SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported) September 29, 1999
PENTAIR, INC.
(Exact Name of Registrant as specified in Its Charter)
MINNESOTA 001-11625 41-0907434
(State of Incorporation (Commission File (I.R.S. Employer
or Organization) Number) Identification No.)
1500 County Road B2 West, St. Paul, Minnesota 55113-3105
(Address of Principal Executive Offices) (Zip Code)
612.636.7920
(Registrant's Telephone Number, Including Area Code)
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Item 5. Other Events.
On September 29, 1999, Pentair, Inc. (the
"Company") agreed to sell 5,500,000 shares of its
common stock (the "Shares") pursuant to an Underwriting
Agreement and applicable Pricing Agreement, each dated
September 29, 1999 among the Company and Goldman, Sachs
& Co., J.P. Morgan Securities Inc., Banc of America
Securities LLC and U.S. Bancorp Piper Jaffray Inc. In
addition, on September 30, 1999, the Company agreed to
sell $250,000,000 aggregate principal amount of its
7.85% Senior Notes due 2009 (the "Debt Securities")
pursuant to an Underwriting Agreement and related
Pricing Agreement, each dated September 30, 1999 among
the Company and Goldman Sachs & Co., J.P. Morgan
Securities Inc. and Banc One Capital Markets Inc. The
Debt Securities will be issued pursuant to an Indenture
dated as of June 1, 1999 between the Company and U.S.
Bank Trust National Association, as trustee (the
"Indenture") and an Officer's Certificate and Company
Order dated October 5, 1999, pursuant to Sections 201,
301 and 303 of the Indenture. The Shares and the Debt
Securities have been registered under the Securities
Act of 1933, as amended, by a Registration Statement on
Form S-3, File No. 333-80159, as amended. The purpose
of this report is to file certain exhibits in
connection with the offering of the Shares and Debt
Securities.
Item 7. Financial Statements and Exhibits
(c) Exhibits. See the Exhibit Index following the
signature page of this Report , which is incorporated
herein by reference.
1
<PAGE>
SIGNATURE
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 hereunder duly authorized.
PENTAIR, INC.
Date: October 4, 1999
By:/s/ Richard W. Ingman
Richard W. Ingman,
Executive Vice President and
Chief Financial Officer
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<PAGE>
PENTAIR, INC.
EXHIBIT INDEX TO
FORM 8-K CURRENT REPORT
Date of Report: September 29, 1999
Exhibit
Number Description
1.1 Underwriting Agreement - Common Stock,
including related pricing agreement
1.2 Underwriting Agreement - Debt
Securities, including related pricing
agreement
4.1 Form of Officer's Certificate and
Company Order
4.2 Specimen Note
5.1 Opinion of Henson & Efron, P.A.
regarding the legality of the common stock
registered pursuant to the company's
registration statement on Form S-3, File No.
333-80159.
5.2 Opinion of Henson & Efron, P.A.
regarding the legality of the senior notes
registered pursuant to the company's
registration statement on Form S-3, File No.
333-80159.
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EXHIBIT 1.1
Pentair, Inc.
Common Stock
Par Value $.16 2/3 per Share
Underwriting Agreement
September 29,1999
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Piper Jaffray Inc.
As Representatives of the Several
Underwriters named in Schedule I to
the Pricing Agreement attached hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
From time to time Pentair, Inc, a Minnesota
corporation (the "Company"), proposes to enter into one
or more Pricing Agreements (each a "Pricing Agreement")
in the form of Annex III hereto, with such additions
and deletions as the parties thereto may determine,
and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified
therein) certain shares of the Company's Common Stock,
par value $.16b per share (the "Shares") specified in
Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Firm Shares"). If
specified in such Pricing Agreement, the Company may
grant to the Underwriters the right to purchase at
their election an additional number of shares,
specified in such Pricing Agreement as provided in
Section 3 hereof (the "Optional Shares"). The Firm
Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Designated
Shares".
The terms and rights of any particular
issuance of Designated Shares shall be as specified in
the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be
made from time to time to the Underwriters of such
Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in
the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting
as sole representative of the Underwriters and to
Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement
shall not be construed as an obligation of the Company
to sell any of the Shares or as an obligation of any of
the Underwriters to purchase any of the Shares. The
obligation of the Company to issue and sell any of the
Shares and the obligation of any of the Underwriters to
purchase any of the Shares shall be evidenced by the
Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall
specify the aggregate number of the Firm Shares, the
maximum number of Optional Shares, if any, the initial
public offering price of such Firm and Optional Shares
or the manner of determining such price, the purchase
price to the Underwriters of such Designated Shares,
the names of the Underwriters of such Designated
Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to
be purchased by each Underwriter and the commission, if
any, payable to the Underwriters with respect thereto
and shall set forth the date, time and manner of
delivery of such Firm and Optional Shares, if any, and
payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the
registration statement and prospectus with respect
thereto) the terms of such Designated Shares. A
Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to
produce a written record of communications transmitted.
The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3
(File No. 333-80159) (the "Initial Registration
Statement") in respect of the Shares and certain
other securities has been filed with the
Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including
all documents incorporated by reference in the
prospectus included therein, to the
Representatives for each of the other Underwriters
have been declared effective by the Commission in
such form; other than a registration statement, if
any, increasing the size of the offering (a "Rule
462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon
filing, no other document with respect to the
Initial Registration Statement or document
incorporated by reference therein has heretofore
been filed, or transmitted for filing, with the
Commission (other than prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form
heretofore delivered to the Representatives); and
no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no
proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary
prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective
amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto
and the documents incorporated by reference in the
prospectus contained in the Initial Registration
Statement at the time such part of the Initial
Registration Statement became effective, but
excluding Form T-1, each as amended at the time
such part of the Initial Registration Statement
became effective, or such part of the Rule 462(b)
Registration Statement, if any, became or
hereafter becomes effective, are hereinafter
collectively called the "Registration Statement";
the prospectus relating to the Shares, in the form
in which it has most recently been filed, or
transmitted for filing, with the Commission on or
prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to the applicable form under the Act, as
of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial
Registration Statement shall be deemed to refer to
and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration
Statement that is incorporated by reference in the
Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable
Designated Shares in the form in which it is filed
with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference
in the Prospectus, when they became effective or
were filed with the Commission, as the case may
be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder, and none of such documents
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; and any further documents
so filed and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto, when such documents become effective or
are filed with the Commission, as the case may be,
will conform in all material respects to the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder 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; provided, however, that
this representation and warranty shall not apply
to any statements or omissions made in reliance
upon and in conformity with information furnished
in writing to the Company by an Underwriter of
Designated Shares through the Representatives
expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or
supplements to the Registration Statement or the
Prospectus will conform, in all material respects
to the requirements of the Act and the rules and
regulations of the Commission thereunder and do
not and will not, as of the applicable effective
date as to the Registration Statement and any
amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or
supplement thereto, 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; provided,
however, that this representation and warranty
shall not apply to any statements or omissions
made in reliance upon and in conformity with
information furnished in writing to the Company by
an Underwriter of Designated Shares through the
Representatives expressly for use in the
Prospectus as amended or supplemented relating to
such Shares or to any statement in or omission
from the Form T-1;
(d) Neither the Company nor any of its
subsidiaries has sustained since the date of the
latest audited financial statements included or
incorporated by reference in the Prospectus any
material loss or interference with its business
from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any
labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the
respective dates as of which information is given
in the Registration Statement and the Prospectus,
there has not been any change in the capital stock
(other than pursuant to the Company's employee and
director stock option plans) or increase in short-
term or long-term debt of the Company or any of
its subsidiaries in excess of 5% of total debt of
the Company and its subsidiaries, taken as a
whole, computed in accordance with generally
accepted accounting principles, or any material
adverse change, or any development involving a
prospective material adverse change, in or
affecting the general affairs, management,
financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, as amended or
supplemented;
(e) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus and has been duly
qualified as a foreign corporation for the
transaction of business and is in good standing
under the laws of each other jurisdiction in which
it owns or leases properties or conducts any
business so as to require such qualification or is
subject to no material liability or disability by
reason of the failure to be so qualified in any
such jurisdiction; and each material subsidiary of
the Company (as set forth on Annex V attached
hereto (each a "Material Subsidiary" and, together
the "Material Subsidiaries") has been duly
incorporated or organized, as the case may be, and
is validly existing as a corporation or
partnership, as the case may be, in good standing
under the laws of its jurisdiction of
incorporation or organization;
(f) The Company and its Material
Subsidiaries have good and indefeasible title
to all real property and good and marketable title
to all personal property owned by them, in each
case free and clear of all liens, encumbrances and
defects and any real property and buildings held
under lease by the Company and its subsidiaries
are held by them under valid, subsisting and
enforceable leases except for liens, encumbrances
and defects that, individually or in the
aggregate, will not have a material adverse effect
on the business, consolidated financial position,
stockholders equity or results of operation of the
Company and its subsidiaries taken as a whole,
subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles;
(g) The Company has an authorized
capitalization as set forth in the most recent
Prospectus, and all of the issued shares of
capital stock of the Company have been duly and
validly authorized and issued and are fully paid
and non-assessable and all of the issued shares of
capital stock of each Material Subsidiary of the
Company have been duly and validly authorized and
issued, are fully paid and non-assessable, are
owned directly or indirectly by the Company and
are owned free and clear of all liens,
encumbrances, equities or claims;
(h) The Shares have been duly and validly
authorized, and, when the Firm Shares are issued
and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated
Shares and, in the case of any Optional Shares,
pursuant to Overallotment Options (as defined in
Section 3 hereof) with respect to such Shares,
such Designated Shares will be duly and validly
issued and fully paid and non-assessable; the
Shares conform to the description thereof
contained in the Registration Statement and the
Designated Shares will conform to the description
thereof contained in the Prospectus as amended or
supplemented with respect to such Designated
Shares;
(i) None of the transactions contemplated by
this Agreement (including, without limitation, the
use of the proceeds from the sale of the Shares)
will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation,
Regulations G, T, U, and X of the Board of
Governors of the Federal Reserve System;
(j) The issue and sale of the Shares and the
compliance by the Company with all of the
provisions of this Agreement, any Pricing
Agreement and each Overallotment Option, if any,
and the consummation of the transactions
contemplated herein and therein will not conflict
with or result in a breach or violation of any of
the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of
its subsidiaries is subject, excluding conflicts,
breaches, violations and defaults that,
individually or in the aggregate, will not have a
material adverse effect on the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries taken as a whole, nor will such
action result in any violation of the provisions
of the Articles of Incorporation or By-laws of the
Company or any of its Material Subsidiaries or any
statute or any order, rule or regulation of any
court or governmental agency or body having
jurisdiction over the Company or any of its
subsidiaries or any of their properties; and, no
consent, approval, authorization, order,
registration or qualification of or with any such
court or governmental agency or body is required
for the issue and sale of the Shares or the
consummation by the Company of the transactions
contemplated by this Agreement or any Pricing
Agreement or any Overallotment Option, except such
as have been, or will have been prior to each Time
of Delivery (as defined in Section 4 hereof),
obtained under the Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the
Underwriters;
(k) Other than as set forth in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries
is the subject, which, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a material
adverse effect on the current or future
consolidated financial position, shareholders'
equity or results of operations of the Company and
its subsidiaries and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others;
(l) Neither the Company nor any of its
Material Subsidiaries is (i) in violation of its
Articles of Incorporation or By-laws or (ii) in
default in the performance or observance of any
material obligation, agreement, covenant or
condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or
by which it or any of its properties may be bound,
except, with respect to clause (ii) above, for
defaults that, individually or in the aggregate,
will not have a material adverse effect on the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a
whole;
(m) The statements set forth in the
Prospectus under the caption "Description of
Common Stock, Preferred Stock and Rights Plan" and
the description of the Company's common stock
incorporated by reference in the Prospectus,
insofar as they purport to constitute a summary of
the terms of the Shares, and the statements set
forth in the Prospectus under the caption "Plan of
Distribution," insofar as they purport to describe
the provisions of the laws and documents referred
to therein, are accurate and fair;
(n) The Company is not and, after giving
effect to the offering and sale of the Shares,
will not be an "investment company," or an entity
"controlled" by an "investment company," as such
terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(o) Neither the Company nor any of its
affiliates does business with the government of
Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075,
Florida Statutes;
(p) Deloitte & Touche LLP and
Pricewaterhouse Coopers LLP, who have certified
certain financial statements of the Company and
its subsidiaries, are independent public
accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(q) The pro forma balance sheets and pro
forma statements of operations and the related
notes thereto included in the Prospectus
(collectively, the "pro forma financial
statements") have been prepared in accordance with
the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission; the
assumptions used and described in the pro forma
financial statements provide a reasonable basis
for presenting the significant effects
attributable to the transactions described
therein; the pro forma adjustments contained in
the pro forma financial statements give
appropriate effect to such assumptions and include
all adjustments necessary to present fairly the
effects of such transactions; and the pro forma
columns contained in the pro forma financial
statements reflect the proper application of such
adjustments to the historical financial amounts
contained in the pro forma financial statements;
(r) Except as disclosed in the Prospectus,
the Company has not been advised and has no reason
to believe that either the Company or any of its
subsidiaries is not conducting its business in
compliance with all applicable statutes, rules,
regulations and orders administered or issued by
any governmental or regulatory authority in the
jurisdictions in which it is conducting business,
except where the failure to be in compliance would
not materially adversely affect the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries, taken as a whole; and
(s) The Company has reviewed its operations
and those of its Material Subsidiaries and has
requested from third parties with which the
Company or any of its Material Subsidiaries has a
material relationship a certification of
compliance, in order to evaluate the extent to
which the business or operations of the Company
and its Material Subsidiaries will be affected by
the Year 2000 Problem. As a result of such review,
the Company has no reason to believe and does not
believe that the Year 2000 Problem will have a
material adverse effect on the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries, taken as a whole. The "Year
2000 Problem" as used herein means any significant
risk that computer hardware or software used in
the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission
or other utilization of data or in the operation
of mechanical or electrical systems of any kind
will not, in the case of dates or time periods
occurring after December 31, 1999, function at
least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Shares and authorization
by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement
applicable to any Designated Shares that the Company
thereby grants to the Underwriters the right (an
"Overallotment Option") to purchase at their election
up to the number of Optional Shares set forth in such
Pricing Agreement, on the terms set forth in the
paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any
such election to purchase Optional Shares may be
exercised by written notice from the Representatives to
the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number
of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as
determined by the Representatives but in no event
earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless the Representatives and
the Company otherwise agree in writing, earlier than or
later than the respective number of business days after
the date of such notice set forth in such Pricing
Agreement.
The number of Optional Shares to be added to the
number of Firm Shares to be purchased by each
Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall
be, in each case, the number of Optional Shares which
the Company has been advised by the Representatives
have been attributed to such Underwriter; provided
that, if the Company has not been so advised, the
number of Optional Shares to be so added shall be, in
each case, that proportion of Optional Shares which the
number of Firm Shares to be purchased by such
Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Shares (rounded as the
Representatives may determine to the nearest 100
shares). The total number of Designated Shares to be
purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm
Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares
which the Underwriters elect to purchase.
4. Certificates for the Firm Shares and the
Optional Shares to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in
the form specified in such Pricing Agreement and in
such authorized denominations and registered in such
names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall
be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of
the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the
Company to the Representatives at least forty-eight
hours in advance as specified in such Pricing
Agreement, (i) with respect to the Firm Shares, all in
the manner and at the place and time and date specified
in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company
may agree upon in writing, such time and date being
herein called the "First Time of Delivery" and (ii)
with respect to the Optional Shares, if any, in the
manner and at the time and date specified by the
Representatives in the written notice given by the
Representatives of the Underwriters' election to
purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may
agree upon in writing, such time and date, if not the
First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is
herein called a "Time of Delivery".
5. The Company agrees with each of the
Underwriters of any Designated Shares:
(a) To prepare the Prospectus as amended and
supplemented in relation to the applicable
Designated Shares in a form approved by the
Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the
second business day following the execution and
delivery of the Pricing Agreement relating to the
applicable Designated Shares or, if applicable,
such earlier time as may be required by Rule
424(b); to make no further amendment or any
supplement to the Registration Statement or
Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such
Shares and prior to any Time of Delivery for such
Shares which shall be disapproved by the
Representatives for such Shares promptly after
reasonable notice thereof; to advise the
Representatives promptly of any such amendment or
supplement after any Time of Delivery for such
Shares and furnish the Representatives with copies
thereof; to file promptly all reports and any
definitive proxy or information statements
required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection
with the offering or sale of such Shares, and
during such same period to advise the
Representatives, promptly after it receives notice
thereof, of the time when any amendment to the
Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of
any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus
or Prospectus relating to the Shares, of the
suspension of the qualification of such Shares for
offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for
any such purpose, or of any request by the
Commission for the amending or supplementing of
the Registration Statement or Prospectus or for
additional information; and, in the event of the
issuance of any such stop order or of any such
order preventing or suspending the use of any
Registration Statement or the Prospectus relating
to the Shares or suspending any such
qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such
action as the Representatives may reasonably
request to qualify such Designated Shares for
offering and sale under the securities laws of
such jurisdictions as the Representatives may
request and to comply with such laws so as to
permit the continuance of sales and dealings
therein in such jurisdictions for as long as may
be necessary to complete the distribution of such
Designated Shares, provided that in connection
therewith the Company shall not be required to
qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 A.M., New York City time,
on the New York Business Day next succeeding the
date of any Pricing Agreement and from time to
time to furnish the Underwriters with copies of
the Prospectus as amended or supplemented, in New
York City in such quantities as the
Representatives may reasonably request, and, if
the delivery of a prospectus is required at any
time in connection with the offering or sale of
the Shares and if at such time any event shall
have occurred as a result of which the Prospectus
as then amended or supplemented would include an
untrue statement of a material fact or omit to
state any material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during
such same period to amend or supplement the
Prospectus or to file under the Exchange Act any
document incorporated by reference in the
Prospectus in order to comply with the Act or the
Exchange Act, to notify the Representatives and
upon their request to file such document and to
prepare and furnish without charge to each
Underwriter and to any dealer in securities as
many copies as the Representatives may from time
to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect
such compliance;
(d) To make generally available to its
security holders as soon as practicable, but in
any event not later than eighteen months after the
effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries
(which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of
the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the
date of the Pricing Agreement for such Designated
Shares and continuing to and including the date 90
days after the date of the Pricing Agreement, not
to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any
securities of the Company that are substantially
similar to the Designated Shares, including but
not limited to any securities that are convertible
into or exchangeable for, or that represent the
right to receive, Shares or any such substantially
similar securities (other than pursuant to
employee stock option plans existing on, or upon
the conversion or exchange of convertible or
exchangeable securities outstanding as of, the
date of the Pricing Agreement for such Designated
Shares) without the prior written consent of the
Representatives;
(f) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of
filing either pay the Commission the filing fee
for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act;
(g) During a period of three years from the
date hereof, to furnish (unless otherwise publicly
available on Edgar) to the Representatives copies
of all reports or other communications (financial
or other) furnished to shareholders of the
Company, and to deliver to the Representatives (i)
as soon as practicable after they are available,
copies of any reports and financial statements
furnished to or filed with the Commission or any
securities exchange (other than filings made on a
confidential basis) on which the Shares or any
class of securities of the Company is listed; and
(ii) such additional information concerning the
business and financial condition of the Company as
the Representatives may from time to time
reasonably request (such financial statements to
be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are
consolidated in reports furnished to its
shareholders generally or to the Commission); and
(h) To use the net proceeds received by it
from the sale of the Shares pursuant to this
Agreement and any Pricing Agreement in the manner
specified in the Prospectus under the caption "Use
of Proceeds."
6. The Company covenants and agrees with the
several Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants
in connection with the registration of the Shares under
the Act and all other expenses in connection with the
preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Blue Sky
Memorandum, closing documents (including compilations
thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification
of the Shares for offering and sale under state
securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and
in connection with the Blue Sky survey(s); (iv) the
cost of preparing certificates for the Shares; (v) the
cost and charges of any transfer agent or registrar or
dividend disbursing agent; and (vi) all other costs and
expenses incident to the performance of its obligations
hereunder and under any Overallotment Options which are
not otherwise specifically provided for in this
Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer
taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters of any
Designated Shares under the Pricing Agreement relating
to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition
that all representations and warranties and other
statements of the Company in or incorporated by
reference in the Pricing Agreement relating to such
Designated Shares are, at and as of each Time of
Delivery for such Designated Shares, true and correct,
the condition that the Company shall have performed all
of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or
supplemented in relation to such Designated Shares
shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and
regulations under the Act and in accordance with
Section 5(a) hereof; if the Company has elected to
rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any
part thereof shall have been issued and no
proceeding for that purpose shall have been
initiated or threatened by the Commission; and all
requests for additional information on the part of
the Commission shall have been complied with to
the Representatives' reasonable satisfaction;
(b) Dorsey & Whitney LLP, counsel for the
Underwriters, shall have furnished to the
Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Shares,
with respect to the Designated Shares, this
Agreement, the Pricing Agreement, the Registration
Statement and the Prospectus as well as such other
related matters as the Representatives may
reasonably request, and such counsel shall have
received such papers and information as they may
reasonably request to enable them to pass upon
such matters;
(c) Louis. L. Ainsworth, Senior Vice
President and General Counsel of the Company,
shall have furnished to the Representatives his
written opinion or opinions, dated the Time of
Delivery for such Designated Securities, as to the
matters set forth in Annex I hereto and in form
and substance satisfactory to the Representatives.
(d) Henson & Efron, P.A., counsel for the
Company, shall have furnished to the
Representatives their written opinions, dated the
Time of Delivery for such Designated Shares, as to
the matters set forth in Annex II hereto and in
form and substance satisfactory to the
Representatives.
(e) On the date of the Pricing Agreement for
such Designated Shares and at each Time of
Delivery for such Designated Securities, the
independent accountants of the Company who have
certified the financial statements of the Company
and its subsidiaries included or incorporated by
reference in the Registration Statement shall have
furnished to Goldman, Sachs & Co., on behalf of
the underwriters, a letter, dated the date of this
Agreement, and a letter dated such Time of
Delivery, respectively, to the effect set forth in
Annex IV, and with respect to such letter dated
such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in
form and substance satisfactory to the
Representatives;
(f) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date
of the latest audited financial statements
included or incorporated by reference in the
Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated
Shares any loss or interference with its business
from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any
labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the
Designated Shares, and (ii) since the respective
dates as of which information is given in the
Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated
Shares there shall not have been any change in the
capital stock (other than pursuant to the
Company's employee and director stock option
plans) or increase in short-term or long-term debt
of the Company or any of its subsidiaries in
excess of 5% of total debt of the Company and its
subsidiaries, taken as a whole, computed in
accordance with generally accepted accounting
principles, or any change, or any development
involving a prospective change, in or affecting
the general affairs, management, financial
position, shareholders' equity or results of
operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the
Designated Shares, the effect of which, in any
such case described in clause (i) or (ii), is in
the judgment of the Representatives so material
and adverse as to make it impracticable or
inadvisable to proceed with the public offering or
the delivery of the Designated Shares on the terms
and in the manner contemplated in the Prospectus
as amended relating to the Designated Shares;
(g) On or after the date of the Pricing
Agreement relating to the Designated Shares (i) no
downgrading shall have occurred in the rating
accorded the Company's debt securities or
preferred stock by any "nationally recognized
statistical rating organization", as that term is
defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it
has under surveillance or review, with possible
negative implications, its rating of any of the
Company's debt securities or preferred stock;
(h) On or after the date of the Pricing
Agreement relating to the Designated Shares there
shall not have occurred any of the following: (i)
a suspension or material limitation in trading in
securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either
Federal or New York State authorities; (iv) the
outbreak or escalation of hostilities involving
the United States or the declaration by the United
States of a national emergency or war, if the
effect of any such event specified in this clause
(iv) in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with
the public offering or the delivery of the Firm
Shares or Optional Shares or both on the terms and
in the manner contemplated in the Prospectus as
first amended or supplemented relating to the
Designated Shares; or (v) the occurrence of any
material adverse change in the existing financial,
political or economic condition in the United
States or elsewhere which, in the judgment of the
Representatives would materially and adversely
affect the financial markets for the Shares;
(i) The Shares at each Time of Delivery
shall have been duly listed on the New York Stock
Exchange;
(j) The Company shall have complied with the
provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the business day
next succeeding the date of the Pricing Agreement
relating to such Designated Shares; and
(k) The Company shall have furnished or
caused to be furnished to the Representatives at
the Time of Delivery for the Designated Shares
certificates of officers of the Company
satisfactory to the Representatives as to the
accuracy of the representations and warranties of
the Company herein at and as of such Time of
Delivery, as to the performance by the Company of
all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold
harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several,
to which such Underwriter may become subject,
under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus
relating to the Shares, or any amendment or
supplement thereto, or arise out of or are based
upon the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, and will reimburse each
Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in
connection with investigating or defending any
such action or claim as such expenses are
incurred; provided, however, that the Company
shall not be liable in any such case to the extent
that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written
information furnished to the Company by any
Underwriter of Designated Shares through the
Representatives expressly for use in the
Prospectus as amended or supplemented relating to
such Shares.
(b) Each Underwriter will indemnify and hold
harmless the Company against any losses, claims,
damages or liabilities to which the Company may
become subject, under the Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or
alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, in each case to the extent, but only
to the extent, that such untrue statement or
alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Shares, or any such amendment or supplement
in reliance upon and in conformity with written
information furnished to the Company by such
Underwriter through the Representatives expressly
for use therein; and will reimburse the Company
for any legal or other expenses reasonably
incurred by the Company in connection with
investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice
of the commencement of any action, such
indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying
party under such subsection, notify the
indemnifying party in writing of the commencement
thereof; but the omission so to notify the
indemnifying party shall not relieve it from any
liability which it may have to any indemnified
party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the
indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to
participate therein and, to the extent that it
shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party
of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such
indemnified party under such subsection for any
legal expenses of other counsel or any other
expenses, in each case subsequently incurred by
such indemnified party, in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall,
without the written consent of the indemnified
party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect
to, any pending or threatened action or claim in
respect of which indemnification or contribution
may be sought hereunder (whether or not the
indemnified party is an actual or potential party
to such action or claim) unless such settlement,
compromise or judgment (i) includes an
unconditional release of the indemnified party
from all liability arising out of such action or
claim and (ii) does not include any statement as
to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified
party. No indemnifying party shall be liable
under Sections (a) or (b) above for any settlement
of any claim or action effected without its
consent, which consent will not be unreasonably
withheld.
(d) If the indemnification provided for in
this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a
result of such losses, claims, damages or
liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the
relative benefits received by the Company on the
one hand and the Underwriters of the Designated
Shares on the other from the offering of the
Designated Shares to which such loss, claim,
damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by
the immediately preceding sentence is not
permitted by applicable law or if the indemnified
party failed to give the notice required under
subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by
such indemnified party in such proportion as is
appropriate to reflect not only such relative
benefits but also the relative fault of the
Company on the one hand and the Underwriters of
the Designated Shares on the other in connection
with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other
relevant equitable considerations. The relative
benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed
to be in the same proportion as the total net
proceeds from such offering (before deducting
expenses) received by the Company bear to the
total underwriting discounts and commissions
received by such Underwriters. The relative fault
shall be determined by reference to, among other
things, whether the untrue or alleged untrue
statement of a material fact or the omission or
alleged omission to state a material fact relates
to information supplied by the Company on the one
hand or such Underwriters on the other 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 contributions pursuant to this
subsection (d) 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 subsection (d). The amount paid or
payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this
subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by
such indemnified party in connection with
investigating or defending any such action or
claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount
by which the total price at which the applicable
Designated Shares underwritten by it and
distributed to the public were offered to the
public exceeds the amount of any damages which
such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. The obligations of the
Underwriters of Designated Shares in this
subsection (d) to contribute are several in
proportion to their respective underwriting
obligations with respect to such Shares and not
joint.
(e) The obligations of the Company under
this Section 8 shall be in addition to any
liability which the Company may otherwise have and
shall extend, upon the same terms and conditions,
to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section
8 shall be in addition to any liability which the
respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions,
to each officer and director of the Company and to
each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Firm Shares or Optional
Shares which it has agreed to purchase under the
Pricing Agreement relating to such Shares, the
Representatives may in their discretion arrange
for themselves or another party or other parties
to purchase such Shares on the terms contained
herein. If within thirty-six hours after such
default by any Underwriter the Representatives do
not arrange for the purchase of such Firm Shares
or Optional Shares, as the case may be, then the
Company shall be entitled to a further period of
thirty-six hours within which to procure another
party or other parties satisfactory to the
Representatives to purchase such Shares on such
terms. In the event that, within the respective
prescribed period, the Representatives notify the
Company that they have so arranged for the
purchase of such Shares, or the Company notifies
the Representatives that it has so arranged for
the purchase of such Shares, the Representatives
or the Company shall have the right to postpone a
Time of Delivery for such Shares for a period of
not more than seven days, in order to effect
whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents
or arrangements, and the Company agrees to file
promptly any amendments or supplements to the
Registration Statement or the Prospectus which in
the opinion of the Representatives may thereby be
made necessary. The term "underwriter" as used in
this Agreement shall include any person
substituted under this Section with like effect as
if such person had originally been a party to the
Pricing Agreement with respect to such Designated
Shares.
(b) If, after giving effect to any
arrangements for the purchase of the Firm Shares
or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in
subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of the Firm
Shares or Optional Shares, as the case may be, to
be purchased at the respective Time of Delivery,
then the Company shall have the right to require
each non-defaulting Underwriter to purchase the
number of Firm Shares or Optional Shares, as the
case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to
such Designated Shares and, in addition, to
require each non-defaulting Underwriter to
purchase its pro rata share (based on the number
of Firm Shares or Optional Shares, as the case may
be, which such Underwriter agreed to purchase
under such Pricing Agreement) of the Firm Shares
or Optional Shares, as the case may be, of such
defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any
arrangements for the purchase of the Firm Shares
or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in
subsection (a) above, the aggregate number of Firm
Shares or Optional Shares, as the case may be,
which remains unpurchased exceeds one-eleventh of
the aggregate number of the Firm Shares or
Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, as
referred to in subsection (b) above, or if the
Company shall not exercise the right described in
subsection (b) above to require non-defaulting
Underwriters to purchase Firm Shares or Optional
Shares, as the case may be, of a defaulting
Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional
Shares, as the case may be, shall thereupon
terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the
Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any
investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for
the Shares.
11. If any Pricing Agreement or Overallotment
Option shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Firm
Shares or Optional Shares with respect to which such
Pricing Agreement shall have been terminated except as
provided in Sections 6 and 8 hereof; but, if for any
other reason, Designated Shares are not delivered by or
on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase,
sale and delivery of such Designated Shares, but the
Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the
Representatives of the Underwriters of Designated
Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the
Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement;
and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of
the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address
will be supplied to the Company by the Representatives
upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls
the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Shares
from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, the term "business day"
shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement
shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement and each Pricing Agreement may
be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such
respective counterparts shall together constitute one
and the same instrument.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof.
Very truly yours,
Pentair, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Piper Jaffray Inc.
By:
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
ANNEX I
Louis L. Ainsworth, Esq., General Counsel of
the Company, shall have furnished to the
Representatives his opinion, dated the Time of Delivery
for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued
shares of capital stock of the Company (including
the Designated Securities) have been duly and
validly authorized and issued and are fully paid
and non-assessable;
(iii) To the best of such counsel's
knowledge and other than as set forth in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries
is the subject which will, in such counsel's
reasonable belief, individually or in the
aggregate, have a material adverse effect on the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole;
and, to the best of such counsel's knowledge, no
such proceedings are threatened by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities have
been duly authorized, executed and delivered by
the Company;
(v) The issue and sale of the Designated
Securities and the compliance by the Company with
all of the provisions of the Designated
Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated
Securities and the consummation of the
transactions herein and therein contemplated will
not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to
which the Company or any of its Material
Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company
or any of its Material Subsidiaries is subject;
(ii) result in any violation of the provisions of
the Articles of Incorporation or By-laws of the
Company or any of its Material Subsidiaries; or
(iii) result in a violation of any statute or any
order, rule or regulation known to such counsel
and applicable to the Company or any of its
Material Subsidiaries or any of their respective
properties of any court or governmental agency or
body having jurisdiction over the Company or any
of its Material Subsidiaries or any of their
respective properties (except that such counsel
need express no opinion with respect to state
securities laws or Blue Sky laws with respect to
this paragraph) (and that such opinion shall not
extend to compliance with the anti-fraud
provisions of federal or state securities laws);
except in the case of clauses (i) and (iii) of
this paragraph, for such conflicts, breaches,
violations and defaults as are not reasonably
likely, individually or in the aggregate, to have
a material adverse effect on the business,
consolidated financial position, stockholders'
equity, results of operations, business or
prospects of the Company and its subsidiaries,
taken as a whole;
(vi) The documents incorporated by reference
in the Prospectus as amended or supplemented
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion), when they became effective or
were filed with the Commission, as the case may
be, complied as to form in all material respects
with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has
no reason to believe that any of such documents,
when they became effective or were so filed, as
the case may be, contained, in the case of a
registration statement which became effective
under the Act, 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, in the case
of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading;
(vii) The statements set forth in the
Prospectus under the caption "Description of
Common Stock, Preferred Stock and Rights Plan,"
insofar as they purport to constitute a summary of
the terms of the Designated Securities, and under
the captions "Plan of Distribution" and
"Underwriting," insofar as they purport to
describe the provisions of the laws and documents
referred to therein, are accurate, complete and
fair;
(viii) Neither the Company nor any of its
subsidiaries is in violation of its By-laws or
Articles of Incorporation or in default in the
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to
which it is a party or by which it or any of its
properties may be bound; and
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the rules and
regulations thereunder; although they do not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement or the
Prospectus, except for those referred to in the
opinion in subsection (vii) hereof, such counsel
has no reason to believe that, as of its effective
date, the Registration Statement or any further
amendment thereto made by the Company prior to the
Time of Delivery (other than the financial
statements, including the notes thereto, and
related schedules therein, as to which such
counsel need express no opinion) 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, as of its date,
the Prospectus or any further amendment or
supplement thereto made by the Company prior to
the Time of Delivery (other than the financial
statements, including the notes thereto, and
related schedules therein, as to which such
counsel need express no opinion) contained an
untrue statement of a material fact or omitted to
state a material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the
Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; and they do not know of any amendment
to the Registration Statement required to be filed
or any contracts or other documents of a character
required to be filed as an exhibit to the
Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are
not filed or incorporated by reference or
described as required.
<PAGE>
ANNEX II
Henson & Efron, P.A., counsel for the
Company, shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued
shares of capital stock of the Company (including
the Designated Securities) have been duly and
validly authorized and issued and are fully paid
and non-assessable;
(iii) This Agreement and
the Pricing Agreement with respect to the
Designated Securities have been duly authorized,
executed and delivered by the Company;
(iv) No consent, approval, authorization,
order, registration or qualification of or with
any court or governmental agency or body is
required to be made by the Company for the issue
and sale of the Designated Securities or the
consummation by the Company of the transactions
contemplated by this Agreement, such Pricing
Agreement or the Indenture, except such as have
been obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, orders, registrations or
qualifications as may be required under state
securities or Blue Sky laws (as to the
applicability of which no opinion need be
expressed) in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(v) The statements set forth in the
Prospectus under the caption "Description of
Common Stock, Preferred Stock and Rights Plan" and
the description of the Company's Common Stock
incorporated by reference in the Prospectus,
insofar as they purport to constitute a summary of
the terms of the Designated Securities, and under
the captions "Plan of Distribution" and
"Underwriting," insofar as they purport to
summarize the provisions of the laws and documents
referred to therein, are accurate summaries and
fairly present the information called for with
respect to such matters;
(vi) The Company is not an "investment
company," or an entity "controlled" by an
"investment company," as such term is defined in
the Investment Company Act;
(vii) The issue and sale
of the Designated Securities and the compliance by
the Company with all of the provisions of the
Designated Securities, the Indenture, this
Agreement and the Pricing Agreement with respect
to the Designated Securities and the consummation
of the transactions herein and therein
contemplated will not (i) conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such
counsel to which the Company or any of its
Material Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries is
bound or to which any of the property or assets of
the Company or any of its Material Subsidiaries is
subject; (ii) result in any violation of the
provisions of the Articles of Incorporation or By-
laws of the Company or any of its Material
Subsidiaries incorporated within the United
States; or (iii) result in a violation of any
statute or any order, rule or regulation known to
such counsel and applicable to the Company or any
of its Material Subsidiaries or any of their
respective properties of any court or governmental
agency or body having jurisdiction over the
Company or any of its Material Subsidiaries or any
of their respective properties (except that such
counsel need express no opinion with respect to
state securities laws or Blue Sky laws with
respect to this paragraph) (and that such opinion
shall not extend to compliance with the anti-fraud
provisions of federal or state securities laws);
except in the case of clauses (i) and (iii) of
this paragraph, for such conflicts, breaches,
violations and defaults as are not reasonably
likely, individually or in the aggregate, to have
a material adverse effect on the business,
consolidated financial position, stockholders'
equity, results of operations, business or
prospects of the Company and its subsidiaries,
taken as a whole. In rendering the opinion set
forth in clause (i) of this paragraph, we have,
with your approval, relied without investigation,
on a certificate of the Treasurer of the Company,
which includes calculations of the Company, as to
the Company's compliance with the financial ratios
and tests, which certificate is attached hereto;
(viii) The documents incorporated by
reference in the Prospectus as amended or
supplemented (other than the financial statements
and related schedules therein, as to which such
counsel need express no opinion), when they became
effective or were filed with the Commission, as
the case may be, complied as to form in all
material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and
nothing has come to such counsel's attention that
causes it to believe that any of such documents,
when they became effective or were so filed, as
the case may be, contained, in the case of a
registration statement which became effective
under the Act, 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, in the case
of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the rules and
regulations thereunder; although they do not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement or the
Prospectus and nothing has come to such counsel's
attention that causes it to believe that as of its
effective date, the Registration Statement or any
further amendment thereto made by the Company
prior to the Time of Delivery (other than the
financial statements, including the notes thereto,
and related schedules therein, as to which such
counsel need express no opinion) 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, as of its date,
the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements, including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omitted to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the
Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; and they do not know of any amendment
to the Registration Statement required to be filed
or any contracts or other documents of a character
required to be filed as an exhibit to the
Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are
not filed or incorporated by reference or
described as required.
<PAGE>
ANNEX III
Pricing Agreement
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Piper Jaffray Inc.
As Representatives of the Several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
September 29, 1999
Ladies and Gentlemen:
Pentair, Inc., a Minnesota corporation (the
"Company"), proposes, subject to the terms and
conditions stated herein and in the Underwriting
Agreement, dated September 29, 1999 (the "Underwriting
Agreement"), between the Company on the one hand and
Goldman, Sachs & Co., J.P. Morgan Securities Inc., Banc
of America Securities LLC and U.S. Bancorp Piper
Jaffray Inc. on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the
"Underwriters") the Shares specified in Schedule II
hereto (the "Designated Shares" consisting of Firm
Shares and any Optional Shares the Underwriters may
elect to purchase). Each of the provisions of the
Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each
of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each
representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement
shall be deemed to be a representation or warranty as
of the date of the Underwriting Agreement in relation
to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as
amended or supplemented relating to the Designated
Shares which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein
defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Shares pursuant to
Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such
Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement,
or a supplement to the Prospectus, as the case may be,
relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth
herein and in the Underwriting Agreement incorporated
herein by reference, (a) the Company agrees to issue
and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at
the purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I
hereto and, (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase
Optional Shares, as provided below, the Company agrees
to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly,
to purchase from the Company at the purchase price to
the Underwriters set forth in Schedule II hereto that
portion of the number of Optional Shares as to which
such election shall have been exercised.
The Company hereby grants to each of the
Underwriters the right to purchase at their election up
to the number of Optional Shares set forth opposite the
name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole
purpose of covering Overallotments in the sale of the
Firm Shares. Any such election to purchase Optional
Shares may be exercised by written notice from the
Representatives to the Company given within a period of
30 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of
Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined
by the Representatives, but in no event earlier than
the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business
days after the date of such notice.
If the foregoing is in accordance with your
understanding, please sign and return to us six
counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is
understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall
be submitted to the Company for examination, upon
request, but without warranty on the part of the
Representatives as to the authority of the signers
thereof.
Very truly yours,
Pentair, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
U.S. Bancorp Piper Jaffray Inc.
By:
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
Underwriter Number of Maximum
Firm Number of
Shares to Optional
be Shares
Purchased Which May
be
Purchased
Goldman, Sachs & Co. 1,753,125 262,969
J.P. Morgan Securities Inc. 1,753,125 262,969
Banc of America Securities LLC 584,375 87,656
U.S. Bancorp Piper Jaffray Inc. 584,375 87,656
William Blair & Company, L.L.C. 225,000 33,750
Credit Suisse First Boston Corporation 350,000 52,500
First Union Capital Markets Corp. 125,000 18,750
Janney Montgomery LLC 125,000 18.750
Total 5,500,000 825,000
<PAGE>
SCHEDULE II
Title of Designated Shares:
Common Stock, par value $.16 2/3 per share
Number of Designated Shares:
Number of Firm Shares: 5,500,000
Maximum Number of Optional Shares: 825,000
Initial Offering Price to Public:
$41.00 per Share
Purchase Price by Underwriters:
$39.36 per Share
Commission Payable to Underwriters:
$1.64 per Share in Federal (same-day) funds
Form of Designated Shares:
Book-entry only form represented by one or more
securities deposited with The Depository Trust
Company or its designated custodian.
Specified Funds for Payment of Purchase Price:
Federal (same-day) funds
Describe any blackout provisions with respect to the
Designated Shares
The Company has agreed not to dispose of or hedge
any Common Stock of the Company or securities
exchangeable into Common Stock of the Company during
the period beginning September 29, 1999 through
December 27, 1999, without the prior written consent of
the Representative.
Time of Delivery:
9:30 a.m. (New York City time), October 5, 1999
Closing Location:
Henson & Effron, P.A., Minneapolis, Minnesota
Names and Addresses of Representatives:
Goldman Sachs & Co. J.P. Morgan Securities Inc.
85 Broad Street 60 Wall Street
New York, NY 10004 New York, NY
10260-0060
Banc of America Securities LLC U.S. Bancorp Piper Jaffray Inc.
100 North Tyron Street 222 South Ninth Street
14th Floor Minneapolis, Minnesota 55402
Charlotte, NC 28255
Other Terms:
None
<PAGE>
ANNEX IV
Pursuant to Section 7(d) of the Underwriting
Agreement, the accountants shall furnish letters to the
Underwriters to the effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial
statements and any supplementary financial
information and schedules (and, if applicable,
financial forecasts and/or pro forma financial
information) examined by them and included or
incorporated by reference in the Registration
Statement or the Prospectus comply as to form in
all material respects with the applicable
accounting requirements of the Act or the Exchange
Act, as applicable, and the related published
rules and regulations thereunder; and, if
applicable, they have made a review in accordance
with standards established by the American
Institute of Certified Public Accountants of the
consolidated interim financial statements,
selected financial data, pro forma financial
information, financial forecasts and/or condensed
financial statements derived from audited
financial statements of the Company for the
periods specified in such letter, as indicated in
their reports thereon, copies of which have been
furnished to the representatives of the
Underwriters (the "representatives") such term to
include an Underwriter or Underwriters who act
without any firm being designated as its or their
representative;
(iii) They have made a review in
accordance with standards established by the
American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements
of income, consolidated balance sheets and
consolidated statements of cash flows included in
the Prospectus and/or included in the Company's
quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in
their reports thereon copies of which are attached
hereto; and on the basis of specified procedures
including inquiries of officials of the Company
who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the
applicable accounting requirements of the Act and
the Exchange Act and the related published rules
and regulations, nothing came to their attention
that caused them to believe that the unaudited
condensed consolidated financial statements do not
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial
information with respect to the consolidated
results of operations and financial position of
the Company for the five most recent fiscal years
included in the Prospectus and included or
incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in
the audited consolidated financial statements for
such five fiscal years which were included or
incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in
the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such
letter nothing came to their attention as a result
of the foregoing procedures that caused them to
believe that this information does not conform in
all material respects with the disclosure
requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with
generally accepted auditing standards, consisting
of a reading of the unaudited financial statements
and other information referred to below, a reading
of the latest available interim financial
statements of the Company and its subsidiaries,
inspection of the minute books of the Company and
its subsidiaries since the date of the latest
audited financial statements included or
incorporated by reference in the Prospectus,
inquiries of officials of the Company and its
subsidiaries responsible for financial and
accounting matters and such other inquiries and
procedures as may be specified in such letter,
nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed
consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included in the
Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all
material respects with the applicable
accounting requirements of the Exchange Act
and the related published rules and
regulations, or (ii) any material
modifications should be made to the unaudited
condensed consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included in the
Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus, for them to
be in conformity with generally accepted
accounting principles;
(B) any other unaudited income
statement data and balance sheet items
included in the Prospectus do not agree with
the corresponding items in the unaudited
consolidated financial statements from which
such data and items were derived, and any
such unaudited data and items were not
determined on a basis substantially
consistent with the basis for the
corresponding amounts in the audited
consolidated financial statements included or
incorporated by reference in the Company's
Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements
which were not included in the Prospectus but
from which were derived the unaudited
condensed financial statements referred to in
clause (A) and any unaudited income statement
data and balance sheet items included in the
Prospectus and referred to in clause (B) were
not determined on a basis substantially
consistent with the basis for the audited
financial statements included or incorporated
by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma
consolidated condensed financial statements
included or incorporated by reference in the
Prospectus do not comply as to form in all
material respects with the applicable
accounting requirements of the Act and the
published rules and regulations thereunder or
the pro forma adjustments have not been
properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more
than five days prior to the date of such
letter, there have been any changes in the
consolidated capital stock (other than
issuances of capital stock upon exercise of
options and stock appreciation rights, upon
earn-outs of performance shares and upon
conversions of convertible securities, in
each case which were outstanding on the date
of the latest balance sheet included or
incorporated by reference in the Prospectus)
or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or
any decreases in consolidated net current
assets or shareholders' equity or other items
specified by the Representatives, or any
increases in any items specified by the
Representatives, in each case as compared
with amounts shown in the latest balance
sheet included or incorporated by reference
in the Prospectus, except in each case for
changes, increases or decreases which the
Prospectus discloses have occurred or may
occur or which are described in such letter;
and
(F) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus
to the specified date referred to in clause
(E) there were any decreases in consolidated
net revenues or operating profit or the total
or per share amounts of consolidated net
income or other items specified by the
Representatives, or any increases in any
items specified by the Representatives, in
each case as compared with the comparable
period of the preceding year and with any
other period of corresponding length
specified by the Representatives, except in
each case for increases or decreases which
the Prospectus discloses have occurred or may
occur or which are described in such letter;
and
(vii) In addition to the examination
referred to in their report(s) included or
incorporated by reference in the Prospectus and
the limited procedures, inspection of minute
books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not
constituting an examination in accordance with
generally accepted auditing standards, with
respect to certain amounts, percentages and
financial information specified by the
Representatives which are derived from the general
accounting records of the Company and its
subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to,
the Registration Statement specified by the
Representatives or in documents incorporated by
reference in the Prospectus specified by the
Representatives, and have compared certain of such
amounts, percentages and financial information
with the accounting records of the Company and its
subsidiaries and have found them to be in
agreement.
All references in this Annex IV to the Prospectus
shall be deemed to refer to the Prospectus (including
the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in
relation to the applicable Designated Shares for
purposes of the letter delivered at the Time of
Delivery for such Designated Shares.
<PAGE>
ANNEX V
MATERIAL SUBSIDIARIES
Subsidiary Jurisdiction of Incorporation
Delta International Machinery Corp. Minnesota
Porter-Cable Corporation Minnesota
Century Mfg. Co. Minnesota
Lincoln Automotive Company Minnesota
Pentair Pump Group, Inc. Minnesota
Fleck Controls, Inc. Wisconsin
Lincoln Industrial Corporation Minnesota
Hoffman Enclosures Inc. Minnesota
Schroff, Inc. Rhode Island
Schroff K.K. Japan
Pentair UK Limited United Kingdom
Schroff UK Ltd United Kingdom
Pentair Enclosures UK Limited United Kingdom
WEB Tool & Manufacturing, Inc. Illinois
EuroPentair CmbH Germany
Schroff GmbH Germany
Schroff S.A. France
Lincoln GmbH Germany Germany
FLEX Elektrowerkzeuge GmbH Germany
WTM, Inc. Minnesota
Pentair Canada Canada
Essef Corporation Ohio
Falcon Manufacturing, Inc. Delaware
DeVilbiss Air Power Company Delaware
Pac-Fab, Inc. Delaware
Structural Europe NV Belgium
EXHIBIT 1.2
Pentair, Inc.
Debt Securities
Underwriting Agreement
September 30, 1999
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc One Capital Markets, Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
From time to time Pentair, Inc., a Minnesota
corporation (the "Company"), proposes to enter into one
or more Pricing Agreements (each a "Pricing Agreement")
in the form of Annex III hereto, with such additions
and deletions as the parties thereto may determine,
and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified
therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the
"Designated Securities").
The terms and rights of any particular issuance of
Designated Securities shall be as specified in the
Pricing Agreement relating thereto and in or pursuant
to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may
be made from time to time to the Underwriters of such
Securities, for whom the firms designated as
representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting
as sole representative of the Underwriters and to an
Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This
Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities
or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company
to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any
of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such
Designated Securities, the initial public offering
price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the
names of the Underwriters of such Designated
Securities, the names of the Representatives of such
Underwriters and the principal amount of such
Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and
manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture
and the registration statement and prospectus with
respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form
of an executed writing (which may be in counterparts),
and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device
designed to produce a written record of communications
transmitted. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3
(File No. 333-80159) (the "Initial Registration
Statement") in respect of the Securities and
certain other securities has been filed with the
Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including
all documents incorporated by reference in the
prospectus contained therein, to the
Representatives for each of the other
Underwriters, have been declared effective by the
Commission in such form; other than a registration
statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with
respect to the Initial Registration Statement or
document incorporated by reference therein has
heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each
in the form heretofore delivered to the
Representatives); and no stop order suspending the
effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any,
has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission
(any preliminary prospectus included in the
Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) under the Act,
is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration
Statement, any post-effective amendment thereto
and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the
documents incorporated by reference in the
prospectus contained in the Initial Registration
Statement at the time such part of the Initial
Registration Statement became effective but
excluding Form T-1, each as amended at the time
such part of the Initial Registration Statement
became effective or such part of the Rule 462(b)
Registration Statement, if any, became or
hereafter becomes effective, are hereinafter
collectively called the "Registration Statement";
the prospectus relating to the Securities, in the
form in which it has most recently been filed, or
transmitted for filing, with the Commission on or
prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to the applicable form under the Act, as
of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial
Registration Statement shall be deemed to refer to
and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the
Exchange Act after the effective date of the
Initial Registration Statement that is
incorporated by reference in the Registration
Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities
in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference
in the Prospectus, when they became effective or
were filed with the Commission, as the case may
be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder, and none of such documents
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; and any further documents
so filed and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto, when such documents become effective or
are filed with the Commission, as the case may be,
will conform in all material respects to the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder 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; provided, however, that
this representation and warranty shall not apply
to any statements or omissions made in reliance
upon and in conformity with information furnished
in writing to the Company by an Underwriter of
Designated Securities through the Representatives
expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or
supplements to the Registration Statement or the
Prospectus will conform, in all material respects
to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of
the Commission thereunder and do not and will not,
as of the applicable effective date as to the
Registration Statement and any amendment thereto
and as of the applicable filing date as to the
Prospectus and any amendment or supplement
thereto, 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; provided,
however, that this representation and warranty
shall not apply to any statements or omissions
made in reliance upon and in conformity with
information furnished in writing to the Company by
an Underwriter of Designated Securities through
the Representatives expressly for use in the
Prospectus as amended or supplemented relating to
such Securities or to any statement in or omission
from the Form T-1;
(d) Neither the Company nor any of its
subsidiaries has sustained since the date of the
latest audited financial statements included or
incorporated by reference in the Prospectus any
material loss or interference with its business
from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any
labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the
respective dates as of which information is given
in the Registration Statement and the Prospectus,
there has not been any change in the capital stock
(other than pursuant to the Company's employee and
director stock option plans) or increase in short-
term or long-term debt of the Company or any of
its subsidiaries in excess of 5% of total debt of
the Company and its subsidiaries, taken as a
whole, computed in accordance with generally
accepted accounting principles, or any material
adverse change, or any development involving a
prospective material adverse change, in or
affecting the general affairs, management,
financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, as amended or
supplemented;
(e) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus and has been duly
qualified as a foreign corporation for the
transaction of business and is in good standing
under the laws of each other jurisdiction in which
it owns or leases properties or conducts any
business so as to require such qualification or is
subject to no material liability or disability by
reason of the failure to be so qualified in any
such jurisdiction; and each material subsidiary of
the Company, as set forth on Annex V attached
hereto (each a "Material Subsidiary" and, together
the "Material Subsidiaries") has been duly
incorporated or organized, as the case may be, and
is validly existing as a corporation or
partnership, as the case may be, in good standing
under the laws of its jurisdiction of
incorporation or organization;
(f) The Company and its Material
Subsidiaries have good and indefeasible title to
all real property and good and marketable title to
all personal property owned by them, free and
clear of all liens, encumbrances and defects
except for liens, encumbrances and defects that,
individually or in the aggregate, will not have a
material adverse effect on the business,
consolidated financial position, stockholders
equity or results of operation of the Company and
its subsidiaries taken as a whole; and any real
property and buildings held under lease by the
Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases,
subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles;
(g) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued shares of capital stock of the
Company have been duly and validly authorized and
issued and are fully paid and non-assessable and
all of the issued shares of capital stock of each
Material Subsidiary of the Company have been duly
and validly authorized and issued, are fully paid
and non-assessable, are owned directly or
indirectly by the Company and are owned free and
clear of all liens, encumbrances, equities or
claims;
(h) The Securities have been duly
authorized, and, when Designated Securities are
issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such
Designated Securities, such Designated Securities
will have been duly executed, authenticated,
issued and delivered and will constitute valid and
legally binding obligations of the Company
entitled to the benefits provided by the
Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement
(except to the extent that the terms of any
Designated Securities or Supplemental Indenture
render certain provisions of the Indenture
inapplicable to such Designated Securities)
subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium,
reorganization and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles; the
Indenture has been duly authorized by the Company
and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the
Designated Securities will conform to the
descriptions thereof contained in the Prospectus
as amended or supplemented with respect to such
Designated Securities;
(i) None of the transactions contemplated by
this Agreement (including, without limitation, the
use of the proceeds from the sale of the
Securities) will violate or result in a violation
of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including,
without limitation, Regulations G, T, U, and X of
the Board of Governors of the Federal Reserve
System;
(j) The issue and sale of the Securities and
the compliance by the Company with all of the
provisions of the Designated Securities, the
Indenture, this Agreement and any Pricing
Agreement, and the consummation of the
transactions herein and therein contemplated will
not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company
or any of its subsidiaries is subject, excluding
conflicts, breaches, violations and defaults that,
individually or in the aggregate, will not have a
material adverse effect on the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries taken as a whole, nor will such
action result in any violation of the provisions
of the Articles of Incorporation or By-laws of the
Company or any of its Material Subsidiaries or any
statute or any order, rule or regulation of any
court or governmental agency or body having
jurisdiction over the Company or any of its
subsidiaries or any of their properties; and, no
consent, approval, authorization, order,
registration or qualification of or with any such
court or governmental agency or body is required
for the issue and sale of the Securities or the
consummation by the Company of the transactions
contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have
been, or will have been prior to each Time of
Delivery (as defined in Section 4 herein),
obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under state securities or Blue Sky laws in
connection with the purchase and distribution of
the Securities by the Underwriters;
(k) The statements set forth in the
Prospects under the caption "Description of
Securities", insofar as they purport to constitute
a summary of the terms of the Securities, and
under the caption "Plan of Distribution", insofar
as they purport to describe the provisions of the
laws and documents referred to therein, are
accurate, complete and fair;
(l) Neither the Company nor any of its
Material Subsidiaries is (i) in violation of its
Articles of Incorporation or By-laws or (ii) in
default in the performance or observance of any
material obligation, agreement, covenant or
condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or
by which it or any of its properties may be bound,
except, with respect to clause (ii) above, for
defaults that, individually or in the aggregate,
will not have a material adverse effect on the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a
whole;
(m) Other than as set forth in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries
is the subject which, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a material
adverse effect on the current or future
consolidated financial position, shareholders'
equity or results of operations of the Company and
its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others;
(n) The Company is not and, after giving
effect to the offering and sale of the Securities,
will not be an "investment company," or an entity
"controlled" by an "investment company," as such
terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(o) Neither the Company nor any of its
affiliates does business with the government of
Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075,
Florida Statutes;
(p) Deloitte & Touche, LLP and
Pricewaterhouse Coopers LLP, who have certified
certain financial statements of the Company and
its subsidiaries, are independent public
accountants as required by the Act and the rules
and regulations of the Commission thereunder; and
(q) The pro forma balance sheets and pro
forma statements of operations and the related
notes thereto included in the Prospectus
(collectively, the "pro forma financial
statements") have been prepared in accordance with
the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission; the
assumptions used and described in the pro forma
financial statements provide a reasonable basis
for presenting the significant effects
attributable to the transactions described
therein; the pro forma adjustments contained in
the pro forma financial statements give
appropriate effect to such assumptions and include
all adjustments necessary to present fairly the
effects of such transactions; and the pro forma
columns contained in the pro forma financial
statements reflect the proper application of such
adjustments to the historical financial amounts
contained in the pro forma financial statements;
(r) Except as disclosed in the Prospectus,
the Company has not been advised and has no reason
to believe that either the Company or any of its
subsidiaries is not conducting its business in
compliance with all applicable statutes, rules,
regulations and orders administered or issued by
any governmental or regulatory authority on the
jurisdictions in which it is conducting business,
except where the failure to be so in compliance
would not materially adversely affect the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a
whole; and
(s) The Company has reviewed its operations
and those of its Material Subsidiaries and has
requested from third parties with which the
Company or any of its Material Subsidiaries has a
material relationship a certification of
compliance, in order to evaluate the extent to
which the business or operations of the Company
and its Material Subsidiaries will be affected by
the Year 2000 Problem. As a result of such
review, the Company has no reason to believe and
does not believe that the Year 2000 Problem will
have a material adverse effect on the business,
consolidated financial position, stockholders'
equity or results of operations of the Company and
its subsidiaries, taken as a whole. The "Year
2000 Problem" as used herein means any significant
risk that computer hardware or software used in
the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission
or other utilization of data or in the operation
of mechanical or electrical systems o any kind
will not, in the case of dates or time periods
occurring after December 31, 1999, function at
least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Securities and
authorization by the Representatives of the release of
such Designated Securities, the several Underwriters
propose to offer such Designated Securities for sale
upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and
registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of
such Underwriter, against payment by such Underwriter
or on its behalf of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account
specified by the Company to the Representatives at
least forty-eight hours in advance or at such other
place and time and date as the Representatives and the
Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the
Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or
supplemented in relation to the applicable
Designated Securities in a form approved by the
Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the
second business day following the execution and
delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if
applicable, such earlier time as may be required
by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement or
Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for
such Securities which shall be disapproved by the
Representatives for such Securities promptly after
reasonable notice thereof; to advise the
Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or
information statements required to be filed by the
Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is
required in connection with the offering or sale
of such Securities, and during such same period to
advise the Representatives, promptly after it
receives notice thereof, of the time when any
amendment to the Registration Statement has been
filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the
Commission of any stop order or of any order
preventing or suspending the use of any
Preliminary Prospectus or Prospectus relating to
the Securities, of the suspension of the
qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such
purpose, or of any request by the Commission for
the amending or supplementing of the Registration
Statement or Prospectus or for additional
information; and, in the event of the issuance of
any such stop order or of any such order
preventing or suspending the use of the
Registration Statement or the Prospectus relating
to the Securities or suspending any such
qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such
action as the Representatives may reasonably
request to qualify such Designated Securities for
offering and sale under the securities laws of
such jurisdictions as the Representatives may
request and to comply with such laws so as to
permit the continuance of sales and dealings
therein in such jurisdictions for as long as may
be necessary to complete the distribution of such
Designated Securities, provided that in connection
therewith the Company shall not be required to
qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time,
on the business day next succeeding the date of
any Pricing Agreement and from time to time, to
furnish the Underwriters with copies of the
Prospectus in New York City as amended or
supplemented in such quantities as the
Representatives may reasonably request, and, if
the delivery of a prospectus is required at any
time in connection with the offering or sale of
the Securities and if at such time any event shall
have occurred as a result of which the Prospectus
as then amended or supplemented would include an
untrue statement of a material fact or omit to
state any material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during
such same period to amend or supplement the
Prospectus or to file under the Exchange Act any
document incorporated by reference in the
Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file
such document and to prepare and furnish without
charge to each Underwriter and to any dealer in
securities as many copies as the Representatives
may from time to time reasonably request of an
amended Prospectus or a supplement to the
Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its
securityholders as soon as practicable, but in any
event not later than eighteen months after the
effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries
(which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of
the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the
date of the Pricing Agreement for such Designated
Securities and continuing to and including the
later of (i) the termination of trading
restrictions for the Designated Securities, as
notified to the Company by the Representatives and
(ii) the Time of Delivery for such Designated
Securities, neither the Company nor any of its
subsidiaries, or other affiliates over which it
exercises management or voting control, nor any
other person acting on its behalf, without the
prior written consent of the Representatives,
offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company pursuant to
a public offering or a private placement with
registration rights or any securities that are
convertible into or exchangeable for, or otherwise
represent a right to acquire any such debt
securities;
(f) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act;
(g) During a period of three years from the
date hereof, to furnish (unless otherwise publicly
available on Edgar) to the Representatives copies
of all reports or other communications (financial
or other) furnished to shareholders of the
Company, and to deliver to the Representatives (i)
as soon as practicable after they are available,
copies of any reports and financial statements
furnished to or filed with the Commission or any
securities exchange (other than filings made on a
confidential basis) on which the common stock or
any class of securities of the Company is listed;
and (ii) such additional information concerning
the business and financial condition of the
Company as the Representatives may from time to
time reasonably request (such financial statements
to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are
consolidated in reports furnished to its
shareholders generally or to the Commission); and
(h) To use the net proceeds received by it
from the sale of the Securities pursuant to this
Agreement and any Pricing Agreement in the manner
specified in the Prospectus under the caption "Use
of Proceeds."
6. The Company covenants and agrees with the
several Underwriters that the Company will pay or cause
to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants
in connection with the registration of the Securities
under the Act and all other expenses in connection with
the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and
the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any
other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii)
all expenses in connection with the qualification of
the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and
in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) the fees and
expenses of any Trustee and any agent of any Trustee
and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the
Securities; and (vi) all other costs and expenses
incident to the performance of its obligations
hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and
11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any
Designated Securities under the Pricing Agreement
relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to
the condition that all representations and warranties
and other statements of the Company in or incorporated
by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and
correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore
to be performed, and the following additional
conditions:
(a) The Prospectus as amended or
supplemented in relation to the applicable
Designated Securities shall have been filed with
the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing
by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the
Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration
Statement or any part thereof shall have been
issued and no proceeding for that purpose shall
have been initiated or threatened by the
Commission; and all requests for additional
information on the part of the Commission shall
have been complied with to the Representatives'
reasonable satisfaction;
(b) Dorsey & Whitney LLP, counsel for the
Underwriters, shall have furnished to the
Representatives such written opinion or opinions,
dated the Time of Delivery for such Designated
Securities, with respect to the Securities, the
Indenture, this Agreement, the Pricing Agreement,
the Registration Statement and the Prospectus, as
well as such other related matters as the
Representatives may reasonably request, and such
counsel shall have received such papers and
information as they may reasonably request to
enable them to pass upon such matters;
(c) Louis L. Ainsworth, Senior Vice
President and General Counsel of the Company,
shall have furnished to the Representatives his
written opinion or opinions, dated the Time of
Delivery for such Designated Securities, as to the
matters set forth in Annex I hereto and in form
and substance satisfactory to the Representatives.
(d) Henson & Efron, P.A., counsel for the
Company, shall have furnished to the
Representatives their written opinion or opinions,
dated the Time of Delivery for such Designated
Securities, as to the matters set forth in Annex
II hereto and in form and substance satisfactory
to the Representatives.
(e) On the date of the Pricing Agreement for
such Designated Securities and at each Time of
Delivery for such Designated Securities, the
independent accountants of the Company who have
certified the financial statements of the Company
and its subsidiaries included or incorporated by
reference in the Registration Statement shall have
furnished to Goldman, Sachs & Co., on behalf of
the underwriters, a letter, dated the date of this
Agreement, and a letter dated such Time of
Delivery, respectively, to the effect set forth in
Annex IV hereto, and with respect to such letter
dated such Time of Delivery, as to such other
matters as the Representatives may reasonably
request and in form and substance satisfactory to
the Representatives;
(f) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date
of the latest audited financial statements
included or incorporated by reference in the
Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated
Securities any loss or interference with its
business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental
action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended
prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii)
since the respective dates as of which information
is given in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the
Designated Securities there shall not have been
any material change in the capital stock (other
than pursuant to the Company's employee and
director stock option plans), or any increase in
short-term or long-term debt of the Company or any
of its subsidiaries in excess of 5% of total debt
of the Company and its subsidiaries, taken as a
whole, computed in accordance with generally
accepted accounting principles, or any change, or
any development involving a prospective change, in
or affecting the general affairs, management,
financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities,
the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with
the public offering or the delivery of the
Designated Securities on the terms and in the
manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing
Agreement relating to the Designated Securities
(i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or
preferred stock by any "nationally recognized
statistical rating organization", as that term is
defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it
has under surveillance or review, with possible
negative implications, its rating of any of the
Company's debt securities or preferred stock;
(h) On or after the date of the Pricing
Agreement relating to the Designated Securities
there shall not have occurred any of the
following: (i) a suspension or material limitation
in trading in securities generally on the New York
Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities
on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities
declared by either Federal or New York State
authorities; (iv) the outbreak or escalation of
hostilities involving the United States or the
declaration by the United States of a national
emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of
the Representatives makes it impracticable or
inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the
terms and in the manner contemplated in the
Prospectus as first amended or supplemented
relating to the Designated Securities; or (v) the
occurrence of any material adverse change in the
existing financial, political or economic
conditions in the United States or elsewhere
which, in the judgment of the Representatives,
would materially and adversely affect the
financial markets for the Securities and other
debt securities;
(i) The Company shall have complied with the
provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the business day
next succeeding the date of the applicable Pricing
Agreement relating to such Designated Securities;
(j) The Company shall have furnished or
caused to be furnished to the Representatives at
the Time of Delivery for the Designated Securities
a certificate or certificates of officers of the
Company satisfactory to the Representatives as to
the accuracy of the representations and warranties
of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of
all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the
Representatives may reasonably request; and
(k) The Company shall have completed its
concurrent offering of 5,500,000 shares of common
stock.
8. (a) The Company will indemnify and hold
harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several,
to which such Underwriter may become subject,
under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus
relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based
upon the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, and will reimburse each
Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in
connection with investigating or defending any
such action or claim as such expenses are
incurred; provided, however, that the Company
shall not be liable in any such case to the extent
that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Securities, or any such amendment or
supplement in reliance upon and in conformity with
written information furnished to the Company by
any Underwriter of Designated Securities through
the Representatives expressly for use in the
Prospectus as amended or supplemented relating to
such Securities.
(b) Each Underwriter will indemnify and hold
harmless the Company against any losses, claims,
damages or liabilities to which the Company may
become subject, under the Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or
alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, in each case to the extent, but only
to the extent, that such untrue statement or
alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating
to the Securities, or any such amendment or
supplement in reliance upon and in conformity with
written information furnished to the Company by
such Underwriter through the Representatives
expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably
incurred by the Company in connection with
investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice
of the commencement of any action, such
indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying
party under such subsection, notify the
indemnifying party in writing of the commencement
thereof; but the omission so to notify the
indemnifying party shall not relieve it from any
liability which it may have to any indemnified
party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the
indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to
participate therein and, to the extent that it
shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party
of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such
indemnified party under such subsection for any
legal expenses of other counsel or any other
expenses, in each case subsequently incurred by
such indemnified party, in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall,
without the written consent of the indemnified
party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect
to, any pending or threatened action or claim in
respect of which indemnification or contribution
may be sought hereunder (whether or not the
indemnified party is an actual or potential party
to such action or claim) unless such settlement,
compromise or judgment (i) includes an
unconditional release of the indemnified party
from all liability arising out of such action 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.
No indemnifying party shall be liable under
Sections (a) or (b) above for any settlement of
any claim or action effected without its consent,
which consent will not be unreasonably withheld.
(d) If the indemnification provided for in
this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a
result of such losses, claims, damages or
liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the
relative benefits received by the Company on the
one hand and the Underwriters of the Designated
Securities on the other from the offering of the
Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by
the immediately preceding sentence is not
permitted by applicable law or if the indemnified
party failed to give the notice required under
subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by
such indemnified party in such proportion as is
appropriate to reflect not only such relative
benefits but also the relative fault of the
Company on the one hand and the Underwriters of
the Designated Securities on the other in
connection with the statements or omissions which
resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as
well as any other relevant equitable
considerations. The relative benefits received by
the Company on the one hand and such Underwriters
on the other shall be deemed to be in the same
proportion as the total net proceeds from such
offering (before deducting expenses) received by
the Company bear to the total underwriting
discounts and commissions received by such
Underwriters. The relative fault shall be
determined by reference to, among other things,
whether the untrue or alleged untrue statement of
a material fact or the omission or alleged
omission to state a material fact relates to
information supplied by the Company on the one
hand or such Underwriters on the other 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
subsection (d) 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 subsection (d). The amount paid or
payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this
subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by
such indemnified party in connection with
investigating or defending any such action or
claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount
by which the total price at which the applicable
Designated 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 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 Act)
shall be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. The obligations of the
Underwriters of Designated Securities in this
subsection (d) to contribute are several in
proportion to their respective underwriting
obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under
this Section 8 shall be in addition to any
liability which the Company may otherwise have and
shall extend, upon the same terms and conditions,
to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section
8 shall be in addition to any liability which the
respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions,
to each officer and director of the Company and to
each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Designated Securities
which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities,
the Representatives may in their discretion
arrange for themselves or another party or other
parties to purchase such Designated Securities on
the terms contained herein. If within thirty-six
hours after such default by any Underwriter the
Representatives do not arrange for the purchase of
such Designated Securities, then the Company shall
be entitled to a further period of thirty-six
hours within which to procure another party or
other parties satisfactory to the Representatives
to purchase such Designated Securities on such
terms. In the event that, within the respective
prescribed period, the Representatives notify the
Company that they have so arranged for the
purchase of such Designated Securities, or the
Company notifies the Representatives that it has
so arranged for the purchase of such Designated
Securities, the Representatives or the Company
shall have the right to postpone the Time of
Delivery for such Designated Securities for a
period of not more than seven days, in order to
effect whatever changes may thereby be made
necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company
agrees to file promptly any amendments or
supplements to the Registration Statement or the
Prospectus which in the opinion of the
Representatives may thereby be made necessary.
The term "underwriter" as used in this Agreement
shall include any person substituted under this
Section with like effect as if such person had
originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any
arrangements for the purchase of the Designated
Securities of a defaulting Underwriter or
Underwriters by the Representatives and the
Company as provided in subsection (a) above, the
aggregate principal amount of such Designated
Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the
Company shall have the right to require each
non-defaulting Underwriter to purchase the
principal amount of Designated Securities which
such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated
Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro
rata share (based on the principal amount of
Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement)
of the Designated Securities of such defaulting
Underwriter or Underwriters for which such
arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any
arrangements for the purchase of the Designated
Securities of a defaulting Underwriter or
Underwriters by the Representatives and the
Company as provided in subsection (a) above, the
aggregate principal amount of Designated
Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of
the Designated Securities, as referred to in
subsection (b) above, or if the Company shall not
exercise the right described in subsection (b)
above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Securities
shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by
the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the
Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any
investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for
the Securities.
11. If any Pricing Agreement shall be terminated
pursuant to Section 9 hereof, the Company shall not
then be under any liability to any Underwriter with
respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 6 and
8 hereof; but, if for any other reason Designated
Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse
the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery
of such Designated Securities, but the Company shall
then be under no further liability to any Underwriter
with respect to such Designated Securities except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the
Representatives of the Underwriters of Designated
Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the
Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement;
and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of
the Company set forth in the Registration Statement:
Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address
will be supplied to the Company by the Representatives
upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls
the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean
any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement
shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement and each Pricing Agreement may
be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such
respective counterparts shall together constitute one
and the same instrument.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof.
Very truly yours,
Pentair, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc One Capital Markets, Inc.
By:
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
ANNEX I
Louis L. Ainsworth, Esq., General Counsel of
the Company, shall have furnished to the
Representatives his written opinion, dated the Time of
Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued
shares of capital stock of the Company have been
duly and validly authorized and issued and are
fully paid and non-assessable;
(iii) To the best of such counsel's
knowledge and other than as set forth in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of
its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries
is the subject which will, in such counsel's
reasonable belief, individually or in the
aggregate, have a material adverse effect on the
business, consolidated financial position,
stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole;
and, to the best of such counsel's knowledge, no
such proceedings are threatened by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities have
been duly authorized, executed and delivered by
the Company;
(v) The issue and sale of the Designated
Securities and the compliance by the Company with
all of the provisions of the Designated
Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated
Securities and the consummation of the
transactions herein and therein contemplated will
not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to
which the Company or any of its Material
Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company
or any of its Material Subsidiaries is subject;
(ii) result in any violation of the provisions of
the Articles of Incorporation or By-laws of the
Company or any of its Material Subsidiaries; or
(iii) result in a violation of any statute or any
order, rule or regulation known to such counsel
and applicable to the Company or any of its
Material Subsidiaries or any of their respective
properties of any court or governmental agency or
body having jurisdiction over the Company or any
of its Material Subsidiaries or any of their
respective properties (except that such counsel
need express no opinion with respect to state
securities laws or Blue Sky laws with respect to
this paragraph) (and that such opinion shall not
extend to compliance with the anti-fraud
provisions of federal or state securities laws);
except in the case of clauses (i) and (iii) of
this paragraph, for such conflicts, breaches,
violations and defaults as are not reasonably
likely, individually or in the aggregate, to have
a material adverse effect on the business,
consolidated financial position, stockholders'
equity, results of operations, business or
prospects of the Company and its subsidiaries,
taken as a whole;
(vi) The documents incorporated by reference
in the Prospectus as amended or supplemented
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion), when they became effective or
were filed with the Commission, as the case may
be, complied as to form in all material respects
with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has
no reason to believe that any of such documents,
when they became effective or were so filed, as
the case may be, contained, in the case of a
registration statement which became effective
under the Act, 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, in the case
of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading;
(vii) The statements set forth in the
Prospectus under the captions "Description of Debt
Securities" and "Description of the Notes,"
insofar as they purport to constitute a summary of
the terms of the Designated Securities, and under
the captions "Plan of Distribution" and
"Underwriting" insofar as they purport to
summarize the provisions of the laws and documents
referred to therein, are accurate summaries and
fairly present the information called for with
respect to such matters;
(viii) Neither the Company nor any of its
subsidiaries is in violation of its By-laws or
Articles of Incorporation or in default in the
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to
which it is a party or by which it or any of its
properties may be bound; and
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder;
although they do not assume any responsibility for
the accuracy, completeness or fairness of the
statements contained in the Registration Statement
or the Prospectus, except for those referred to in
the opinion in subsection (vii) hereof, such
counsel has no reason to believe that, as of its
effective date, the Registration Statement or any
further amendment thereto made by the Company
prior to the Time of Delivery (other than the
financial statements, including the notes thereto,
and related schedules therein, as to which such
counsel need express no opinion) 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, as of its date,
the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements, including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omitted to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the
Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contains an untrue statement of a material fact or
omits to state a material fact necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading; and they do not know of any amendment
to the Registration Statement required to be filed
or any contracts or other documents of a character
required to be filed as an exhibit to the
Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are
not filed or incorporated by reference or
described as required.
<PAGE>
ANNEX II
Henson & Efron, P.A., counsel for the
Company, shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as
amended or supplemented, and all of the issued
shares of capital stock of the Company have been
duly and validly authorized and issued and are
fully paid and non-assessable;
(iii) This Agreement and the Pricing
Agreement with respect to the Designated
Securities have been duly authorized, executed and
delivered by the Company;
(iv) The Designated Securities have been duly
authorized, executed, authenticated, issued and
delivered, and, when paid for in accordance with
the terms hereof, will constitute valid and
legally binding obligations of the Company
entitled to the benefits provided by the Indenture
and enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium,
reorganization and similar laws of general
applicability relating to or affecting creditors'
rights and general equity principles; and the
Designated Securities and the Indenture conform in
all material respects to the descriptions thereof
in the Prospectus as amended or supplemented;
(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 legally binding obligation of the
Company, enforceable against the Company in
accordance with its terms, subject, as to its
enforceability, to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization
and similar laws of general applicability relating
to or affecting creditors' rights and to general
equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) No consent, approval, authorization,
order, registration or qualification of or with
any court or governmental agency or body is
required to be made by the Company for the issue
and sale of the Designated Securities or the
consummation by the Company of the transactions
contemplated by this Agreement, such Pricing
Agreement or the Indenture, except such as have
been obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, orders, registrations or
qualifications as may be required under state
securities or Blue Sky laws (as to the
applicability of which no opinion need be
expressed) in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(vii) The statements set forth in the
Prospectus under the captions "Description of Debt
Securities" and "Description of the Notes,"
insofar as they purport to constitute a summary of
the terms of the Designated Securities, and under
the captions "Plan of Distribution" and
"Underwriting," insofar as they purport to
summarize the provisions of the laws and documents
referred to therein, are accurate summaries and
fairly present the information called for with
respect to such matters;
(viii) The Company is not an "investment
company," or an entity "controlled" by an
"investment company, " as such term is defined in
the Investment Company Act;
(ix) The issue and sale of the Designated
Securities and the compliance by the Company with
all of the provisions of the Designated
Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated
Securities and the consummation of the
transactions herein and therein contemplated will
not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to
which the Company or any of its Material
Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company
or any of its Material Subsidiaries is subject;
(ii) result in any violation of the provisions of
the Articles of Incorporation or By-laws of the
Company or any of its Material Subsidiaries
incorporated within the United States; or (iii)
result in a violation of any statute or any order,
rule or regulation known to such counsel and
applicable to the Company or any of its Material
Subsidiaries or any of their respective properties
of any court or governmental agency or body having
jurisdiction over the Company or any of its
Material Subsidiaries or any of their respective
properties (except that such counsel need express
no opinion with respect to state securities laws
or Blue Sky laws with respect to this paragraph)
(and that such opinion shall not extend to
compliance with the anti-fraud provisions of
federal or state securities laws); except in the
case of clauses (i) and (iii) of this paragraph,
for such conflicts, breaches, violations and
defaults as are not reasonably likely,
individually or in the aggregate, to have a
material adverse effect on the business,
consolidated financial position, stockholders'
equity, results of operations, business or
prospects of the Company and its subsidiaries,
taken as a whole. In rendering the opinion set
forth in clause (i) of this paragraph, we have,
with your approval relied without investigation,
on a certificate of the Treasurer of the Company,
which includes calculations of the Company, as to
the Company's compliance with the financial ratios
and tests, which certificate is attached hereto;
(x) The documents incorporated by reference
in the Prospectus as amended or supplemented
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion), when they became effective or
were filed with the Commission, as the case may
be, complied as to form in all material respects
with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations
of the Commission thereunder; and nothing has come
to such counsel's attention that causes it to
believe that any of such documents, when they
became effective or were so filed, as the case may
be, contained, in the case of a registration
statement which became effective under the Act, 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, in the case of other
documents which were filed under the Act or the
Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(xi) The Registration Statement and the
Prospectus as amended or supplemented and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the
Designated Securities (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder;
although they do not assume any responsibility for
the accuracy, completeness or fairness of the
statements contained in the Registration Statement
or the Prospectus and nothing has come to such
counsel's attention that causes it to believe that
as of its effective date, the Registration
Statement or any further amendment thereto made by
the Company prior to the Time of Delivery (other
than the financial statements, including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
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, as of its date,
the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements, including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contained an untrue statement of a material fact
or omitted to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the
Prospectus as amended or supplemented or any
further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other
than the financial statements including the notes
thereto, and related schedules therein, as to
which such counsel need express no opinion)
contains an untrue statement of a material fact or
omits to state a material fact necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading; and they do not know of any amendment
to the Registration Statement required to be filed
or any contracts or other documents of a character
required to be filed as an exhibit to the
Registration Statement or required to be
incorporated by reference into the Prospectus as
amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are
not filed or incorporated by reference or
described as required.
<PAGE>
ANNEX III
Pricing Agreement
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc One Capital Markets, Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
September 30, 1999
Ladies and Gentlemen:
Pentair, Inc., a Minnesota corporation (the
"Company'), proposes, subject to the terms and
conditions stated herein and in the Underwriting
Agreement, dated September 30, 1999 (the "Underwriting
Agreement"), between the Company on the one hand and
Goldman, Sachs & Co., J.P. Morgan Securities Inc. and
Banc One Capital Markets, Inc. on the other hand, to
issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in
full herein; and each of the representations and
warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing
Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus
(as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the
Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such
Section 12 are set forth at the end of Schedule II
hereto.
An amendment to the Registration Statement,
or a supplement to the Prospectus, as the case may be,
relating to the Designated Securities, in the form
heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth
herein and in the Underwriting Agreement incorporated
herein by reference, the Company agrees to issue and
sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at
the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is
understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall
be submitted to the Company for examination upon
request, but without warranty on the part of the
Representatives as to the authority of the signers
thereof.
Very truly yours,
Pentair, Inc.
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities, Inc.
Banc One Capital Markets, Inc.
By:
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
Underwriter
Goldman, Sachs & Co. $125,000,000
J.P.Morgan Securities Inc. 75,000,000
Banc One Capital Markets, Inc. 50,000,000
Total $250,000,000
<PAGE>
SCHEDULE II
Title of Designated Securities:
7.85% Senior Notes due 2009
Aggregate principal amount:
$250,000,000
Price to Public:
99.743% of the principal amount of the Designated
Securities, plus accrued interest, if any, from
October 5, 1999
Purchase Price by Underwriters:
99.093% of the principal amount of the Designated
Securities, plus accrued interest from October 5,
1999
Form of Designated Securities:
Book-entry only form represented by one or more
global securities deposited with The Depository
Trust Company or its designated custodian
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
9:30 a.m. (New York City time), October 5, 1999
Indenture:
Indenture dated June 1, 1999 between the Company
and U.S. Bank Trust National Association, as
Trustee
Maturity:
October 15, 2009
Interest Rate:
7.85%
Interest Payment Dates:
April 15 and October 15, commencing April 15, 2000
Redemption Provisions:
Applicable--See Prospectus Supplement dated
September 30, 1999
Sinking Fund Provisions:
No sinking fund provisions
Extendable provisions:
No extendable provisions
Floating rate provisions:
No floating rate provisions
Defeasance provisions:
Applicable--See Prospectus Supplement dated
September 30, 1999
Closing location for delivery of Designated Securities:
Henson & Efron, P.A., Minneapolis, Minnesota
Additional Closing Conditions:
None
Names and addresses of Representatives:
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Banc One Capital Markets, Inc.
One First National Plaza
Chicago, Illinois 60670
Other Terms:
None
<PAGE>
ANNEX IV
Pursuant to Section 7(d) of the Underwriting
Agreement, the accountants shall furnish letters to the
Underwriters to the effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the
Commission;
(ii) In their opinion, the financial
statements and any supplementary financial
information and schedules audited (and, if
applicable, financial forecasts and/or pro forma
financial information) examined by them and
included or incorporated by reference in the
Registration Statement or the Prospectus comply as
to form in all material respects with the
applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related
rules and regulations; and, if applicable, they
have made a review in accordance with standards
established by the American Institute of Certified
Public Accountants of the consolidated interim
financial statements, including the notes thereto,
selected financial data, pro forma financial
information, financial forecasts and/or condensed
financial statements derived from audited
financial statements of the Company for the
periods specified in such letter, as indicated in
their reports thereon, copies of which have been
furnished to the representative or representatives
of the Underwriters (the "Representatives") such
term to include an Underwriter or Underwriters who
act without any firm being designated as its or
their representatives;
(iii) They have made a review in
accordance with standards established by the
American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements
of income, consolidated balance sheets and
consolidated statements of cash flows included in
the Prospectus and/or included in the Company's
quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in
their reports thereon copies of which are attached
to such letters; and on the basis of specified
procedures including inquiries of officials of the
Company who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the
applicable accounting requirements of the Act and
the Exchange Act and the related rules and
regulations, nothing came to their attention that
caused them to believe that the unaudited
condensed consolidated financial statements do not
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the Exchange Act and the related rules and
regulations adopted by the Commission;
(iv) The unaudited selected financial
information with respect to the consolidated
results of operations and financial position of
the Company for the five most recent fiscal years
included in the Prospectus and included or
incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in
the audited consolidated financial statements for
five such fiscal years included or incorporated by
reference in the Company's Annual Reports on Form
10-K for such fiscal years;
(v) They have compared the information in
the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such
letter nothing came to their attention as a result
of the foregoing procedures that caused them to
believe that this information does not conform in
all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with
generally accepted auditing standards, consisting
of a reading of the unaudited financial statements
and other information referred to below, a reading
of the latest available interim financial
statements of the Company and its subsidiaries,
inspection of the minute books of the Company and
its subsidiaries since the date of the latest
audited financial statements included or
incorporated by reference in the Prospectus,
inquiries of officials of the Company and its
subsidiaries responsible for financial and
accounting matters and such other inquiries and
procedures as may be specified in such letter,
nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed
consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included in the
Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all
material respects with the applicable
accounting requirements of the Exchange Act
and the published rules and regulations
adopted by the Commission, or (ii) any
material modifications should be made to the
unaudited condensed consolidated statements
of income, consolidated balance sheets and
consolidated statements of cash flows
included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus
for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income
statement data and balance sheet items
included in the Prospectus do not agree with
the corresponding items in the unaudited
consolidated financial statements from which
such data and items were derived, and any
such unaudited data and items were not
determined on a basis substantially
consistent with the basis for the
corresponding amounts in the audited
consolidated financial statements included or
incorporated by reference in the Company's
Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements
which were not included in the Prospectus but
from which were derived the unaudited
condensed financial statements referred to in
clause (A) and any unaudited income statement
data and balance sheet items included in the
Prospectus and referred to in clause (B) were
not determined on a basis substantially
consistent with the basis for the audited
financial statements included or incorporated
by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma
consolidated condensed financial statements
included or incorporated by reference in the
Prospectus do not comply as to form in all
material respects with the applicable
accounting requirements of the Act and the
rules and regulations adopted by the
Commission thereunder or the pro forma
adjustments have not been properly applied to
the historical amounts in the compilation of
those statements;
(E) as of a specified date not more
than five days prior to the date of such
letter, there have been any changes in the
consolidated capital stock (other than
issuances of capital stock upon exercise of
options and stock appreciation rights, upon
earn-outs of performance shares and upon
conversions of convertible securities, in
each case which were outstanding on the date
of the latest balance sheet included or
incorporated by reference in the Prospectus)
or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or
any decreases in consolidated net current
assets or shareholders' equity or other items
specified by the Representatives, or any
increases in any items specified by the
Representatives, in each case as compared
with amounts shown in the latest balance
sheet included or incorporated by reference
in the Prospectus, except in each case for
changes, increases or decreases which the
Prospectus discloses have occurred or may
occur or which are described in such letter;
and
(F) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus
to the specified date referred to in clause
(E) there were any decreases in consolidated
net revenues or operating profit or the total
or per share amounts of consolidated net
income or other items specified by the
Representatives, or any increases in any
items specified by the Representatives, in
each case as compared with the comparable
period of the preceding year and with any
other period of corresponding length
specified by the Representatives, except in
each case for increases or decreases which
the Prospectus discloses have occurred or may
occur or which are described in such letter;
and
(vii) In addition to the audit referred
to in their report(s) included or incorporated by
reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out
certain specified procedures, not constituting an
audit in accordance with generally accepted
auditing standards, with respect to certain
amounts, percentages and financial information
specified by the Representatives which are derived
from the general accounting records of the Company
and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified
by the Representatives or in documents
incorporated by reference in the Prospectus
specified by the Representatives, and have
compared certain of such amounts, percentages and
financial information with the accounting records
of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex IV to the Prospectus
shall be deemed to refer to the Prospectus (including
the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing
Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in
relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
<PAGE>
ANNEX V
MATERIAL SUBSIDIARIES
Subsidiary Jurisdiction of Incorporation
Delta International Machinery Corp. Minnesota
Porter-Cable Corporation Minnesota
Century Mfg. Co. Minnesota
Lincoln Automotive Company Minnesota
Pentair Pump Group, Inc. Minnesota
Fleck Controls, Inc. Wisconsin
Lincoln Industrial Corporation Minnesota
Hoffman Enclosures Inc. Minnesota
Schroff, Inc. Rhode Island
Schroff K.K. Japan
Pentair UK Limited United Kingdom
Schroff UK Ltd United Kingdom
Pentair Enclosures UK Limited United Kingdom
WEB Tool & Manufacturing, Inc. Illinois
EuroPentair CmbH Germany
Schroff GmbH Germany
Schroff S.A. France
Lincoln GmbH Germany Germany
FLEX Elektrowerkzeuge GmbH Germany
WTM, Inc. Minnesota
Pentair Canada Canada
Essef Corporation Ohio
Falcon Manufacturing, Inc. Delaware
DeVilbiss Air Power Company Delaware
Pac-Fab, Inc. Delaware
Structural Europe NV Belgium
EXHIBIT 4.1
PENTAIR, INC.
$250,000,000 7.85% Senior Notes due 2009
Officers' Certificate and Company Order
Pursuant to the Indenture dated as of June 1, 1999
(the "Indenture"), between Pentair, Inc., a Minnesota
corporation (the "Company"), and U.S. Bank National
Association, as Trustee (the "Trustee") and resolutions
adopted by the Company's Board of Directors on June 2,
1999, June 23, 1999 and August 25, 1999, this Officers'
Certificate and Company Order is being delivered to the
Trustee to establish the terms of a series of
Securities in accordance with Section 301 of the
Indenture, to establish the form of the Securities of
such series in accordance with Section 201 of the
Indenture, to request the authentication and delivery
of the Securities of such series pursuant to Section
303 of the Indenture and to comply with the provisions
of Section 102 of the Indenture. This Officers'
Certificate shall be treated for all purposes under the
Indenture as a supplemental indenture thereto.
All conditions precedent provided for in the
Indenture relating to the establishment of (i) a series
of Securities and (ii) the form of Securities of such
series have been complied with.
Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them
in the Indenture.
A. Establishment of a series of Securities
pursuant to Section 301 of the Indenture.
There is hereby established pursuant to Section
301 of the Indenture a series of Securities which shall
have the following terms:
(1) The Securities shall bear the title
"7.85% Senior Notes due 2009."
(2) The aggregate principal amount of the
series of Securities to be issued pursuant to this
Officers' Certificate and Company Order shall be
limited to $250,000,000 (except for Securities
authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305,
306 and 907 of the Indenture and except for any
Securities which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated
and delivered thereunder).
(3) Interest will be payable to the Person
in whose name a Security (or any Predecessor Security)
is registered at the close of business on the Regular
Record Date (as defined below) next preceding each
Interest Payment Date (as defined below); provided,
however, that interest payable on the date of Maturity
of the Securities of such series shall be payable to
the Person to whom principal shall be payable. If any
Interest Payment Date or date of Maturity of the
Securities falls on a day which is not a Business Day
(as defined below), the related payment of principal or
interest shall be made on the next succeeding Business
Day with the same force and effect as if made on the
date such payment was due, and no interest shall accrue
on the amount so payable for the period from and after
such Interest Payment Date or date of Maturity, as the
case may be. "Business Day" shall mean any day that is
not a Saturday or Sunday and that, in the City of New
York, is not a day on which banking institutions are
generally authorized or obligated by law to close.
(4) The date on which the principal of the
Securities is due and payable shall be October 15,
2009.
(5) The Securities shall bear interest at
the rate of 7.85% per annum (based upon a 360-day year
of twelve 30-day months), from October 5, 1999 or from
the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be,
payable semi-annually on April 15 and October 15 in
each year, commencing April 15, 2000, until the
principal thereof is paid or made available for
payment. Each such April 15 and October 15 shall be an
"Interest Payment Date" for the Securities, and each
April 1 and October 1 (whether or not a Business Day),
as the case may be, next preceding an Interest Payment
Date for the Securities shall be the "Regular Record
Date" for the interest payable on such Interest Payment
Date.
(6) Principal of (and premium, if any) and
interest on the Securities will be payable, and, except
as provided in Section 305 of the Indenture with
respect to a Global Security, the transfer of the
Securities will be registrable and Securities will be
exchangeable for Securities bearing identical terms and
provisions at the corporate trust office of U.S. Bank
Trust National Association, in The City of New York,
New York, provided, however, that payment of principal
or interest may be made at the option of the Company by
check mailed to the Person entitled thereto as shown on
the Security Register.
(7) The Securities will be redeemable, in
whole or in part, at the Company's option, at any time,
at a redemption price equal to the greater of: (i)
100% of the principal amount of the Securities to be
redeemed, or (ii) as determined by the Quotation Agent
(as defined below), the sum of the present values of
the remaining scheduled payments of principal and
interest thereon (not including any portion of such
payments of interest accrued as of the date of
redemption) discounted to the redemption date on a semi-
annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate (as
defined below) plus 25 basis points, plus, in each
case, accrued interest thereon to the redemption date.
For this purpose, the following terms have the
following meanings:
$ "Adjusted Treasury Rate" means, with
respect to any redemption date, the rate
per annum equal to the semi-annual
equivalent yield to maturity of the
Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue
(expressed as a percentage of its
principal amount) equal to the
Comparable Treasury Price for such
redemption date.
$ "Comparable Treasury Issue" means, the
United States Treasury security selected
by a Quotation Agent as having a
maturity comparable to the remaining
term of the Securities to be redeemed
that would be utilized, at the time of
selection and in accordance with
customary financial practice, in pricing
new issues of corporate debt securities
of comparable maturity to the remaining
term of the Securities.
$ "Comparable Treasury Price" means, with
respect to any redemption date: (i) the
average of the Reference Treasury Dealer
Quotations for such redemption date,
after excluding the highest and lowest
such Reference Treasury Dealer
Quotations, or (ii) if the Trustee
obtains fewer than three such Reference
Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer
Quotations.
$ "Quotation Agent" means the Reference
Treasury Dealer appointed by the Trustee
after consultation with the Company.
$ "Reference Treasury Dealer" means: (i)
Goldman, Sachs & Co. and its respective
successors; provided, however, that if
the foregoing shall cease to be a
primary U.S. Government securities
dealer in New York City (a "Primary
Treasury Dealer"), the Company shall
substitute therefor another Primary
Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the
Trustee after consultation with the
Company.
$ "Reference Treasury Dealer Quotations"
means, with respect to each Reference
Treasury Dealer and any redemption date,
the average, as determined by the
Trustee, of the bid and asked prices for
the Comparable Treasury Issue
(expressed, in each case, as a
percentage of its principal amount)
quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such
redemption date.
A notice of redemption will be mailed at
least 30 days but not more than 60 days before the
redemption date to each Holder of the Securities to be
redeemed, at each such Holder's address appearing in
the Security Registrar.
Unless the Company defaults in payment of the
redemption price, on and after the redemption date,
interest will cease to accrue on the Securities or
portions thereof called for redemption.
(8) The Company shall not be obligated to
redeem or purchase any Securities pursuant to any
sinking fund or analogous provisions or at the option
of the Holder.
(9) The Securities will be issued only in
denominations of $1,000 and any integral multiple of
$1,000 in excess thereof.
(10) Payments of principal of (and premium,
if any) and interest on the Securities shall be payable
in the currency of the United States of America.
(11) The Securities shall be subject to the
Events of Default specified in Section 501, paragraphs
(1) through (7), of the Indenture.
(12) The Securities shall be subject to the
covenants and definitions set forth in the Indenture
and on Exhibit A attached hereto.
(13) The portion of the principal amount of
the Securities which shall be payable upon declaration
of acceleration of Maturity thereof shall not be less
than the principal amount thereof.
(14) The amount of payments of principal (and
premium, if any) or interest on the Securities will not
be determined with reference to an index.
(15)(a) The Securities will
be deposited with, or on behalf of, The Depository
Trust Company, New York, New York, as Depositary, and
will be represented by a global security (a "Global
Security") registered in the name of a nominee of the
Depositary. So long as the Depositary or its nominee
is the registered holder of any Global Security, the
Depositary or its nominee, as the case may be, will be
considered the sole Holder of the Securities
represented by such Global Security for all purposes
under the Indenture and the Securities.
(b) Other than as set forth in Section 305
of the Indenture, the Securities shall not be
exchangeable for any other securities or transferrable
to a Person other than the Depository or its nominee.
(16)(a) The Securities shall
be denominated, and payments of principal of (and
premium, if any) and interest on the Securities of such
series will be made, in United States dollars.
(b) The defeasance provisions set forth in
Sections 403 of the Indenture shall apply to the
Securities.
(17) The Securities shall have such other
terms and provisions as are provided in the form
thereof set forth in Exhibit B hereto.
B. Establishment of Forms of Securities Pursuant
to Section 201 of Indenture.
It is hereby established pursuant to Section 201
of the Indenture that the Global Security representing
the Securities shall be substantially in the form
attached as Exhibit B hereto.
C. Order for the Authentication and Delivery of
Securities Pursuant to Section 303 of the Indenture.
It is hereby ordered pursuant to Section 303 of
the Indenture that the Trustee authenticate, in the
manner provided by the Indenture, the Securities in the
aggregate principal amount of $250,000,000 registered
in the name of Cede & Co., which Securities have been
heretofore duly executed by the proper officers of the
Company and delivered to you as provided in the
Indenture, and to deliver said authenticated Securities
to or on behalf of The Depository Trust Company on or
before 9:30 a.m., Eastern Standard Time, on October 5,
1999.
.
D. Other Matters.
Attached as Exhibit C hereto are true and correct
copies of resolutions adopted by the Board of Directors
of the Company at meetings on June 2, 1999, June 23,
1999 and August 25, 1999; such resolutions have not
been further amended, modified or rescinded and remain
in full force and effect; and such resolutions are the
only resolutions or other action adopted by the
Company's Board of Directors or any committee thereof
relating to the offering and sale of the Securities.
The undersigned Executive Vice President and Chief
Financial Officer and Senior Vice President and General
Counsel, respectively, being "designated officers" as
defined in the resolutions of the Board of Directors of
the Company adopted at a meeting on August 25, 1999,
each certifies that he has approved the terms of the
Securities as set forth in this Officers' Certificate
and Company Order, all in accordance with the authority
of such officer pursuant to such resolutions.
The undersigned have read Sections 102, 201, 301
and 303 of the Indenture including the related
definitions contained therein. The undersigned have
examined the resolutions adopted by the Board of
Directors of the Company referred to above. In the
opinion of the undersigned, the undersigned have made
such examination or investigation referred to above as
is necessary to enable the undersigned to express an
informed opinion as to whether or not the conditions
precedent to the (i) establishment of the series of
Securities, (ii) establishment of the form of such
series of Securities and (iii) authentication and
delivery of such series of Securities, contained in the
Indenture have been complied with. In the opinion of
the undersigned, such conditions have been complied
with.
IN WITNESS WHEREOF, the undersigned have executed
this Certificate this 5th day of October, 1999.
_________________________
Richard W. Ingman,
Executive Vice President,
and Chief Financial
Officer
Louis L. Ainsworth,
Senior Vice President and
General Counsel
EXHIBIT A
ADDITIONAL DEFINITIONS AND COVENANTS
A. ADDITIONAL DEFINITIONS:
"Consolidated Shareholders Equity" means the
consolidated shareholders' equity as shown on the
Company's most recent reported consolidated balance
sheet and computed in accordance with generally
accepted accounting principles.
The number "$10,000,000" is hereby inserted in the
blank in the definition of "Principal Property."
B. ADDITIONAL COVENANTS:
For purposes of the series of Securities
established by this Officers' Certificate and Company
Order, Sections 1007 and 1008 of the Indenture shall be
replaced in their entirety by the following:
SECTION 1007. Restriction on Secured Debt.
(a) The Company will not itself, and will not permit
any Restricted Subsidiary to, incur, issue, assume or
guarantee any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed (notes,
bonds, debentures or other similar evidences of
indebtedness for money borrowed being hereinafter in
this Article called "Debt"), secured by pledge of, or
mortgage or other lien on, any Principal Property, now
owned or hereafter owned by the Company or any
Restricted Subsidiary, or any shares of stock or Debt
of any Restricted Subsidiary held by or owed to the
Company (any such pledges, mortgages and other liens
being hereinafter in this Article called "Lien" or
"Liens"), without effectively providing that the
Securities of each series then Outstanding (together
with, if the Company shall so determine, any other Debt
of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate
to the Securities of each series then Outstanding)
shall be secured equally and ratably with (or prior to)
such secured Debt, so long as such secured Debt shall
be so secured; provided, however, that this Section
shall not apply to, and there shall be excluded from
secured Debt in any computation under this Section,
Debt secured by:
(1) Liens existing on the date of this
Indenture;
(2) Liens on any Principal Property
acquired, constructed or improved by the Company
or any Restricted Subsidiary after the date of
this Indenture which are created or assumed
contemporaneously with such acquisition,
construction or improvement, or within 120 days
before or after the completion thereof, to secure
or provide for the payment of all or any part of
the cost of such acquisition, construction or
improvement (including related expenditures
capitalized for Federal income tax purposes in
connection therewith) incurred after the date of
the Indenture;
(3) Liens of or upon any property, shares of
capital stock or Debt existing at the time of
acquisition thereof, whether by merger,
consolidation, purchase, lease or otherwise
(including Liens of or upon property, shares of
capital stock or indebtedness of a corporation
existing at the time such corporation becomes a
Restricted Subsidiary);
(4) Liens in favor of the Company or any
Restricted Subsidiary;
(5) Liens in favor of the United States of
America or any State thereof, or any department,
agency or instrumentality or political subdivision
of the United States of America or any State
thereof or political entity affiliated therewith,
or in favor of any other country, or any political
subdivision thereof, to secure partial, progress,
advance or other payments, or other obligations,
pursuant to any contract or statute or to secure
any Debt incurred for the purpose of financing all
or any part of the cost of acquiring, constructing
or improving the property subject to such Liens
(including Liens incurred in connection with
pollution control, industrial revenue or similar
financings);
(6) Liens imposed by law, such as
mechanics', workmen's, repairmen's, materialmen's,
carriers', warehousemen's, vendors' or other
similar liens arising in the ordinary course of
business, or governmental (federal, state or
municipal) liens arising out of contracts for the
sale of products or services by the Company or any
Restricted Subsidiary, or deposits or pledges to
obtain the release of any of the foregoing;
(7) pledges or deposits under workmen's
compensation laws or similar legislation and Liens
of judgments thereunder which are not currently
dischargeable, or good faith deposits in
connection with bids, tenders, contracts (other
than for the payment of money) or leases to which
the Company or any Restricted Subsidiary is a
party, or deposits to secure public or statutory
obligations of the Company or any Restricted
Subsidiary, or deposits in connection with
obtaining or maintaining self-insurance or to
obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance,
old age pensions, social security or similar
matters, or deposits of cash or obligations of the
United States of America to secure surety, appeal
or customs bonds to which the Company or any
Restricted Subsidiary is a party, or deposits in
litigation or other proceedings such as, but not
limited to, interpleader proceedings;
(8) Liens created by or resulting from any
litigation or other proceeding which is being
contested in good faith by appropriate
proceedings, including Liens arising out of
judgments or awards against the Company or any
Restricted Subsidiary with respect to which the
Company or such Restricted Subsidiary is in good
faith prosecuting an appeal or proceedings for
review; or Liens incurred by the Company or any
Restricted Subsidiary for the purpose of obtaining
a stay or discharge in the course of any
litigation or other proceeding to which the
Company or such Restricted Subsidiary is a party;
(9) Liens for taxes or assessments or
governmental charges or levies not yet due or
delinquent, or which can thereafter be paid
without penalty, or which are being contested in
good faith by appropriate proceedings;
(10) Liens consisting of easements, rights-of-
way, zoning restrictions, restrictions on the use
of real property, and defects and irregularities
in the title thereto, landlords' liens and other
similar liens and encumbrances which, other than
liens resulting from action of any governmental
authority, do not interfere materially with the
use of the property covered thereby in the
ordinary course of the business of the Company or
such Restricted Subsidiary and do not, in the
opinion of the Company, materially detract from
the value of such properties; or
(11) any extension, renewal or replacement
(or successive extensions, renewals or
replacements), as a whole or in part, of any Lien
referred to in the foregoing clauses (1) to (10),
inclusive; provided, that (i) such extension,
renewal or replacement Lien shall be limited to
all or a part of the same property, shares of
stock or Debt that secured the Lien extended,
renewed or replaced (plus improvements on such
property) and (ii) the Debt secured by such Lien
at such time is not increased.
(b) Notwithstanding the restrictions contained in
subdivision (a) of this Section, the Company and its
Restricted Subsidiaries, or any of them, may incur,
issue, assume or guarantee Debt secured by Liens
without equally and ratably securing the Securities of
each series then Outstanding, provided, that at the
time of such incurrence, issuance, assumption or
guarantee, after giving effect thereto and to the
retirement of any Debt which is concurrently being
retired, the aggregate amount of all outstanding Debt
secured by Liens which could not have been incurred,
issued, assumed or guaranteed by the Company or a
Restricted Subsidiary without equally and ratably
securing the Securities of each series then Outstanding
except for the provisions of this subdivision (b),
together with the aggregate amount of all Attributable
Debt incurred pursuant to Section 1008(b), does not at
such time exceed 7.5% of Consolidated Shareholders'
Equity.
SECTION 1008. Restriction on Sale and Leaseback
Transactions.
(a) The Company will not itself, and it will not
permit any Restricted Subsidiary to, enter into any
arrangement with any bank, insurance company or other
lender or investor (not including the Company or any
Subsidiary) or to which any such lender or investor is
a party, providing for the leasing by the Company or a
Restricted Subsidiary for a period, including renewals,
in excess of three years of any Principal Property
which has been or is to be sold or transferred by the
Company or any Restricted Subsidiary to such lender or
investor or to any person to whom funds have been or
are to be advanced by such lender or investor on the
security of such Principal Property (herein referred to
as a "Sale and Leaseback Transaction") unless either:
(1) the Company or such Restricted
Subsidiary would, at the time of entering into
such arrangement, be entitled, without equally and
ratably securing the Securities of each series
then Outstanding, to incur Debt secured by a Lien
on such property, pursuant to paragraphs (1) to
(11), inclusive, of Section 1007; or
(2) the Company within 120 days after the
sale or transfer shall have been made by the
Company or by a Restricted Subsidiary, applies an
amount equal to the greater of (i) the net
proceeds of the sale of the Principal Property
sold and leased back pursuant to such arrangement
or (ii) the fair market value of the Principal
Property so sold and leased back at the time of
entering into such arrangement (as determined by
any two of the following: the Chairman or a Vice
Chairman of the Board of the Company, its
President, its Chief Financial Officer, its Vice
President of Finance, its Treasurer or its
Controller) to the retirement of Funded Debt of
the Company; provided, that the amount to be
applied to the retirement of Funded Debt of the
Company shall be reduced by (A) the principal
amount of any Securities delivered within 120 days
after such sale to the Trustee for retirement and
cancellation, and (B) the principal amount of
Funded Debt, other than Securities, voluntarily
retired by the Company within 120 days after such
sale. Notwithstanding the foregoing, no
retirement referred to in this clause (a)(2) may
be effected by payment at Maturity or pursuant to
any mandatory sinking fund payment or mandatory
prepayment provision.
(b) Notwithstanding the restrictions contained in
subdivision (a) of this Section, the Company and its
Restricted Subsidiaries, or any of them, may enter into
a Sale and Leaseback Transaction, provided, that at the
time of such transaction, after giving effect thereto,
the aggregate amount of all Attributable Debt in
respect of Sale and Leaseback Transactions existing at
such time which could not have been entered into except
for the provisions of this subdivision (b), together
with the aggregate amount of all outstanding Debt
incurred pursuant to Section 1007(b), does not at such
time exceed 7.5% of Consolidated Shareholders' Equity.
(c) A Sale and Leaseback Transaction shall not be
deemed to result in the creation of a Lien.
EXHIBIT B
FORM OF GLOBAL SECURITY
EXHIBIT C
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS
RESOLUTIONS ADOPTED JUNE 2, 1999
WHEREAS, as a result of two prospective
acquisitions which are contemplated to occur in the
third quarter of 1999, Essef Corporation and DeVilbiss
Air Power Company, or additional acquisitions which
might be undertaken by Pentair in the next two years
(together, the "Acquisitions"), Pentair will require
additional debt and equity capital;
WHEREAS, Pentair management has advised the Board
of Directors that a public offering, through the filing
of a shelf registration statement on Form S-3, of up to
$700,000,000 of its Common Stock, par value $.16 2/3
per share (the "Shares") and debt securities (the "Debt
Securities") of the Company (the Shares and Debt
Securities together referred to as the "Securities") in
order to finance or refinance the Acquisitions would be
in the Company's best interests;
WHEREAS, the Company intends to retain Goldman
Sachs & Co. and J.P. Morgan & Co. as lead underwriters
in connection with the issuance and sale of the
Securities ( the "Underwriters") on terms and
conditions to be determined at the time of each
offering of Securities; and
WHEREAS, the Board of Directors believes that the
proposed public offering of Securities by the Company
is appropriate for Pentair's financial needs arising
out of the Acquisitions and would be in the best
interests of itself and its shareholders;
NOW, THEREFORE, BE IT HEREBY
RESOLVED, that the Company is hereby authorized to
issue at one time or from time to time within the next
two years up to an aggregate amount of $700,000,000 of
Securities (the "Maximum Aggregate Offering Amount"),
including, without limitation, up to 10,000,000 Shares
and up to $500,000,000 in original principal amount of
Debt Securities; and be it
RESOLVED, that Pentair officers authorized to act
for the Company in connection with the transactions
contemplated in this resolution ("designated officers")
shall be any one or more of the following:
Winslow H. Buxton Chairman/Chief Executive Officer
Joseph R. Collins Vice Chairman
Richard W. Ingman Executive Vice
President/Chief
Financial Officer
Louis L. Ainsworth Senior Vice
President/General
Counsel
and be it further
RESOLVED, that the Company, through the designated
officers, is hereby authorized and empowered to perform
all acts necessary or appropriate for the preparation
and filing by the Company of a shelf Registration
Statement on Form S-3 (the "Registration Statement")
for the registration of the Securities to be filed with
the Securities and Exchange Commission (the
"Commission") on behalf of the Company after the
designated officers have approved the Registration
Statement in substantially its final form, the
execution and delivery thereof by any of such officers
on behalf of the Company constituting conclusive
evidence of such approval; and be it further
RESOLVED, that the amount and terms of the
Securities to be issued from time to time under the
Registration Statement (up to the Aggregate Maximum
Offering Amount) shall be those approved by the
designated officers, following consultation with the
members of the Finance and Investment Policy Committee
of the Board of Directors (the "Committee"), as set
forth in one or more Prospectus Supplements applicable
to the Securities being offered, the filing of such
Supplement with the Securities and Exchange Commission
constituting conclusive evidence of such approval; and
be it further
RESOLVED, that Louis L. Ainsworth is hereby
designated as agent for service on the Company with
respect to the Registration Statement with the powers
conferred upon such person by the Act and the rules and
regulations of the Commission issued thereunder; and be
it further
RESOLVED, that the designated officers are hereby
authorized and directed to prepare, execute, and file
with the Commission in the name of and on behalf of the
Company such amendment or amendments to the
Registration Statement, including post-effective
amendments, and supplements to the prospectus contained
in the Registration Statement, as may, in their
opinion, be necessary or advisable in connection with
the transactions contemplated in these resolutions and
the Registration Statement, and also to prepare,
execute, and deliver to or file with the Commission,
the National Association of Securities Dealers, Inc.,
the New York Stock Exchange, state securities
commissions, the underwriters, or any other agency or
persons connected with such transactions, in the name
of and on behalf of the Company, such certificates,
documents, letters, undertakings, or other instruments
as they or counsel for the Company deem necessary or
advisable in connection with the consummation of such
transactions; and be it further
RESOLVED, that the designated officers, in
consultation with the Committee, are authorized and
empowered to negotiate with the representatives of the
Underwriters the form, terms, and conditions of
underwriting agreement(s) providing for the purchase
and sale of Securities by the Underwriters and are
authorized to execute and deliver the underwriting
agreement(s) with such changes as they, in their
discretion, deem necessary and to execute and deliver
the final form of the underwriting agreement(s) in the
name of and on behalf of the Company, including the
determination of the number of Shares or the face
amount of the Debt Securities to be issued, the public
offering price, and the underwriting discount for the
proposed public offering, and to execute such other
documents or instruments and to take such other and
further action as may be deemed necessary or desirable
to carry out the Company's obligations thereunder, with
the execution and delivery of the underwriting
agreement and any other memoranda fixing the price by
any of the designated officers constituting conclusive
evidence of approval of the final form of the
underwriting agreement, which shall be binding on the
Company; and be it further
RESOLVED, that the designated officers are hereby
authorized to cause to be issued the number of shares
of Common Stock or face amount of Debt Securities to be
sold by the Company, pursuant to the provisions of the
underwriting agreement(s) upon receipt of the
consideration set forth in the underwriting
agreement(s), as executed, and the Shares are hereby
declared to be duly authorized, validly issued, fully
paid, and nonassessable; and be it further
RESOLVED, that the designated officers be and
they hereby are authorized to enter into one or more
Indentures with such trustee as such officers may
approve, with respect to the issuance of Debt
Securities;
RESOLVED, that Norwest Bank Minnesota N.A.
("Norwest"), of Minneapolis, Minnesota, shall continue
as Transfer Agent, Registrar, and Dividend Disbursing
Agent for Company's Common Stock, including the Shares,
and the designated officers are directed to so inform
Norwest and to execute any agreements or other
instruments that may be required in connection
therewith; and be it further
RESOLVED, that upon the written direction of the
designated officers, Norwest is authorized to record,
countersign, and register certificates representing the
shares of Common Stock that may be sold in the public
offering by the Company,, and to deliver the
certificates to or upon the order of any of said
officers directing their issuance; and be it further
RESOLVED, that the designated officers are hereby
authorized to make such applications and file such
documents and pay such fees as are necessary to
accomplish the listing of the Shares on the New York
Stock Exchange; and be it further
RESOLVED, that since it is desirable and in the
best interests of the Company that its securities be
qualified or registered for sale in various states, the
designated officers are hereby authorized to determine
the states in which appropriate action shall be taken
to qualify or register for sale all or such part of the
securities of this Company as said officers may deem
advisable; and be it further
RESOLVED, that the designated officers are hereby
authorized to perform on behalf of the Company any and
all such acts as they may deem necessary or advisable
in order to comply with the applicable laws of any such
states and in connection therewith to execute and file
all requisite papers and documents, including, but not
limited to, applications, reports, surety bonds,
irrevocable consents, and appointments of attorney for
service of process, with the execution by any of said
officers of any such paper or document or the doing by
them of any acts in connection with the foregoing
matters conclusively establishing their authority
therefor from the Company and the approval and
ratification by the Company of the papers and documents
so executed and the actions so taken; and be it further
RESOLVED, that in connection with the
qualification for registration of the Company's
securities for sale in various states as set forth in
the foregoing resolution, the Company shall not be
required in any state to file a general consent to
service of process, to qualify as a foreign
corporation, or to register as a dealer in securities
(except in such cases as said officers may deem to be
in the best interests of the Company); and be it
further
RESOLVED, that the designated officers are hereby
authorized to take such actions in addition to those
set forth in the foregoing resolutions as they consider
appropriate for the purpose of accomplishing the
registration and sale of the Securities as described
herein.
RESOLUTIONS ADOPTED JUNE 23, 1999
WHEREAS, on June 7, 1999, the Company filed of a
shelf registration statement on Form S-3 (the
"Registration Statement") with the Securities and
Exchange Commission covering the issuance and sale of
up to $700,000,000 in debt and equity securities of the
Company (the "Securities"), previously authorized by
the Company's Board of Directors; and
WHEREAS, the Board of Directors continues to
believe that the proposed public offering of Securities
by the Company is appropriate for the Company's
financial needs and would be in the best interests of
the Company and its shareholders;
NOW, THEREFORE, BE IT RESOLVED, that the filing,
form and contents of the Registration Statement
(including, without limitation, the prospectus filed as
part of the Registration Statement and the exhibits to
the Registration Statement) is hereby ratified and
approved.
RESOLUTIONS ADOPTED AUGUST 25, 1999
WHEREAS, on June 2, 1999, the Board of Directors
authorized the Company to file a shelf registration
statement on Form S-3 and to take various actions with
respect thereto; and
WHEREAS, on June 7, 1999, the Company filed a
shelf registration statement on Form S-3 (the
"Registration Statement") with the Securities and
Exchange Commission covering the issuance and sale of
up to $700,000,000 in debt and equity securities of the
Company (the "Securities"), previously authorized by
the Board of Directors; and
WHEREAS, on July 16, 1999, the Company filed
Amendment No. 1 to the Registration Statement
("Amendment No. 1 to the Registration Statement") with
the Securities and Exchange Commission;
WHEREAS, on August 4, 1999, the Company filed
Amendment No. 2 to the Registration Statement
("Amendment No. 2 to the Registration Statement") with
the Securities and Exchange Commission; and
WHEREAS, the terms defined in the resolutions
adopted by the Board of Directors on June 2, 1999
relating to the issuance of securities and the filing
of the shelf registration statement (the "Resolutions")
and not otherwise defined in these resolutions shall
have the same meaning as set forth in the Resolutions;
NOW, THEREFORE, BE IT HEREBY
RESOLVED, that the following officers, and each of
the, are authorized to act for the Company in
connection with the transactions contemplated in these
resolutions ("designated officers"):
Winslow H. Buxton Chairman of the
Board; Chief
Executive Officer;
President
Joseph R. Collins Vice Chairman
Richard W. Ingman Executive Vice
President; Chief
Financial Officer
Louis L. Ainsworth Senior Vice
President, General Counsel
and be it further
RESOLVED, that the filing, form and contents of
Amendment No. 1 to the Registration Statement and
Amendment No. 2 to the Registration Statement
(including, without limitation, the prospectus filed as
part of Amendment No. 1 and Amendment No. 2 to the
Registration Statement and the exhibits thereto) are
hereby ratified, confirmed and approved; and be it
further
RESOLVED, that the designated officers, in
consultation with the Committee are authorized and
empowered to negotiate with the Underwriters the form,
terms and conditions of underwriting agreement(s) and
pricing agreement(s) providing for the purchase and
sale of Securities by the Underwriters, and any other
underwriters named therein, and are authorized to
execute and deliver the underwriting agreement(s) and
pricing agreement(s) with such changes as they, in
their discretion, deem necessary and to execute and
deliver the final form of the underwriting agreement(s)
and pricing agreement(s) in the name of and on behalf
of the Company, including the determination of the
number of Shares or the face amount of the Debt
Securities to be issued, the public offering price, and
the underwriting discount for the purposed public
offering, and to execute such other documents or
instruments and to take such other and further action
as may be deemed necessary or desirable to carry out
the Company's obligations thereunder, with the
execution and delivery of each underwriting agreement
and pricing agreement by any of the designated officers
constituting conclusive evidence of approval of the
final form, terms and conditions thereof, which shall
be binding on the Company; and be it further
RESOLVED, that the designated officers are hereby
authorized to cause to be issued the number of Shares
or face amount of Debt Securities to be sold by the
Company, pursuant to the provisions of the underwriting
agreement relating thereto, and upon receipt of the
consideration set forth in the underwriting agreement
relating thereto, as executed, the Shares so issued
pursuant to such underwriting agreement are hereby
declared to be duly authorized, validly issued, fully
paid, and nonassessable; and be it further
RESOLVED, that the designated officers be and they
hereby are authorized to negotiate one or more
Indentures with respect to the issuance of Debt
Securities and supplements thereto and officers
certificates thereunder in such form and with such
terms and conditions and with such trustee(s) as such
officers may approve, and to execute and deliver the
Indenture(s), supplement(s) and certificate(s) in the
name and on behalf of the Company, with the execution
and delivery of each Indenture, supplement or
certificate constituting conclusive evidence of
approval of the final form, terms and conditions
thereof, which shall be binding on the Company; and be
it further
RESOLVED, that the designated officers are hereby
authorized and empowered to take all action as may be
necessary or advisable in order to qualify each
Indenture or supplement thereto under the Trust
Indenture Act of 1939, as amended, and otherwise comply
with such Act and the rules and regulations of the
Commission thereunder; and be it further
RESOLVED, that the form(s) of Debt Securities set
forth in the applicable Indenture, supplement or
certificate as executed, and with such insertions,
omissions, substitutions and other variations as are
appropriate to reflect the specific terms of such Debt
Securities, are approved to represent the Debt
Securities, and the designated officers are hereby
authorized to execute, seal, attest and deliver, in the
name and on behalf of the Company, the Debt Securities
substantially in such form, and upon authorization and
delivery by the trustee under the applicable Indenture
such signatures will be fully binding on the Company
whether or not any such officer shall have ceased to be
such an officer before the Debt Securities shall be so
authenticated and delivered by such trustee.
RESOLVED, that except as amended by the foregoing
resolutions, the Resolutions are hereby ratified and
confirmed in all respects.
The following is an excerpt of the minutes of the
executive session of the Board of Directors at the
August 25, 1999 meeting:
The Board then discussed the proposed public
offerings of common stock and senior notes
under the Registration Statement on Form S-3
filed on June 7, 1999, and amendments
thereto, and appointed Charles Haggerty
(member of the Finance and Investment Policy
Committee) as pricing consultant having full
authority on behalf of the Finance and
Investment Policy Committee to consult with
the officers designated by the Board as to
the final form, terms and conditions of the
underwriting agreements and pricing
agreements and the amount and terms of the
securities to be offered.
EXHIBIT 4.2
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN
THE INDENTURE) OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR TO ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
PENTAIR, INC.
_____% Senior Notes due ____
No. R- $ __________
CUSIP NO.
____________
Pentair, Inc., a corporation duly organized and
existing under the laws of Minnesota (herein called the
"company", which term includes any successor Person
under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _____________
Dollars ($_______) on _______, 20__, and to pay
interest thereon from ______________or from the most
recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually in arrears on
_______ and ________ in each year, commencing
______________, at the rate of _____% per annum, until
the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest,
which shall be the ________ or ____________ (whether or
not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in
whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof
shall be given to holders of Notes of this series not
less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Notes of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any)
and interest on this Note will be made to the Depositary
or its nominee, as the case may be, as the sole registered
owner and the sole Holder of the Global Security for all
purposes under the Indenture, in such coin or currency of the
United States of America as at the time of payment is
legal tender for payment of public and private debts.
The Notes of this series are subject to redemption
prior to the Stated Maturity as described below.
Reference is hereby made to the further provisions
of this Note set forth below, which further provisions
shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon
has been executed by or on behalf of the Trustee
referred to below by manual signature, this Note shall
not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
Dated:
PENTAIR, INC.
By:
Name:
Title:
Attest:
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated therein and issued
pursuant to the within-mentioned
Indenture.
Dated:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
Pentair, Inc.
______% Senior Notes due _____
This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"),
issued and to be issued in one or more series under an
Indenture, dated as of June 1, 1999 (herein called the
"Indenture"), between the Company and U.S. Bank Trust
National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby
made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the
Notes and of the terms upon which the Notes are, and
are to be, authenticated and delivered. This Note is
one of the series designated above, limited in
aggregate principal amount to $___________. By the
terms of the Indenture, additional Securities of other
separate series, which may vary as to date, amount,
Stated Maturity, interest rate or method of calculating
the interest rate and in other respects as therein
provided, may be issued in an unlimited principal
amount.
This Note is redeemable, in whole or in part, at the
Company's option, at any time at a redemption price
equal to the greater of:
C 100% of the principal amount of this Note; or
C as determined by a Quotation Agent (as defined
below), the sum of the present values of the remaining
scheduled payments of principal and interest hereon
(not including any portion of such payments of interest
accrued as of the date of redemption) discounted to the
redemption date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate plus 25 basis points, plus, in
each case, accrued interest hereon to the date of
redemption.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury
Price for such redemption date.
"Comparable Treasury Issue" means the United States
Treasury security selected by a Quotation Agent as
having a maturity comparable to the remaining term of
the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining
term of such Notes.
"Quotation Agent" means the Reference Treasury
Dealer appointed by the Trustee after consultation with
the Company.
"Reference Treasury Dealer" means:
C Goldman, Sachs & Co. and its respective
successors; provided, however, that if the foregoing
shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary
Treasury Dealer; and
C any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to
any redemption date:
C the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer
Quotations; or
C if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of
all such Quotations.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such redemption
date.
Notice of any redemption will be mailed at least 30
days but not more than 60 days before the redemption
date to each Holder of the Notes to be redeemed at each
such Holder's address appearing on the Security
Register.
Unless the Company defaults in payment of the
redemption price, on and after the redemption date,
interest will cease to accrue on the Notes or portions
thereof called for redemption.
In the event of redemption of this Note in part
only, a new Note or Notes of this series and of like
tenor or an authorized denomination for the unredeemed
portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof, and, in the event
of transfer or exchange, a new Note or Notes of this
series and of like tenor and for a like aggregate
principal amount will be issued to the Holder, in the
case of exchange, or the designated transferee or
transferees, in the case of transfer.
This Note is not entitled to the benefit of any
sinking fund.
If an Event of Default with respect to Notes of this
series shall occur and be continuing, the principal of
the Notes of this series may (subject to the conditions
set forth in the Indenture) be declared due and payable
in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at
any time of the Company's obligations in respect of (i)
the entire indebtedness of this Note or (ii) certain
restrictive covenants with respect to this Note, in
each case upon compliance with certain conditions set
forth therein.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at
any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the
time Outstanding of each series to be affected and, for
certain purposes, without the consent of the Holders of
any Securities at the time Outstanding. The Indenture
also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of
the Securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no
provision of this Note or of the Indenture shall alter
or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of
(and premium, if any) and interest on this Note at the
times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this
Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at
the office or agency of the Company in any place where
the principal of (and premium, if any) and interest on
this Note are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one
or more new Notes of this series, of like tenor and of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
The Notes of this series are issuable only in
registered form without coupons in denominations of
$1,000 and any amount in excess thereof which is an
integral multiple of $1,000. As provided in the
Indenture and subject to certain limitations therein
set forth, Notes of this series are exchangeable for a
like aggregate principal amount of Notes of this series
and of like tenor of a different authorized
denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the
Security Register as the owner hereof for all purposes,
whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in
the Indenture.
______________________
_________________________________
ABBREVIATIONS
The following abbreviations, when used in this
instrument, shall be construed as though they were
written out in full according to applicable laws or
regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN
ACT _______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
_______________________
(State)
Additional abbreviations may be used though not in the
above list.
_________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto _____
_______________________________________________________
___________
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE ___________________
(Name and address of assignee, including zip code,
must be printed or typewritten)
the within Note, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Note on the books of the
within Company, with full power of substitution in the
premises
Dated _______________
SIGNATURE GUARANTEE: Signatures must be guaranteed
by an "eligible institution" meeting the requirements
of the Security Registrar, which requirements include
membership or participation in the Security Transfer
Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
Board of Directors
September 29, 1999
EXHIBIT 5.1
[LETTERHEAD OF HENSON & EFRON, P.A.]
September 29, 1999
Board of Directors
Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113
Ladies and Gentlemen:
We are acting as counsel to Pentair, Inc., a Minnesota
corporation (the "Company"), in connection with its
registration statement on Form S-3, as amended and
supplemented (SEC File No. 333-80159) (the "Registration
Statement"), filed with the Securities and Exchange
Commission on June 7, 1999, as amended, relating to the
proposed public offering of up to $700,000,000 in aggregate
amount of one or more series of the Company's securities,
which securities may include any or all of the Company's
(i) shares of common stock, par value $.16 2/3 per share
including rights attached thereto to purchase shares of
Common Stock pursuant to the Rights Agreement dated as of
July 31, 1995 (collectively the "Common Stock"); or (ii)
debt securities (the "Debt Securities"), all of which Common
Stock and Debt Securities may be offered and sold from time
to time on a continuous or delayed basis as set forth in the
prospectus which forms a part of the Registration Statement
(the "Prospectus"), and as set forth in one or more
supplements to the Prospectus (each, a "Prospectus
Supplement"). This opinion letter is rendered in connection
with the proposed public offering of up to 6,325,000 shares
of the Company's Common Stock (the "Shares") as described in
the Registration Statement. This opinion letter is
furnished to you at your request to enable you to fulfill
the requirements of Item 601(b)(5) of Regulation S-K, 17
C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined
copies of the following documents:
1. The Registration Statement;
2. The Amended and Restated Articles of Incorporation
of the Company (the "Articles of Incorporation")
as certified by the Secretary of State of the
State of Minnesota on July 15, 1999 and by the
Secretary of the Company on the date hereof as
then being complete, accurate and in effect;
3. The Amended and Restated Bylaws of the Company (the
"Bylaws"), as certified by the Secretary of the Company
on the date hereof as then being complete, accurate and
in effect;
4. The Underwriting Agreement dated September 29, 1999
(the "Underwriting Agreement") among the Company and
Goldman Sachs & Co., J.P. Morgan Securities, Inc. Banc
of America Securities, LLC and U.S. Bancorp Piper
Jaffray Inc., individually and as representatives of
the several underwriters named in Schedule I of the
related Pricing Agreement dated September 29, 1999;
5. Corporate proceedings of the Company relating to the
filing by the Company of the Registration Statement,
the execution of the Underwriting Agreement and related
matters; and
6. Such other documents and such mattes of law as we have
deemed necessary in order to render this opinion.
In our examination of the aforesaid documents, we have
assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity, accuracy and completeness of
all documents submitted to us, and the conformity with the
original documents of all documents submitted to us as certified,
telecopied, photostatic, or reproduced copies. In giving this
opinion, we also have relied as to certain matters on information
obtained from public officials, officers of the Company and other
sources we believe to be responsible. This opinion letter is
given, and all statements herein are made, in the context of the
foregoing.
Our opinions expressed below are limited to the laws of the
State of Minnesota and the State of New York and the federal laws
of the United States of America.
Based upon, subject to and limited by the foregoing, we are
of the opinion that, following (i) issuance of the Shares
pursuant to the terms of the Underwriting Agreement and (ii)
receipt by the Company of the consideration for the Shares
specified in the corporate proceedings relating to the Shares,
the Shares will be validly issued, fully paid and non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter.
This opinion letter has been prepared for your use in connection
with the filing of the Registration Statement on the date of this
opinion letter and should not be quoted in whole or in part or
otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior
written consent of this firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to
this firm under the caption "Legal Matters" in the prospectus
constituting a part of the Registration Statement. In giving
this consent, we do not thereby admit that we are an "expert"
within the meaning of the Securities Act.
Very truly yours,
HENSON & EFRON, P.A.
/s/ Henson & Efron, P.A.
Board of Directors
September 30, 1999
EXHIBIT 5.2
[LETTERHEAD OF HENSON & EFRON, P.A.]
September 30, 1999
Board of Directors
Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113
Ladies and Gentlemen:
We are acting as counsel to Pentair, Inc., a Minnesota
corporation (the "Company"), in connection with its
registration statement on Form S-3, as amended and
supplemented (SEC File No. 333-80159) (the "Registration
Statement"), filed with the Securities and Exchange
Commission on June 7, 1999 as amended, relating to the
proposed public offering of up to $700,000,000 in aggregate
amount of one or more series of the Company's securities,
which securities may include any or all of the Company's
(i) shares of common stock, par value $.16 2/3 per share
including rights attached thereto to purchase shares of
Common Stock pursuant to the Rights Agreement dated as of
July 31, 1995 (collectively the "Common Stock"); or (ii)
debt securities (the "Debt Securities"), all of which Common
Stock and Debt Securities may be offered and sold from time
to time on a continuous or delayed basis as set forth in the
prospectus which forms a part of the Registration Statement
(the "Prospectus"), and as set forth in one or more
supplements to the Prospectus (each, a "Prospectus
Supplement"). This opinion letter is rendered in connection
with the proposed public offering of $250,000,000 aggregate
principal amount of the Company's 7.85% Senior Notes due
2009 (the "Notes") as described in the Registration
Statement. This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item
601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration
Statement.
For purposes of this opinion letter, we have examined
copies of the following documents:
1. The Registration Statement;
2. The Amended and Restated Articles of Incorporation
of the Company (the "Articles of Incorporation")
as certified by the Secretary of State of the
State of Minnesota on July 15, 1999 and by the
Secretary of the Company on the date hereof as
then being complete, accurate and in effect;
3. The Amended and Restated Bylaws of the Company (the
"Bylaws"), as certified by the Secretary of the Company
on the date hereof as then being complete, accurate and
in effect;
4. The Indenture( the "Indenture") dated June 1, 1999
between the Company and U.S. Bank National Association,
as trustee (the "Trustee");
5. The Underwriting Agreement dated September 30,1999
among the Company and Goldman Sachs & Co., J.P. Morgan
Securities, Inc. and Banc One Capital Markets, Inc.,
(the "Underwriting Agreement");
6. Corporate proceedings of the Company relating to the
filing by the Company of the Registration Statement,
the execution of the Indenture, the form of Officers'
Certificate and Company Order relating to Debt
Securities dated as of October 5, 1999 and related
matters; and
7. Such other documents and such matters of law as we have
deemed necessary to render this opinion.
In our examination of the aforesaid documents, we have
assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity, accuracy and completeness of
all documents submitted to us, and the conformity with the
original documents of all documents submitted to us as certified,
telecopied, photostatic, or reproduced copies. In giving this
opinion, we also have relied as to certain matters on information
obtained from public officials, officers of the Company and other
sources we believe to be responsible. This opinion letter is
given, and all statements herein are made, in the context of the
foregoing.
Our opinions expressed below are limited to the laws of the
State of Minnesota and the State of New York and the federal laws
of the United States of America.
Based upon, subject to and limited by the foregoing, we are
of the opinion that, following (i) authentication of the Notes by
the Trustee, and (ii) execution and delivery of the Notes on
behalf of the Company against payment of consideration for the
Notes specified in the Company proceedings relating to the Notes,
the Notes 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, reorganization, moratorium or other laws
affecting creditors' rights (including, without limitation, the
effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfer and preferential transfers) and
as may be limited by the exercise of judicial discretion and the
application of principles of equity, including, without
limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether
enforcement is considered in a proceeding in equity or at law).
The opinions as to enforceability expressed above shall be
understood to mean only that if there is a default in
performance of an obligation, (i) if a failure to pay or other
damage can be shown and (ii) if the defaulting party can be
brought into a court which will hear the case and apply the
governing law, then, subject to the availability of defenses, and
to the exceptions set forth above, the court will provide a money
damage (or perhaps injunctive or specific performance) remedy.
To the extent that the obligations of the Company under any
Indenture may be dependent upon such matters, we assume for
purposes of this opinion that the Trustee is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization; that the Trustee is duly qualified
to engage in the activities contemplated by the Indenture; that
the Indenture has been duly authorized, executed and delivered by
the Trustee and constitutes the valid and binding obligation of
the Trustee enforceable against the Trustee in accordance with
its terms; that the Trustee is in compliance, with respect to
acting as a trustee under the Indenture, with all applicable laws
and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its
obligations under the Indenture.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter.
This opinion letter has been prepared for your use in connection
with the filing of the Registration Statement on the date of this
opinion letter and should not be quoted in whole or in part or
otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior
written consent of this firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to
this firm under the caption "Legal Matters" in the prospectus
constituting a part of the Registration Statement. In giving
this consent, we do not thereby admit that we are an "expert"
within the meaning of the Securities Act.
Very truly yours,
HENSON & EFRON, P.A.
/s/ Henson & Efron, P.A.
