SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
-----------------------
Date of Report
(Date of earliest
event reported): October 27, 1998
Wisconsin Power and Light Company
(Exact name of registrant as specified in its charter)
Wisconsin 0-337 39-0714890
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
222 West Washington Avenue, Madison, Wisconsin 53703
(Address of principal executive offices, including zip code)
(608) 252-3311
(Registrant's telephone number)
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Item 5. Other Events.
On October 27, 1998, Wisconsin Power and Light Company (the "Company")
agreed to sell $60,000,000 principal amount of its 5.70% Debentures due October
15, 2008 (the "Debentures") in a public offering through Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Robert W. Baird & Co. Incorporated and Legg Mason
Wood Walker, Incorporated. The closing for the sale of the Debentures is
scheduled for October 30, 1998. The Debentures are registered on a Registration
Statement on Form S-3 (Registration No. 333-60375) as filed with the Securities
and Exchange Commission. Final versions of the Purchase Agreement, by and
between the Company and the underwriters, including Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and the Officers' Certificate creating the
Debentures are filed herewith.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
The exhibits listed in the accompanying Exhibit Index
are filed as part of this Current Report on Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WISCONSIN POWER AND LIGHT COMPANY
Date: October 28, 1998 By: /s/ Robert A. Rusch
Robert A. Rusch
Assistant Treasurer
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WISCONSIN POWER AND LIGHT COMPANY
EXHIBIT INDEX TO FORM 8-K
Report Dated October 27, 1998
Exhibit
(1) Purchase Agreement, dated as of October 27, 1998, by and between
Wisconsin Power and Light Company and the underwriters, including Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
(4) Officers' Certificate, dated as of October 27, 1998, executed and
delivered in connection with the issuance and sale of Wisconsin Power and
Light Company's 5.70% Debentures due October 15, 2008.
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================================================================================
WISCONSIN POWER AND LIGHT COMPANY
(a Wisconsin corporation)
5.70% DEBENTURES DUE October 15, 2008
PURCHASE AGREEMENT
Dated: October 27, 1998
================================================================================
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TABLE OF CONTENTS
Page
PURCHASE AGREEMENT...................................................... 1
SECTION 1. Representations and Warranties......................... 2
(a) Representations and Warranties by the Company.......... 2
(i) Compliance with Registration Requirements..... 3
(ii) Incorporated Documents........................ 3
(iii) Independent Accountants....................... 4
(iv) Financial Statements.......................... 4
(v) No Material Adverse Change in Business........ 4
(vi) Due Organization of the Company............... 4
(vii) No Significant Subsidiaries................... 5
(viii) Capitalization................................ 5
(ix) Authorization of Agreement.................... 5
(x) Authorization of the Indenture................ 5
(xi) Authorization of the Securities............... 5
(xii) Description of the Securities and
the Indenture................................. 5
(xiii) Absence of Defaults and Conflicts............. 6
(xiv) Absence of Work Stoppage...................... 6
(xv) Absence of Proceedings........................ 6
(xvi) Absence of Further Requirements............... 7
(xvii) Possession of Licenses and Permits............ 7
(xviii) Title to Property............................. 7
(xix) Environmental Laws............................ 8
(b) Officer's Certificates................................. 8
SECTION 2. Sale and Delivery to Underwriters; Closing............. 8
(a) Securities............................................. 8
(b) Payment................................................ 9
(c) Denominations; Registration............................ 9
SECTION 3. Covenants of the Company............................... 9
(a) Compliance with Securities Regulations and
Commission Requests.................................... 9
(b) Filing of Amendments................................... 10
(c) Delivery of Registration Statements.................... 10
(d) Delivery of Prospectuses............................... 10
(e) Continued Compliance with Securities Laws.............. 10
(f) Blue Sky Qualifications................................ 11
(g) Rule 158............................................... 11
(h) Use of Proceeds........................................ 11
(i) Restriction on Sale of Securities...................... 12
(j) Reporting Requirements................................. 12
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Page
SECTION 4. Payment of Expenses.................................... 12
(a) Expenses............................................... 12
(b) Termination of Agreement............................... 12
SECTION 5. Conditions of Underwriters' Obligations................ 12
(a) Effectiveness of Registration Statement................ 13
(b) Opinion of Counsel for Company......................... 13
(c) Opinion of Counsel for Underwriters.................... 13
(d) Officers' Certificate.................................. 13
(e) Accountant's Comfort Letter............................ 14
(f) Bring-down Comfort Letter.............................. 14
(g) Maintenance of Rating.................................. 14
(h) Regulatory Approval.................................... 14
(i) Additional Documents................................... 14
(j) Termination of Agreement............................... 14
SECTION 6. Indemnification........................................ 15
(a) Indemnification of Underwriters........................ 15
(b) Indemnification of Company, Directors and Officers..... 16
(c) Actions against Parties; Notification.................. 16
(d) Settlement without Consent if Failure to Reimburse..... 16
SECTION 7. Contribution........................................... 17
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery....................................... 18
SECTION 9. Termination of Agreement............................... 18
(a) Termination; General................................... 18
(b) Liabilities............................................ 19
SECTION 10. Default by One or More of the Underwriters............. 19
SECTION 11. Notices................................................ 19
SECTION 12. Parties................................................ 20
SECTION 13. Governing Law and Time................................. 20
SECTION 14. Effect of Headings..................................... 20
SCHEDULES
Schedule A - List of Underwriters...........................Sch A-1
Schedule B - Pricing Information............................Sch B-1
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Page
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel...................A-1
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Wisconsin Power and Light Company
(a Wisconsin corporation)
$60,000,000
5.70% Debentures due October 15, 2008
PURCHASE AGREEMENT
October 27, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
as Representatives of the Underwriters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Wisconsin Power and Light Company, a Wisconsin corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch is acting as representative (in such
capacity, the "Representative"), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth in said Schedule A of $60,000,000
aggregate principal amount of the Company's unsecured 5.70% Debentures due
October 15, 2008 (the "Securities"). The Securities are to be issued pursuant to
an indenture dated as of June 20, 1997 (the "Indenture") between the Company and
Firstar Trust Company, a Wisconsin state banking corporation (succeeded by
Firstar Bank Milwaukee, N.A.), as trustee (the "Trustee"). The term "Indenture,"
as used herein, includes the Officers' Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to Sections 2.01 and
2.02 of the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-60375) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of
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Rule 430A ("Rule 430A") of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus
(including the prospectus supplement), as well as the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." If Rule 434 is relied on,
the term "Prospectus" shall refer to the preliminary prospectus dated October
26, 1998 together with the Term Sheet and all references in this Agreement to
the date of the Prospectus shall mean the date of the Term Sheet. For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
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(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time, the
Registration Statement, the Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments
or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time,
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used,
the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different," as such term is
used in Rule 434, from the Prospectus included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Merrill Lynch
expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed
as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection
with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
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effective, at the time the Prospectus was issued and at the
Closing Time, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly in all material
respects the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary
financial information of the Company included in the Prospectus
present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for
regular dividends on the Company's common stock, par value $5.00
per share, and preferred stock, without par value, in amounts per
share that are consistent with past practice, or the applicable
charter document or supplement thereto, respectively, there has
been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(vi) Due Organization of the Company. The Company has been
duly organized and is validly existing as a corporation under the
laws of the State of Wisconsin and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
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(vii) No Significant Subsidiaries. The only subsidiaries of the
Company are listed on Exhibit 21 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997. The Company has no
"significant subsidiary" as defined in Rule 1-02 of Regulation
S-X.
(viii) Capitalization. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been
duly authorized, executed and delivered by the Company and duly
qualified under the 1939 Act and, assuming due execution and
delivery by the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (A) as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally, and (B) as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have been
duly authorized and, at the Closing Time, will have been duly
executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects
to the respective statements relating thereto contained in the
Prospectus and the Officers' Certificate creating such Securities
and the Indenture will be in substantially the respective forms
filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
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(xiii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would
not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the Securities
have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults, events or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
(x) the charter or by-laws of the Company or any subsidiary
(except for any such violation with respect to any such subsidiary
that would not, individually or the aggregate, result in a
Material Adverse Effect) or (y) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations, except for any such violations
with respect to this clause (y) as would not, individually or in
the aggregate, result in a Material Adverse Effect. As used
herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xiv) Absence of Work Stoppage. No work stoppage with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent work stoppage by the employees
of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to
be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
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expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company
of its obligations hereunder; the aggregate of all pending legal
or governmental proceedings to which the Company or any subsidiary
is a party or of which any of their respective property or assets
is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation
of the transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture by the
Company, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws, except for the qualification of the Indenture
under the 1939 Act and except for certain filings required by or
pursuant to the Final Order of the Public Service Commission of
Wisconsin and under the Public Utility Holding Company Act of
1935, as amended.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business
now operated by them, except where the failure to possess any such
Governmental Licenses would not have a Material Adverse Effect;
the Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material
Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect. Without limiting the foregoing, the
Company has received a Final Order of the Public Service
Commission of Wisconsin authorizing the issuance of the Securities
and such issuance is in compliance with the terms and conditions
of such order.
(xviii) Title to Property. The Company has good and marketable
title to all real property owned by it and good title to all other
properties owned by it, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such
property by the Company; and all of the leases and subleases
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material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectus,
are in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or
such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease, except where
such would not have a Material Adverse Effect.
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous
Materials or the violation of any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to
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purchase from the Company, at the price set forth in Schedule B, the aggregate
principal amount of Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of the Company,
222 West Washington Avenue, Madison, Wisconsin 53703, or at such other place as
shall be agreed upon by the Representative and the Company, at 10:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Representative for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities
shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Representative may request in writing at least
one full business day before the Closing Time. The Securities will be made
available for examination and packaging by the Representative in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with
the requirements of Rule 430A or Rule 434, as applicable, and will
notify the Representative immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii)
of the receipt of any comments with respect to the Registration
Statement or any amendment thereto from the Commission, (iii) of
any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the
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suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representative notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b)), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representative and counsel for
the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to
each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter may reasonably request,
and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations, the
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1934 Act and the 1934 Act Regulations and the 1939 Act and the
1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement
and in the Prospectus. If at any time when the Prospectus is
required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist
as a result of which it is necessary, in the reasonable opinion of
counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion
of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Representative
may designate and to maintain such qualifications in effect for a
period of not less than six months from the later of the effective
date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall
not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than six months from the effective
date of the Registration Statement and any Rule 462(b)
Registration Statement. The Company will also supply the
Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment
under the laws of such jurisdictions as the Underwriters may
reasonably request.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds."
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(i) Restriction on Sale of Securities. During a period of 30
days from the date of the Prospectus, the Company will not,
without the prior written consent of Merrill Lynch, directly or
indirectly, issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise transfer or dispose of, any
debt securities of the Company which mature more than one year
after the Closing Time.
(j) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(k) Compliance with the Final Order of the Public Service
Commission of Wisconsin. The Company will comply with the terms
and conditions of the Final Order of the Public Service Commission
of Wisconsin issued on October 16, 1998.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the printing and delivery to the Underwriters of this Agreement,
any Agreement among Underwriters, the Indenture and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of any
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, provided, that, counsel fees in connection therewith do not exceed
$5,000, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities and
(ix) any fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by
the Representative in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance in all
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<PAGE>
material respects by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has
become effective under the 1933 Act and at Closing Time no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule
424(b) (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinion, dated as
of Closing Time, of Foley & Lardner, counsel for the Company, in
form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth
in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as
of Closing Time, of Chadbourne & Parke LLP, counsel for the
Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, with respect to the
matters set forth in clauses (iv) through (x), inclusive, and the
penultimate paragraph of Exhibit A hereto. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representative
shall have received a certificate of the Chief Executive Officer,
the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied in all material respects with all
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<PAGE>
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Representative shall have received from
Arthur Andersen LLP a letter dated such date, in form and
substance reasonably satisfactory to the Representative, together
with signed or reproduced copies of such letter for each of the
other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representative shall have received from Arthur Andersen LLP a
letter, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection
(e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing
Time.
(g) Maintenance of Rating. At Closing Time, the Securities
shall be rated at least AA3 (negative watch) by Moody's Investors
Service, Inc. and A+ by Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., and the Company shall
have delivered to the Representative a letter, dated the Closing
Time, from each such rating agency, or other evidence satisfactory
to the Representative, confirming that the Securities have such
ratings; and since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the
Securities or any of the Company's other debt securities by any
"nationally recognized statistical rating agency", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the
1933 Act Regulations, and no such organization shall have publicly
announced that it has under surveillance or review its rating of
the Securities or any of the Company's other debt securities.
(h) Regulatory Approval. The Company shall have received all
regulatory approvals necessary in order to issue the Securities,
including without limitation a Final Order of the Public Service
Commission of Wisconsin.
(i) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such additional
documents as they may reasonably request to enable them to pass
upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained.
(j) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to
be fulfilled, this Agreement may be terminated by the
Representative by notice to the Company at any time at or prior to
Closing Time, and such termination shall be without liability of
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any party to any other party except as provided in Section 4 and
except that Sections 6 and 7 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
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(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch
(which counsel shall be reasonably acceptable to the Company), and, in the case
of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company (which counsel shall be
reasonably acceptable to Merrill Lynch). An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel it is otherwise
entitled under this Agreement, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
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settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party (x) shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement and
(y) to the extent it shall not have so reimbursed such indemnified party for
such fees and expenses prior to the date of such settlement, it shall not have
provided written notice to such indemnified party setting forth in reasonable
detail why such indemnified party is not entitled to reimbursement of such fees
and expenses.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of
the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the good faith judgment of the Representative,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the American Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental
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authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided, further, that
Sections 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the
Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to
be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at North Tower, World
Financial Center, New York, New York 10281-1201, attention of John Thorndike;
and notices to the Company shall be directed to it at 222 West Washington
Avenue, Madison, Wisconsin 53703, attention of Edward M. Gleason.
19
<PAGE>
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
WISCONSIN POWER AND LIGHT COMPANY
By: /s/ Erroll B. Davis, Jr.
Name: Erroll B. Davis, Jr.
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Anthony V. Leness
Name: Anthony V. Leness
Title: Managing Director
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
<PAGE>
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................ $45,000,000
Robert W. Baird & Co.
Incorporated................................ $7,500,000
Legg Mason Wood Walker,
Incorporated................................ $7,500,000
------------
Total..................................................... $60,000,000
============
Sch A-1
<PAGE>
SCHEDULE B
Wisconsin Power and Light Company
$60,000,000 Unsecured Debt Securities
1. The initial public offering price of the Securities shall be
99.913% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.263% of the principal amount thereof.
3. The interest rate on the Securities shall be 5.70% per annum.
Sch B - 1
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is validly existing as a corporation under the
laws of the State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) To the best of our knowledge, the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except (A) as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally, (B) as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and (C) as enforcement of those provisions set forth in
Schedule 1 hereto may be limited under the laws of the State of Wisconsin, but
the inclusion of such provisions does not affect the validity of the Indenture,
and the Indenture contains legally adequate provisions for the realization of
the principal legal rights and benefits offered thereby.
(vi) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today and payment of the consideration for the
Securities as specified in the Purchase Agreement has been made, the Securities
have been duly executed, issued and delivered by the Company and constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except (A) as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally, (B) as enforcement thereof
is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and (C) as enforcement of those
provisions set forth in Schedule 2 may be limited
A-1
<PAGE>
under the laws of the State of Wisconsin, but the inclusion of such provisions
does not affect the validity of the Securities, and the Securities contain
legally adequate provisions for the realization of the principal legal rights
and benefits offered thereby, and will be entitled to the benefits of the
Indenture.
(vii) The Indenture has been duly qualified under the 1939 Act.
(viii) The Securities and the Indenture conform as to legal matters
in all material respects to the descriptions thereof contained in the
Prospectus.
(ix) The Registration Statement has been declared effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b); and,
to the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(x) The Registration Statement, including the Rule 430A
Information, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements,
supporting schedules and other financial or statistical data included therein or
omitted therefrom, and the Trustee's Statement of Eligibility on Form T-1 (the
"Statement of Eligibility"), as to which we express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(xi) The documents incorporated by reference in the Prospectus
(other than the financial statements, supporting schedules and other financial
or statistical data included therein or omitted therefrom, as to which we
express no opinion), when they were filed with the Commission complied as to
form in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder.
(xii) To the best of our knowledge and other than as set forth in
the Prospectus, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which the Company or any wholly-owned subsidiary is
a party, or to which the property of the Company or any wholly-owned subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which, if determined adversely, would result in a Material
Adverse Effect.
(xiii) The information in the Prospectus under "Description of the
Debentures" and "Certain Terms of the Debentures," to the extent that it
constitutes matters of law, summaries of legal matters, the Company's charter
and bylaws or legal proceedings, or legal conclusions, has been reviewed by us
and is correct in all material respects.
(xiv) To the best of our knowledge, the Company is not in violation
of its charter or by-laws and no default by the Company exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture,
A-2
<PAGE>
mortgage, loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the Prospectus or
filed or incorporated by reference as an exhibit to the Registration Statement.
(xv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, except for the qualification
of the Indenture under the 1939 Act and except for certain filings required by
or pursuant to the Final Order of the Public Service Commission of Wisconsin and
under the Public Utility Holding Company Act of 1935, as amended, relating to
the Debentures, as to which we express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement or the due execution, delivery or performance of the Indenture by the
Company or for the offering, issuance, sale or delivery of the Securities.
(xvi) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use Of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreement, the Indenture and the Securities do
not and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(xiii) of the Purchase Agreement) under or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, filed as an exhibit to the Registration Statement and to which the
Company is a party or by which it may be bound, or to which any of the property
or assets of the Company is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its properties, assets or operations.
Nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom and the Statements of
Eligibility, as to which we make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial or statistical data included or
incorporated by reference therein or omitted therefrom and the Statements of
Eligibility, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary
A-3
<PAGE>
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-4
WISCONSIN POWER AND LIGHT COMPANY
OFFICERS' CERTIFICATE
Dated as of October 27, 1998
--------------------
Setting Forth Terms of a Series of Debt Securities
5.70% Debentures Due October 15, 2008
--------------------
Pursuant to the Indenture
Dated as of June 20, 1997
<PAGE>
OFFICERS' CERTIFICATE
The undersigned, the Vice President-Treasurer and Corporate Secretary
and the Assistant Treasurer of Wisconsin Power and Light Company, a Wisconsin
corporation (the "Company"), hereby certify as provided below pursuant to
Section 2.01 of the Indenture, dated as of June 20, 1997 (the "Indenture"),
between the Company and Firstar Trust Company (subsequently succeeded by Firstar
Bank Milwaukee, N.A.) (the "Trustee"). This Officers' Certificate is delivered,
pursuant to authority granted to the undersigned by resolutions adopted on April
21, 1998 by the Board of Directors of the Company, for the purpose of creating
and setting forth the terms of a series of Securities to be issued pursuant to
the Indenture. Capitalized terms not otherwise defined herein are used as
defined in the Indenture.
1. The Board of Directors of the Company has authorized the creation by
the Company of the series of Securities described below pursuant to this
Officers' Certificate and in accordance with the Indenture.
2. The title of the Securities shall be "5.70% Debentures due October
15, 2008" (herein called the "Debentures").
3. The aggregate principal amount of Debentures which may be
authenticated and delivered under the Indenture is limited to U.S. $60,000,000,
except for Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures as provided in Sections
2.07, 2.08, 2.13 or 9.06 of the Indenture and except for Debentures which,
pursuant to Section 2.02 of the Indenture, are deemed never to have been
authenticated and delivered thereunder.
4. The principal of the Debentures shall be payable in U.S. dollars on
October 15, 2008.
5. The Debentures shall bear interest at the rate of 5.70% per annum;
such interest shall accrue from October 30, 1998 (or from the most recent
interest payment date to which interest on the Debentures has been paid or
provided for); the interest payment dates on which such interest shall be
payable shall be April 15 and October 15 in each year, commencing April 15,
1999; the record dates for the determination of Holders to whom interest is
payable shall be the April 1 or October 1 next preceding each interest payment
date. Interest on the Debentures shall be payable in U.S. dollars.
6. Pursuant to the Indenture, the Trustee has been appointed as the
Registrar for the Debentures. The Trustee is hereby further appointed as the
initial Paying Agent and Transfer Agent of the Debentures. The principal of and
interest on the Debentures shall be payable at the office of the Paying Agent,
which shall initially be located in Milwaukee, Wisconsin.
7. The Debentures shall not be redeemable prior to maturity, shall not
be subject to any sinking fund and shall not be repurchasable at the option of a
Holder. The Debentures shall be issuable as Registered Securities and shall not
be exchangeable for Bearer Securities.
-2-
<PAGE>
8. Section 4.07 of the Indenture shall apply to the Debentures.
9. Defeasance and covenant defeasance under Article 8 of the Indenture
shall be applicable to the Debentures.
10. The Debentures shall initially be issued in whole in the form of
one or more global Securities. The Depository Trust Company, a clearing agency
registered under the Securities Exchange Act of 1934, as amended ("DTC"), shall
initially serve as the depositary for such global Security or Securities. For so
long as DTC shall be the depositary, all Debentures shall be registered in its
name or in the name of a nominee thereof. While the Debentures are evidenced by
one or more global Securities, the depositary or its nominee, as the case may
be, shall be the sole Holder thereof for all purposes under the Indenture.
Neither the Company nor the Trustee shall have any responsibility or the
obligation to the depositary's participants or the beneficial owners for whom
they act with respect to their receipt from the depositary of payments on the
Debentures or notices given under the Indenture. The global Security or
Securities provided for hereunder shall bear such legend or legends as may be
required from time to time by the depositary.
11. Except as hereinafter described, Debentures in definitive form will
not be issued. Notwithstanding the foregoing, in the event the Company decides
to discontinue the use of global Securities, or if DTC is at any time unwilling
or unable to continue as depositary, and a successor depositary is not appointed
by the Company within 90 days, the Company will issue individual Debentures in
certificated form to owners of "book entry" ownership interests in exchange for
the Debentures held by DTC or its nominee, as the case may be. In such instance,
an owner of a "book-entry" ownership interest will be entitled to physical
delivery of certificates equal in principal amount to such "book-entry"
ownership interest and to have such certificates registered in its name.
Individual certificates so issued will be issued in denominations of $1,000 or
any multiple thereof.
12. Additional terms regarding the Debentures are as set forth in the
form of Debenture set forth below.
-3-
<PAGE>
13. The form of the Debentures shall be substantially as follows:
[Form of 5.70% Debenture due October 15, 2008]
No. R-___________ $_____________
WISCONSIN POWER AND LIGHT COMPANY
5.70% Debenture due October 15, 2008
CUSIP 976826 BB 2
WISCONSIN POWER AND LIGHT COMPANY
promises to pay to _____________________________________________________________
or registered assigns
the principal sum of _______________________________ Dollars on October 15, 2008
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Dated:
FIRSTAR BANK MILWAUKEE, N.A. WISCONSIN POWER AND LIGHT COMPANY
(As successor to Firstar Trust
Company)
Transfer Agent and Paying Agent
By: _______________________________
[Title of Authorized Officer]
Authenticated:
FIRSTAR BANK MILWAUKEE, N.A. (CORPORATE SEAL)
(As successor to Firstar Trust
Company)
Registrar _______________________________
[Assistant] Secretary
By: ____________________________
Authorized Signatory
-4-
<PAGE>
WISCONSIN POWER AND LIGHT COMPANY
5.70% Debenture due October 15, 2008
Interest. Wisconsin Power and Light Company (the "Company"), a
Wisconsin corporation, promises to pay interest on the principal amount of this
Security (as defined herein) at the rate per annum shown above. The Company will
pay interest semiannually on April 15 and October 15 of each year commencing
April 15, 1999. Interest on the Securities will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from October
30, 1998. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
Method of Payment. The Company will pay interest on the Securities to
the persons who are registered holders of Securities at the close of business on
the record date for the next interest payment date, except as otherwise provided
in the Indenture. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. The Company may pay principal and interest by check payable
in such money. It may mail an interest check to a holder's registered address.
Securities Agents. Initially, Firstar Bank Milwaukee, N.A. (as
successor to Firstar Trust Company) will act as Paying Agent, Transfer Agent and
Registrar. The Company may change any Paying Agent or Transfer Agent without
notice. The Company or any Affiliate may act in any such capacity. Subject to
certain conditions, the Company may change the Trustee.
Indenture. The Company issued the securities of this series
(individually a "Security" and collectively the "Securities") under an
Indenture, dated as of June 20, 1997 (the "Indenture"), between the Company and
Firstar Trust Company (subsequently succeeded by Firstar Bank Milwaukee, N.A.)
(the "Trustee"). The terms of the Securities include those stated in the
Indenture and in the Officers' Certificate establishing the Securities and those
made part of the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb). Securityholders are referred to the Indenture, the
above-referenced Officers' Certificate and such Act for a statement of such
terms.
Maturity; No Redemption Prior to Maturity. The principal on the
Securities shall be payable on October 15, 2008. The Securities are not
redeemable prior to maturity.
Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and whole multiples of $1,000.
The transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or the Indenture.
Persons Deemed Owners. The registered holder of a Security may be
treated as its owner for all purposes.
-5-
<PAGE>
Amendments and Waivers. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the holders of not less than a
majority in aggregate principal amount of the securities of all series affected
by the amendment. Subject to certain exceptions, a default on a series may be
waived with the consent of the holders of a majority in principal amount of the
series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity, omission,
defect or inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially adversely affect
the rights of any Securityholder.
Restrictive Covenants. The Securities are unsecured general obligations
of the Company limited to $60,000,000 principal amount. The Indenture does not
limit other unsecured debt. Section 4.07 of the Indenture, which limits certain
mortgages and other liens, will apply with respect to the Securities. The
limitations are subject to a number of important qualifications and exceptions.
Successors. When a successor assumes all the obligations of the Company
under the Securities and the Indenture, the Company will be released from those
obligations.
Defeasance Prior to Maturity. Subject to certain conditions, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to maturity. U.S. Government Obligations are securities backed by the
full faith and credit of the United States of America or certificates
representing an ownership interest in such Obligations.
Defaults and Remedies. An Event of Default includes: default for 60
days in payment of interest on the Securities; default in payment of principal
on the Securities; default by the Company for a specified period after notice to
it in the performance of any of its other agreements applicable to the
Securities; and certain events of bankruptcy or insolvency. If an Event of
Default occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount of the Securities may declare the principal of all the
Securities to be due and payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Securities. Subject to certain
limitations, holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing default (except a default
in payment of principal or interest) if it determines that withholding notice is
in their interests. The Company must furnish an annual compliance certificate to
the Trustee.
Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with those persons, as
if it were not Trustee.
-6-
<PAGE>
No Recourse Against Others. A director, officer, employee or
shareholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
Authentication. This Security shall not be valid until authenticated by
a manual signature of the Registrar.
Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), U/G/M/A (=Uniform Gifts to
Minors Act), and U/T/M/A (=Uniform Transfers to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Officers' Certificate, which
contains the text of this Security. Requests may be made to: Corporate
Secretary, Wisconsin Power and Light Company, 222 West Washington Avenue,
Madison, Wisconsin 53703.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[Form of Assignment Form]
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to ____________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
-7-
<PAGE>
(Insert assignee's soc. sec. or tax I.D. no.)
and irrevocably appoint __________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: ____________, ____ Your signature: _____________________________
-----------------------------
(Sign exactly as your name appears on the face of this Security)
Signature Guaranteed:
- ------------------------------------
* * *
IN WITNESS WHEREOF, we have set our hands and the corporate seal of the
Company as of the day and year first above written.
WISCONSIN POWER AND LIGHT COMPANY
By: ________________________________
Edward M. Gleason
Vice President-Treasurer and
Corporate Secretary
By: ________________________________
Robert A. Rusch
Assistant Treasurer
-8-
