executive officer of the
Association shall be either the Chairman of the Board or the President of the
Association, as is designated from time to time by the Board of Directors by
resolution duly adopted by a majority of its members at any regular or Special
Meeting. Subject to the control of the Board of Directors such principal
executive officer shall generally supervise and control all of the business and
affairs of the Association. The principal executive officer shall have
authority, subject to such rules as may be prescribed by the Board of Directors,
to appoint such agents, employees and, in accordance with Section 1 of this
Article, other officers of the Association as he or she shall deem necessary, to
prescribe their powers, duties and compensation, and to delegate authority to
them. Such agents, employees and officers shall hold office at the discretion of
the principal executive officer.
Amended: 1/16/69; 2/18/82
Section 6. Chairman of the Board. The Chairman of the Board shall, when present,
preside at all meetings of the shareholders and the Board of Directors. The
Chairman of the Board shall perform all such duties as may be prescribed by the
Board of Directors from time to time.
Amended: 1/16/69; 6/19/80; 2/18/82
Section 7. President. The President shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors from time to time. Unless the Board of Directors otherwise provides,
in the absence of the Chairman of the Board or in the event of his inability or
refusal to act, the President shall perform the duties of the Chairman of the
Board, and when so acting shall have all the powers of and be subject to all the
restrictions upon the Chairman of the Board. He may sign with the Cashier,
Secretary, Assistant Cashier or Assistant Secretary, or any other proper officer
of the Association thereunto authorized by the Board of Directors certificates
for shares of the Association.
Amended: 2/16/78
Section 8. Executive Vice President(s). The Executive Vice President(s) shall
consult with the Chairman of the Board and the President regarding the business
and affairs of the Association and shall perform such duties as may be
prescribed by the Chairman of the Board, the President and the Board of
Directors from time to time. In the absence of the President, or in the event of
his inability or refusal to act, the Board of Directors may designate one
Executive Vice President to perform the duties of President and when so acting
said Executive Vice President shall have all of powers of and be subject to all
of the restrictions upon the President.
Section 9. The Vice Presidents. In the absence of the Chairman of the Board, the
President and the Executive Vice President, or in the event of their inability
or refusal to act, the Vice President (or in the event there be more than one
Vice President, the Vice Presidents in the order designated by resolution of
<PAGE>
the Board of Directors, or in the absence of any designation, then in the order
of their appointment) shall perform the duties of the Chairman of the Board and
the President (except for presiding at meetings of the shareholders, of the
Board of Directors and of the Executive Committee), and when so acting shall
have all the powers of and be subject to all the restrictions upon the Chairman
of the Board and/or President. Any Vice President may sign, with the Cashier,
certificates for shares of the Association; and shall perform such other duties
as from time to time may be assigned to him by the Chairman of the Executive
Committee, the Chairman of the Board, the President, or by the Board of
Directors.
Amended: 6/19/80
Section 10. The Cashier. The Cashier and the Secretary, or either of them, shall
(a) be custodians of the corporate records and of the seal of the Association
and see that the seal of the Association is affixed to all documents the
execution of which on behalf of the Association under its seal is duly
authorized; and (b) sign with the President, or a Vice President, certificates
for shares of the Association, the issuance of which shall have been authorized
by resolution of the Board of Directors. The Cashier shall have and may exercise
any and all other powers and duties pertaining by law, regulation or practice,
to the officer of Cashier or imposed by these By-laws and shall perform such
other duties as from time to time may be assigned to him by the Chairman of the
Board, the President or by the Board of Directors.
Section 11. Comptroller. The Comptroller shall be responsible for the accuracy
and proper maintenance of all accounting records of the Association in
accordance with generally recognized principles of accounting acceptable to the
Board of Directors. He shall prepare and furnish to the Board periodic reports
showing the financial condition and results of operations of the Association,
together with such other information as he may be called upon from time to time
to furnish. The Comptroller shall also perform such other duties as may be
assigned to him directly or indirectly, by the Chairman of the Board, the
President or the Board of Directors. The Comptroller shall be responsible to the
Board of Directors of the Association and shall report to the Board directly or
through the Chairman of the Board.
Added: 6/19/80
Section 12. The Secretary. The Secretary of the Association shall: (a) keep the
minutes of the shareholders' and of the Board of Directors' meetings in one or
more books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-laws or as required by law; (c)
advise all members of the Board of Directors immediately upon their election as
such; (d) along with the Cashier, or either of them, be custodians of the
corporate records and of the seal of the Association and see that the seal of
the Association is affixed to all documents the execution of which on behalf of
the Association under its seal is duly authorized; (e) keep a register of the
post office address of each shareholder; (f) sign with the President, or a Vice
President, certificates for shares of the Association, the issuance of which
shall have been authorized by resolution of the Board of Directors, as duties of
the Cashier. The Secretary shall perform such other duties as from time to time
may be assigned to him by the Chairman of the Board, the President or by the
Board of Directors.
Renumbered: 6/19/80
Section 13. Assistants and Acting Officers. The Board of Directors shall have
the power to appoint any person to act as assistant to any officer, or to
perform the duties of such officer whenever for any reason it is impracticable
for such officer to act personally, and such assistant or acting officer so
appointed by
<PAGE>
the Board of Directors shall have the power to perform all the duties of the
office to which he is so appointed to be assistant, or as to which he is so
appointed to act, except as to such power may be otherwise defined or restricted
by the Board of Directors.
ARTICLE V
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Amended: 6/19/80
Section 1. Certificates for Shares. Certificates representing shares of the
Association shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or Vice President
and by the Cashier, Assistant Cashier, Secretary or Assistant Secretary. All
certificates for shares shall be consecutively numbered or otherwise identified.
The name and address of the person to whom the shares represented thereby are
issued, with the number of shares and the date of issue, shall be entered on the
stock transfer books of the Association. All certificates surrendered to the
Association for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and indemnity to
the Association as the Board of Directors may prescribe.
Amended: 6/19/80
Section 2. Facsimile Signatures and Seal. The Seal of the Association on any
certificates for shares may be a facsimile. The signatures of the President or
Vice President, the Cashier or Assistant Cashier and the Secretary or Assistant
Secretary upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent, or registered by a registrar, other than the
Association itself or an employee of the Association.
Amended: 6/19/80
Section 3. Signature by Former Officers. In case any officer, who has signed or
whose facsimile signature has been placed upon any certificate for shares, shall
have ceased to be such officer before such certificate is issued, it may be
issued by the Association with the same effect as if he were such officer at the
date of its issue.
Section 4. Transfer of Shares. Prior to due presentment of a certificate for
shares for registration or transfer the Association may treat the registered
owner of such shares as the person exclusively entitled to vote, to receive
notifications and otherwise to exercise all the rights and powers of an owner.
Where a certificate for shares is presented to the Association with a request to
register for transfer, the Association had no duty to inquire into adverse
claims or has discharged any such duty. The Association may require reasonable
assurance that said endorsements are genuine, effective and in compliance with
such other regulations as may be prescribed under the authority of the Board of
Directors.
<PAGE>
Section 5. Stock Regulations. The Board of Directors shall have the power and
authority to make all such further rules and regulations not inconsistent with
law as it may deem expedient concerning the issue, transfer and registration of
certificates representing shares of the Association.
ARTICLE VI
CONTRACTS
Amended: 3/18/76
The Board of Directors may authorize any officer or officers, agent or agents,
to enter into any contract, execute and deliver any instrument in the name of
and on behalf of the Association, execute checks, drafts, bills of exchange,
orders, letters of credit and other obligations of the Association, transmit and
receive funds of the Association, direct the transfer of such funds by others
and enter into agreements which authorize others, on terms and conditions set
forth therein, to transmit, receive and direct transfer of such funds by
telegraphic, telephonic, electronic or other means, and such authorization may
be general or confined to specific instances.
<PAGE>
ARTICLE VII
AMENDMENTS
These By-laws may be altered, amended or repealed and new By-laws may be adopted
by the shareholders or Board of Directors by majority vote at any regular
meeting or special meeting noticed for such purpose. Any By-law adopted by the
Board of Directors shall be subject to amendment or repeal by the shareholders
as well as by the Directors.
ARTICLE VIII
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be circular in
form and shall have inscribed thereon the name of the Association and the words
"Corporate Seal."
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Definitions of Terms for this Article.
(a) "Director or Officer" shall include any person who may have served at the
request of the Association as a director or officer of another corporation in
which the Association owned stock or was a creditor at any time during the
period of said service, and all past, present and future directors and officers
of the Association whether or not so serving at the time of incurring the
expenses or liabilities referred to herein, and their personal representatives.
(b) "Expenses" shall include, without limiting the generality thereof, amounts
paid or payable as fees of legal counsel and experts.
(c) "Action" means any civil, criminal or administrative action, suit,
proceeding or claim, or threat thereof, in which a director or officer may be
involved as a party or otherwise, by reason of his having served as such
director or officer or by reason of anything done or omitted by him as such
director or officer, or alleged to have been so done or omitted.
<PAGE>
(d) "Determination by the Board of Directors" means a determination made by
resolution, upon favorable advice by counsel for the Association, adopted by the
affirmative vote of a majority of a committee consisting of all directors of the
Association then in office, other than those involved in the action, provided
that there are not less than three, such determination shall be deemed to have
been made if recommended by affirmative vote of a majority of the directors of
the Association then in office (whether or not involved in the action) but only
to the extent concurred in by either (i) the affirmative vote of a majority of
the outstanding shares entitled to vote at a meeting of the shareholders called
for that purpose, or (ii) the opinion of independent legal counsel selected by
the Board of Directors.
Section 2. Mandatory Indemnification. The Association shall indemnify each
director or officer against all expenses actually and reasonably incurred by him
in connection with any action and against all liability to which he is subjected
upon disposition of any action, if either (a) final disposition of such action
is made in favor of such director or officer or (b) he is adjudged to be not
guilty of gross negligence or misconduct in the performance of duty to the
Association in the matter.
Section 3. Assumption of Defense and Liability. If any director or officer, who
is involved in any action for which mandatory indemnification might be required
under Section 1 in the event of favorable adjudication thereof, shall make full
disclosure to the Board of Directors of or to counsel for the Association of the
pertinent facts not otherwise known to the Association, and if there shall be
made a determination by the Board of Directors that in its opinion such director
or officer was not guilty of negligence or misconduct in the performance of duty
to the Association in the matter, the Association shall assume or provide at the
Association's expense and risk the defense or settlement thereof on his behalf;
and in such event such director or officer shall have no liability to the
Association for any expense, liability or settlement payment incurred by the
Association in the matter.
Section 4. Insurance. The Association may upon affirmative vote of a majority of
its Board of Directors, purchase commercial insurance for the benefit of a
director or officer against all or any part of the expenses of actions against
such director or officer; and such insurance need not exclude actions in which
such director or officer may thereafter be adjudged guilty of negligence or
misconduct in the performance of duty to the Association. Such insurance may,
but need not, be for the benefit of all directors or officers.
Section 5. Further Assumption or Sharing of Expense and Liability. If complete
indemnification of expense, liability or settlement payments is not provided
pursuant to Sections 2, 3 and 4 to any director or officer, the Association may
grant such further indemnification in whole or in part as may be fixed by
determination by the Board of Directors upon consideration of the circumstances
of the individual action.
Section 6. Liability for Determination. The Association and its directors,
officers, employees and agents shall not be liable to anyone for making any
determination as to the existence or absence of liability under any of Section 2
through 5 above, or for making or refusing to make any payment thereunder on the
basis of such determination, or for taking or omitting to take any other action
thereunder in reliance upon advice of counsel.
Section 7. Other Rights. The foregoing indemnification provisions shall be in
addition, and may be claimed without prejudice, to any other rights which any
director, officer, employee or agent may have.
<PAGE>
ARTICLE X
EMERGENCY PROVISIONS
Section 1. Applicability. The provisions of this Article shall be of no effect
until the occurrence of a state of emergency resulting in this Association being
unable to continue its normal functions under the direction of established
management and at the location of its main office (in this Article referred to
as "Emergency"), which Emergency may include but shall not be limited to war or
war-like disaster. Upon such occurrence and during the continuation of such
Emergency:
(a) the provisions of this Article shall become effective forthwith and shall
remain so effective without further authorization or declaration, unless
otherwise determined by the Board of Directors or other body performing the
powers of the Board of Directors as provided in these By-laws or under any
governmental directives, and
(b) so far as the provisions of this Article are in conflict with the provisions
of any other By-law or resolution theretofore adopted, the provisions of this
Article shall prevail.
Section 2. Temporary Offices. Upon the occurrence and during the continuation of
such an Emergency of sufficient severity so as to prevent this Association from
carrying on its normal banking functions at the location of its main office, any
or all of the business ordinarily conducted at such location shall be
temporarily relocated elsewhere in suitable quarters, which may be or include
but need not be limited to an established branch office of this Association, as
may be designated by the Board of Directors or other body performing the powers
of the Board of Directors as provided in these By-laws or under any governmental
directives. Such relocated place of business shall be within the City of
Milwaukee if a suitable location within such City is available. Any temporary
relocated place of business shall be returned to its original or other legally
authorized location as soon as practicable and such temporary place of business
shall then be discontinued.
Section 3. Emergency Executive Committee. Upon the occurrence and during the
continuance of such an Emergency of sufficient severity so as to prevent the
conduct and management of the affairs and business of this Association by its
Board of Directors and the regularly established committees thereof:
(a) There is hereby created an Emergency Executive Committee, which may exercise
the full powers and authority of the Board of Directors and of any other
regularly established Committee of the Board of Directors until the Board of
Directors or other such established committee may be available to resume
exercise of its functions.
<PAGE>
(b) Such Emergency Executive Committee shall consist of the then available
members of the Board of Directors, any three of whom shall constitute a quorum.
Whenever less than three regularly elected directors of this Association shall
be available to serve on such Emergency Executive Committee, the place of any
absent director may be taken by any person, designated by prior resolution of
the Board of Directors of First Wisconsin Bankshares Corporation (as holder of
more than 98% of the outstanding shares of this Association), to serve as an
acting director and member of the Emergency Executive Committee until not less
than three regularly elected directors of this Association are available to
serve.
(c) The Emergency Executive Committee may meet upon such notice and at such
times and places, as the person performing the powers and duties of President
may determine to be practicable under Emergency conditions. Approval by any
member of any matter or action, given by written, telegraphic or telephone
consent, shall have the same effect as a vote taken at a meeting.
Amended: 6/19/80
Section 4. Emergency Officer Succession. If during any Emergency, neither the
Chairman of the Board, nor the President, nor the Executive Vice President of
this Association can be located by the then acting main office or is unable to
assume or to continue normal executive duties, then the authority and duties of
such officer shall without further action of the Board of Directors, be
automatically assumed temporarily by the Senior Vice Presidents of the Bank and
such monthly amounts of Pension Plan Benefits shall be calculated according to
the applicable method of payment as provided under the Pension Plan, including
any such method or payment option validly elected by the Eligible Employee or
his Beneficiary thereunder.
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
Firstar Bank Milwaukee, N.A., as Trustee herein named, hereby consents that
reports of examination of said Trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
FIRSTAR BANK MILWAUKEE, N.A.
(Trustee)
By: /s/ Yvonne Siira
Yvonne Siira, Assistant Vice President
(Name and title)
By: /s/ Pamela Warner
Pamela Warner, Assistant Secretary
(Name and title)
Dated: December 11, 1998
<PAGE>
EXHIBIT 7
Legal Title of Bank: Firstar Bank Milwaukee, N.A.
Address: 777 East Wisconsin Avenue
City, State Zip: Milwaukee, Wisconsin 53202
FDIC Certificate No.: | 0 | 5 | 3 | 0 | 8 |
Call Date: 12/31/97 ST-BK: 55-9180 FFIEC 031
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
Schedule RC--Balance Sheet
<CAPTION>
|C400 |
Dollar Amounts in Thousands RCFD Bil Mil Thou
ASSETS
<S> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): . | / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1)................. 0081 690,396 1.a.
b. Interest-bearing balances (2).......................................... 0071 5,324 1.b.
2. Securities .............................................................. | / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, Column A):............ 1754 533,471 2.a.
b. Available-for-sale securities (from Schedule RC-B, Column D)........... 1773 483,764 2.b.
3. Federal funds sold and securities purchased under agreements to resell ... 1350 851,589 3.
4. Loans and lease financing receivables:..................................... | / / / / / / / / / |
a. Loans and leases, net of unearned income .............................. | / / / / / / / / / |
(from Schedule RC-C)......................... | RCFD 2122 | 4,605,912 | / / / / / / / / / | 4.a.
b. LESS: Allowance for loan and lease losses... | RCFD 3123 | 71,941 | / / / / / / / / / | 4.b.
c. LESS: Allocated transfer risk reserve....... | RCFD 3128 | 0 | / / / / / / / / / | 4.c.
d. Loans and leases, net of unearned income, allowance, and reserve....... | / / / / / / / / / |
(Item 4.a. minus 4.b. and 4.c.)........................................ 2125 4,533,971 4.d.
5. Trading assets (from Schedule RC-D)........................................ 3545 9,318 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 131,024 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 1,205 7.
8. Investments in unconsolidated subsidiaries and associated companies........ | / / / / / / / / / |
(from Schedule RC-M)....................................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding............... 2155 7,084 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 26,939 10.
11. Other assets (from Schedule RC-F).......................................... 2160 108,520 11.
12. Total assets (sum of items 1 through 11)................................... 2170 7,382,605 12.
- -----------
(1) Includes cash items in process of collection and unposted debits (2)
Includes time certificates of deposit not held for trading
LIABILITIES
13. Deposits: .............................................................. | / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from............. | / / / / / / / / / |
Schedule RC-E, part 1)................................................. RCON 2200 4,503,091 13.a.
(1) Noninterest-bearing (1)...................| RCON 6631 | 1,535,600 | / / / / / / / / / | 13.a.(1)
(2) Interest-bearing..........................| RCON 6636 | 2,967,491 | / / / / / / / / / | 13.a.(2)
b. In foreign offices, Edge and Agreement ................................ | / / / / / / / / / |
subsidiaries, and IBFs (from Schedule RC-E, part II)................... RCFN 2200 232,771 13.b.
(1) Noninterest-bearing.......................| RCFN 6631 | 960 | / / / / / / / / / | 13.b.(1)
(2) Interest-bearing..........................| RCFN 6636 | 231,811 | / / / / / / / / / | 13.b.(2)
<PAGE>
<CAPTION>
C400 |
Dollar Amounts in Thousands RCFD Bil Mil Thou
LIABILITIES (continued)
<S> <C>
14. Federal funds purchased and securities sold under agreements to repurchase. RCON 2800 1,259,149 14.
15. a. Demand notes issued to the U.S. Treasury............................... RCON 2840 410,759 15.a.
b. Trading liabilities (From Schedule RC-D)............................... RCFD 3548 8,381 15.b.
16. Other borrowed money (including mortgage indebtedness and obligations under | / / / / / / / / / |
capitalized leases).................................................... | / / / / / / / / / |
a. With a remaining maturity of one year or less.......................... RCFD 2332 3,253 16.a.
b. With a remaining maturity of more than one year through three years.... RCFD A547 0 16.b.
c. With a remaining maturity of more than three years..................... RCFD A547 20,000 16.c.
17. Not applicable............................................................. | / / / / / / / / / |
18. Bank's liability on acceptances executed and outstanding................... RCFD 2920 7,084 18.
19. Subordinated notes and debentures (2)...................................... RCFD 3200 293,678 19.
20. Other liabilities (from Schedule RC-G)..................................... RCFD 2930 96,576 20.
21. Total liabilities (sum of items 13 through 20)............................. RCFD 2948 6,834,742 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................. RCFD 3838 0 23.
24. Common stock .............................................................. RCFD 3230 75,60024
25. Surplus (exclude all surplus related to preferred stock)................... RCFD 3839 126,843 25.
26. a. Undivided profits and capital reserves................................. RCFD 3632 339,860 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities RCFD 8434 5,560 26.b.
27. Cumulative foreign currency translation adjustments........................ RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27).......................... RCFD 3210 547,863 28.
29. Total liabilitiesand equity capital (sum of items 21 and 28)............... RCFD 3300 7,382,605
29.
MEMORANDUM
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the Number bank by independent Number
external auditors as of any date during 1994............................... RCFD 6724 N/A M.1.
1 = Independent audit of the bank 5 = Review of the bank's financial
conducted in accordance with statements by external auditors.
generally accepted auditing
standards by a certified public
accounting firm which submits
a report on the bank.
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted financial statements by external
in accordance with generally auditors.
accepted auditing standards by a
certified public accounting firm
which submits a report on the
consolidated holding company
(but not on the bank separately).
3 = Directors' examination of the 7 = Other audit procedures (excluding
bank conducted in accordance tax preparation work).
with generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority).
4 = Directors' examination of the 8 = No external audit work.
bank performed by other external
auditors (may be required by
state chartering authority).
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
