IES UTILITIES INC.
UNDERWRITING AGREEMENT
March 6, 2001
IES Utilities Inc.
Alliant Energy Xxxxx
Xxxxx Xxxxxx, Xxxx 00000
1. Purchase and Sale. On the basis of the representations and
warranties, and subject to the terms and conditions set forth in this agreement
(this "Agreement"), the Underwriters (defined below) shall purchase from IES
Utilities Inc. (the "Company"), and the Company shall sell to the Underwriters,
severally and not jointly, the principal amount of the Company's 6 3/4% Series B
Senior Debentures due 2011, set forth opposite the name of the Underwriters in
Schedule I hereto at the price specified in Schedule II hereto (the aggregate
principal amount of the debentures described in Schedule II hereto are
hereinafter referred to as the "Debentures").
2. Underwriters. The term "Underwriters", as used herein, shall be
deemed to mean Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx Xxxxx") and the other
several persons, firms or corporations named in Schedule I hereto (including any
substituted Underwriters under the provisions of Section 10). All obligations of
the Underwriters hereunder are several and not joint. The term "Representative"
shall refer to Xxxx Xxxxx.
3. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (Registration
Statement No. 333-55906), including a prospectus, relating to
$200,000,000 principal amount of senior debentures, including the
Debentures. That registration statement, as so filed, has become
effective under the Securities Act of 1933, as amended (the
"Securities Act"), no stop order suspending the effectiveness of such
registration statement is in effect and no proceedings for such
purpose are pending before or threatened by the Commission. The term
"Registration Statement" means the registration statement in the form
in which it became effective, including the exhibits thereto, but
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Securities
Act and deemed by virtue of Rule 430A under the Securities Act to be
part of the registration statement at the time it was
declared effective. The term "Prospectus" means such final prospectus,
in the form first approved by the Representative for filing pursuant
to Rule 424(b) under the Securities Act. The term "preliminary
prospectus" means any preliminary prospectus included in the
registration statement as originally filed or filed with the
Commission pursuant to Rule 424(a). As used herein, the terms
"Prospectus" and "preliminary prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date hereof by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) No order directed to the adequacy of any document
incorporated by reference in any preliminary prospectus or the
Prospectus has been issued by the Commission and no proceedings for
such purpose are pending before or threatened by the Commission.
(c) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in any preliminary
prospectus or the Prospectus complied or will comply when so filed in
all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the
registration statement, as it became effective, and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply,
and the Registration Statement will comply, in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) neither any preliminary prospectus
nor the Prospectus contains, nor, as amended or supplemented, if
applicable, will contain, any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph do not apply (A) to statements or omissions in
the Registration Statement, any preliminary prospectus or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through Xxxx
Xxxxx or its counsel expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended
2
(the "Trust Indenture Act"), of Bank One Trust Company, National
Association (the "Trustee").
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of Iowa, has
the power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole. The Company possesses, and is in compliance with the terms
and conditions of, such certificates, authorizations, franchises or
permits issued by the appropriate state or federal regulatory
authorities or bodies as are necessary to conduct its business as
currently conducted, except where a failure to so comply would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; the Company has not received any notice of
proceedings relating to the revocation or material modification of any
such certificate, authorization, franchise or permit.
(e) Each subsidiary of the Company that constitutes a
"significant subsidiary" (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and collectively, "Subsidiaries")
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; all of the issued shares of capital stock of each
such subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims. Each such subsidiary possesses, and is in compliance with the
terms and conditions of, such material certificates, authorizations,
franchises or permits issued by the appropriate state or federal
regulatory authorities or bodies as are necessary to conduct its
business as currently conducted, except where a failure to so comply
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; no such subsidiary of the Company has
received any notice of proceedings
3
relating to the revocation or material modification of any such
certificate, authorization, franchise or permit.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture pursuant to which the Debentures are being
issued, as amended and supplemented (the "Indenture"), has been duly
qualified under the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency (including without
limitation, all laws relating to fraudulent transfers),
reorganizations, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(h) The Debentures have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, in each case enforceable in accordance
with their respective terms, subject to applicable bankruptcy,
insolvency (including without limitation, all laws relating to
fraudulent transfers), reorganizations, moratorium or similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Debentures will not contravene any provision of
applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries, except for such contraventions as would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, except for such contraventions as would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, the Indenture or the Debentures, except such as have been
obtained and except such as may be
4
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Debentures.
(j) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business,
operations or business prospects of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement). Since the respective dates as of which information is
given in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), there have been no
transactions entered into, and no obligations or liabilities,
contingent or otherwise, incurred, by the Company or any of its
subsidiaries, whether or not in the ordinary course of business, which
are required to be described in the Registration Statement or the
Prospectus.
(k) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement
that are not described, filed or incorporated as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(m) The Company is not and, after giving effect to the
offering and sale of the Debentures and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company, are independent public
accountants as required by the Securities Act and the rules and
regulations promulgated thereunder. The financial statements, together
with related schedules and
5
notes, included or incorporated by reference in the Registration
Statements and the Prospectus comply in all material respects with the
requirements of the Securities Act and present fairly the consolidated
financial position, results of operations and changes in financial
positions of the Company on the basis stated in the Registration
Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; and the selected financial data and the
summary financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the financial statements incorporated by reference in the
Prospectus. The pro forma combined financial statements of the Company
and Interstate Power Company and the related notes thereto included in
the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein;
(o) Neither the Company nor any of its Subsidiaries is (i)
in violation of its certificate or articles of incorporation or bylaws
(or other organizational documents), or (ii) in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Company or any such Subsidiary, or (iii) in
violation of any decree of any court or governmental agency or body
having jurisdiction over the Company or any such Subsidiary, or (iv)
in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence
of indebtedness or in any agreement, indenture, lease or other
instruments to which the Company or any of its Subsidiaries is a party
or by which any of them or any of their respective properties may be
bound, except, in the case of clauses (ii), (iii) and (iv), where any
such violation or default, individually or in the aggregate, would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(p) The Company and each of its subsidiaries has good and
marketable title to all real and personal property owned by it, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be
6
made of such property by the Company or any subsidiary; and any real
property and buildings held under lease by the Company or any
subsidiary are held under valid, subsisting and enforceable leases
with such exceptions as are not material to the business of the
Company and its subsidiaries, taken as a whole, and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company or any subsidiary;
(q) except as disclosed in the Prospectus, the Company and
its subsidiaries (A) are in compliance with any and all applicable
Environmental Laws, (B) have received all permits, licenses or other
approvals required under applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") to conduct their
businesses and (C) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(r) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business,
operations or business prospects of Interstate Power Company
("Interstate") and its subsidiaries, taken as a whole, from that set
forth in the Company's Registration Statement on Form S-4
(Registration Statement No. 333-53846), as amended, filed with the
Commission under the Securities Act (the "S-4") (exclusive of
documents filed subsequent to the date of this Agreement). Since the
respective dates as of which information is given in the S-4
(exclusive of any documents filed subsequent to the date of this
Agreement), there have been no transactions entered into, and no
obligations or liabilities, contingent or otherwise, incurred, by
Interstate or any of its subsidiaries, whether or not in the ordinary
course of business, which are required to be disclosed in the
Registration Statement or the Prospectus.
(s) There are no legal or governmental proceedings pending
or threatened to which Interstate or any of its subsidiaries is a
party or to which any of the properties of Interstate or any of its
subsidiaries is subject that are required to be described in the S-4
or the Prospectus and are not so
7
described or any statutes, regulations, contracts or other documents
that are required to be described in the S-4 or the Prospectus or to
be filed or incorporated by reference as exhibits to the S-4 or the
Registration Statement that are not described, filed or incorporated
as required.
4. Terms of Public Offering. The Company is advised by the
Underwriters that they propose to make a public offering of the Debentures as
soon after this Agreement has been entered into as in the judgment of the
Representative is advisable. The terms of the public offering of the Debentures
are set forth in the Prospectus.
5. Payment and Delivery. Except as otherwise provided in this Section
5, payment for the Debentures shall be made to the Company in Federal or other
funds immediately available at the time (the "Closing Date") and place set forth
in Schedule II hereto, upon delivery to Xxxx Xxxxx of the Debentures, in fully
registered global form registered in the name of Cede & Co., for the respective
accounts of the several Underwriters registered in such names and in such
denominations as Xxxx Xxxxx shall request in writing not less than the business
day immediately preceding the date of delivery, with any transfer taxes payable
in connection with the transfer of the Debentures to the Underwriters duly paid.
6. Conditions to the Underwriters' Obligations. The obligations of the
Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business, operations or business prospects of the Company
and its subsidiaries, taken as a whole, from that set forth
in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this
Agreement) that, in the reasonable judgment of the
Representative, is material and adverse and that makes it,
in the reasonable
8
judgment of the Representative, impracticable to market the
Debentures on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Xxxx X. Xxxxxxxx, Managing Attorney of the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) each Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
9
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganizations, moratorium or
similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law);
(v) the Debentures have been duly authorized and
executed and, when authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of the
Company, in each case enforceable in accordance with their
respective terms, subject to applicable bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law);
(vi) (A) the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Debentures will
not contravene any provision of applicable law or the
articles of incorporation or by-laws of the Company or, to
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries, except
for such contraventions as would not have a material adverse
effect on to the Company and its subsidiaries, taken as a
whole, or, to such counsel's knowledge, any judgment, order
or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, except for
such contraventions as would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole, and (B) no consent, approval, authorization or order
of, or qualification with, any governmental body or agency
is required for the performance by the Company of its
obligations under this Agreement, the Indenture and the
Debentures, except such as have been obtained and except
such as may be required by the securities
10
or Blue Sky laws of the various states in connection with
the offer and sale of the Debentures;
(vii) the statements (A) in the Prospectus under
the caption "Description of the Senior Debentures", (B) in
the Registration Statement under Item 15, (C) in "Item 3 -
Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the
Prospectus and (D) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly report on Form 10-Q for the
quarter ended September 30, 2000 filed since such annual
report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called
for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to
therein;
(viii) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required;
(ix) the Company is not and, after giving effect
to the offering and sale of the Debentures and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term
is defined in the Investment Company Act of 1940, as
amended;
(x) neither the Company nor any of its
Subsidiaries is (A) in violation of its certificate or
articles of incorporation or bylaws (or other organization
documents), or (B) to the knowledge of such counsel, in
violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of the Subsidiaries, or (C) to the knowledge of such
counsel, in violation of any decree of any court or
governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries, or (D) to the knowledge
of such counsel, in default in the performance of any
obligation, agreement or condition
11
contained in any bond, debenture, note or any other evidence
of indebtedness or in any agreement, indenture, lease or
other instruments to which the Company or any of its
Subsidiaries is a party or by which any of them or any of
their respective properties may be bound, except, in the
case of clauses (B), (C) and (D), where any such violation
or default, individually or in the aggregate, would not have
a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(xi) (A) each document, if any, filed pursuant to
the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules
and other financial or statistical data included therein as
to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, and (B) the Registration Statement
and Prospectus (except for financial statements and
schedules included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder; and
(xii) the Registration Statement has become
effective under the Securities Act; to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement is in effect, no order directed to
the adequacy of any document incorporated by reference in
the Prospectus has been issued by the Commission and no
proceedings for either such purpose are pending before or
threatened by the Commission.
In addition, such counsel shall state that nothing has come to such counsel's
attention that would lead such counsel to believe that (A) (except for financial
statements and schedules, as to which such counsel need not express any belief,
and except for that part of the Registration Statement that constitutes the Form
T-1 heretofore referred to, as to which such counsel need not express any
belief) the Registration Statement, when it became effective, contained or as of
the date such opinion is delivered, contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (B) (except for
financial statements and schedules, as to which such counsel need not express
any belief) the Prospectus as of the date such opinion is delivered contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
12
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx & Xxxxxxx, counsel for the Company, dated the
Closing Date, covering the matters referred to in Sections
6(c)(iii)-(vi), 6(c)(vii) (but only as to the statements in the
Prospectus under the caption "Description of the Senior Debentures"
and in the Registration Statement under Item 15), 6(c)(viii),
6(c)(ix), 6(c)(xi) and 6(c)(xii) and the last paragraph of Section
6(c). As to all matters of Iowa law, Xxxxx & Lardner may rely upon the
opinion of Xxxx X. Xxxxxxxx, Esq., referred to in Section 6(c).
(e) The Underwriters shall have received on the Closing Date
an opinion of Pillsbury Winthrop LLP, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 6(c)(iii), 6(c)(iv), 6(c)(v) and 6(c)(vii) (but only as to
the statements in the Prospectus under "Description of the Senior
Debentures") and clause 6(c)(xi)(B) and the last paragraph of Section
6(c) above.
With respect to the last paragraph of Section 6(c) above,
Xxxx X. Xxxxxxxx, Esq. and Xxxxx & Lardner may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein
by reference and review and discussion of the contents thereof, but
are without independent check or verification, except as specified.
With respect to the last paragraph of Section 6(c) above, Pillsbury
Winthrop LLP may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or
verification, except as specified.
The opinions of Xxxx X. Xxxxxxxx, Esq. and Xxxxx & Lardner
described in Section 6(c) and 6(d), respectively, above shall be
rendered to the Underwriters at the request of the Company and shall
so state therein.
(f) The Underwriters shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof and the
Closing Date, respectively, and as of a date not more than three days
prior to the date of each such letter, in form and substance
satisfactory to the Underwriters, from the Company's independent
public accountants, containing statements and information of the type
ordinarily included in
13
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party, except as provided in the last paragraph of Section 10 below.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To comply with the requirements of Rule 430A under the
Securities Act and to promptly effect the filings necessary pursuant
to Rule 424(b) under the Securities Act; to furnish the
Representative, without charge, one signed copy of the Registration
Statement (including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish the Representative in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 7(c) below, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as the
Representative may reasonably request.
(b) During such period after the execution of this Agreement
as in the opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered in connection with sales by an
Underwriter or dealer, before amending or supplementing the
Registration Statement or the Prospectus with respect to the
Debentures, to furnish to the Representative a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which the Representative reasonably
objects.
(c) If, during such period after the first date of the
public offering of the Debentures as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in
14
the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith
to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Company) to which Debentures may
have been sold by the Representative on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Debentures for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request; provided, however, that the
Company shall not be required to qualify as a foreign corporation or
to file a consent to service of process or to file annual reports or
to comply with any other requirements deemed by the Company in its
reasonable judgment to be unduly burdensome.
(e) To make generally available to the Company's security
holders and to the Representative as soon as practicable an earning
statement covering a twelve month period beginning on the first day of
the first full fiscal quarter after the date of this Agreement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of this
Agreement and continuing to and including the date 30 days after the
Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company similar to the Debentures (other than
(i) the Debentures and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the
Representative.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses
15
of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Debentures under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Debentures to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal
investment memorandum in connection with the offer and sale of the
Debentures under state law and all expenses in connection with the
qualification of the Debentures for offer and sale under state law as
provided in Section 7(d) hereof, the reasonable fees and disbursements
of counsel for the Underwriters in an amount not to exceed $5,000, and
all filing fees, in connection with such qualification and in
connection with the Blue Sky survey, (iv) the fees and disbursements
of the Company's counsel and accountants and of the Trustee and its
counsel, (v) all filing fees and the reasonable fees and disbursements
of counsel to the Underwriters incurred in connection with any review
and qualification of the offering of the Debentures by the National
Association of Securities Dealers, Inc., (vi) any fees charged by the
rating agencies for the rating of the Debentures, (vii) the costs and
expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the
offering of the Debentures, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show and (viii) all other costs and expenses
incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section.
It is understood, however, that except as provided in this Section,
Section 8 entitled "Indemnity and Contribution", and the last
paragraph of Section 10 entitled "Defaulting Underwriters; Expenses"
below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, and any advertising
expenses connected with any offers they may make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
16
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein and provided, further, that the Company
shall not be liable to any Underwriter or any person controlling such
Underwriter under the indemnity agreement provided for in this Section 8(a) with
respect to a preliminary prospectus to the extent that any such loss, claim,
damage or liability of such Underwriter or controlling person results solely
from the fact that such Underwriter sold Debentures to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference), whichever is most recent, if the Company has previously furnished
copies thereof to such Underwriter and the applicable untrue or alleged untrue
statement or omission was corrected therein..
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or
supplements thereto, it being understood and agreed that the only
information furnished by any Underwriter consists of the following
information in the Prospectus: the first sentence of the last
paragraph of the cover page, and, under the caption "Underwriting,"
the third paragraph, the first and second sentences of the fifth
paragraph, and the entire sixth paragraph.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 8(a) or 8(b),
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be
17
sought (the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate
in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding,
any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the indemnifying party shall not have employed counsel
to have charge of the defense of such proceeding within a reasonable
time after notice of commencement of the proceeding, or (iii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and the
indemnified party shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to direct the defense
of such proceeding on behalf of the indemnified party), in any of
which events such fees and expenses shall be borne by the indemnifying
party. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxx Xxxxx, in
the case of parties indemnified pursuant to Section 8(a) above, and by
the Company, in the case of parties indemnified pursuant to Section
8(b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 8(a) or 8(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified
party as a
18
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand
from the offering of the Debentures or (ii) if the allocation provided
by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Debentures shall be deemed to be
in the same respective proportions as the net proceeds from the
offering of such Debentures (before deducting expenses) received by
the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Debentures. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether 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 or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amounts of
Debentures they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 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 that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, 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 Section 8, no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Debentures
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that 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 Securities Act) shall be entitled to contribution from any person
who was not
19
guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at
law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Debentures.
9. Termination. This Agreement shall be subject to termination by
notice given by the Representative to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, or the
National Association of Securities Dealers, Inc., (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any
over-the-counter market, in each case, in which the Company has authorized
trading on such exchange or in such market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Representative, is
material and adverse and (b) in the case of any of the events specified in
clauses 9(a)(i) through 9(a)(iv), such event, singly or together with any other
such event, makes it, in the reasonable judgment of the Representative,
impracticable to market the Debentures on the terms and in the manner
contemplated in the Prospectus.
10. Defaulting Underwriters; Expenses. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase the Debentures
set forth opposite the name of such Underwriter or Underwriters in Schedule I
hereto that it has or they have agreed to purchase hereunder on such date, and
the aggregate amount of such Debentures which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Debentures to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
amount of such Debentures set forth opposite their respective names in Schedule
I hereto bears to the aggregate amount of such Debentures set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
the Representative may specify, to purchase the Debentures which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
20
date; provided that in no event shall the amount of the Debentures that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such amount
of such Debentures without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Debentures which it has or they have agreed to purchase hereunder and the
aggregate amount of such Debentures with respect to which such default occurs is
more than one-tenth of the aggregate amount of the Debentures to be purchased on
such date, and arrangements satisfactory to the Representative and the Company
for the purchase of such Debentures are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representative or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Representative because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all documented out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement or the
offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
21
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXX XXXXX XXXX XXXXXX,
INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXXX CAPITAL PARTNERS, L.P.
WACHOVIA SECURITIES, INC.
Acting severally on behalf of themselves and
the several Underwriters named herein
By: XXXX XXXXX XXXX XXXXXX,
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Accepted:
IES UTILITIES INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President-Treasurer and
Corporate Secretary
SCHEDULE I
Underwriter Principal Amount of Debentures
----------- ------------------------------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated $60,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $60,000,000
Xxxxxx X. Xxxxx & Co. Incorporated $26,800,000
Xxxxxxxx Capital Partners, L.P. $26,600,000
Wachovia Securities, Inc. $26,600,000
-----------
TOTAL....................... $200,000,000
SCHEDULE II
Underwriting Agreement dated March 6, 2001
Registration Statement No. 333-55906
Lead Underwriters and Addresses:
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Designation: 6 3/4% Series B Senior Debentures due 2011
Principal Amount: $200,000,000
Date of Maturity: March 15, 2011
Interest Rate: 6 3/4%
Interest Payment Dates: March 15 and September 15 of each year,
commencing September 15, 2001
Purchase Price: 99.112% of the principal amount thereof, plus
accrued interest, if any, from the date of
original issuance thereof
Public Offering Price: 99.762% of the principal amount thereof, plus
accrued interest, if any, from the date of
original issuance thereof
Redemption Terms: Redeemable in whole or in part at any time prior to
maturity at the option of the Company at the sum of
the outstanding principal amount thereof, together
with accrued and unpaid interest, if any, and the
make-whole amount, if any
Closing Date and Location: March 12, 2001
IES Utilities Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
2
