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EXECUTION VERSION
INTERSTATE POWER AND LIGHT COMPANY
(an Iowa corporation)
7.10% SERIES C CUMULATIVE PREFERRED STOCK
PURCHASE AGREEMENT
Dated: September 9, 2003
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TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties...................................................2
(a) Representations and Warranties by the Company....................................2
(i) Compliance with Registration Requirements................................2
(ii) Incorporated Documents...................................................3
(iii) Independent Accountants..................................................3
(iv) Financial Statements.....................................................4
(v) No Material Adverse Change in Business...................................4
(vi) Good Standing of the Company.............................................4
(vii) No Significant Subsidiaries..............................................4
(viii) Capitalization...........................................................4
(ix) Authorization of Agreement...............................................5
(x) Authorization of the Articles of Amendment and the Securities............5
(xi) Description of the Articles of Amendment and the Securities..............5
(xii) Absence of Defaults and Conflicts........................................5
(xiii) Absence of Labor Dispute.................................................6
(xiv) Absence of Proceedings...................................................6
(xv) Accuracy of Exhibits.....................................................7
(xvi) Absence of Further Requirements..........................................7
(xvii) Possession of Licenses and Permits.......................................7
(xviii) Title to Property........................................................8
(xix) Investment Company Act...................................................8
(xx) Environmental Laws.......................................................8
(b) Officer's Certificates...........................................................9
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SECTION 2. Sale and Delivery to Xxxxxxx Xxxxx; Closing......................................9
(a) The Securities...................................................................9
(b) Payment..........................................................................9
(c) Denominations; Registration......................................................9
SECTION 3. Covenants of the Company.........................................................9
(a) Compliance with Securities Regulations and Commission Requests...................9
(b) Filing of Amendments............................................................10
(c) Delivery of Registration Statements.............................................10
(d) Delivery of Prospectuses........................................................10
(e) Continued Compliance with Securities Laws.......................................10
(f) Blue Sky Qualifications.........................................................11
(g) Rule 158........................................................................11
(h) Use of Proceeds.................................................................11
(i) Listing.........................................................................11
(j) Restriction on Sale of Securities...............................................11
(k) Reporting Requirements..........................................................11
(l) 1935 Act Filings................................................................12
(m) Rating of Securities............................................................12
(n) DTC.............................................................................12
(o) Compliance with Regulatory Approvals............................................12
SECTION 4. Payment of Expenses.............................................................12
(a) Expenses........................................................................12
(b) Termination of Agreement........................................................13
SECTION 5. Conditions of Xxxxxxx Xxxxx'x Obligations.......................................13
(a) Effectiveness of Registration Statement.........................................13
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(b) Opinion of Counsel for Company..................................................13
(c) Opinion of Counsel for Xxxxxxx Xxxxx............................................13
(d) Officers' Certificate...........................................................14
(e) Accountant's Comfort Letter.....................................................14
(f) Bring-down Comfort Letter.......................................................14
(g) Maintenance of Rating...........................................................14
(h) Additional Documents............................................................14
(i) Termination of Agreement........................................................15
SECTION 6. Indemnification.................................................................15
(a) Indemnification of Xxxxxxx Xxxxx................................................15
(b) Indemnification of Company, Directors and Officers..............................16
(c) Actions against Parties; Notification...........................................16
(d) Settlement without Consent if Failure to Reimburse..............................17
SECTION 7. Contribution....................................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery..................18
SECTION 9. Termination of Agreement........................................................18
(a) Termination; General............................................................18
(b) Liabilities.....................................................................19
SECTION 10. Intentionally Omitted...........................................................19
SECTION 11. Tax Disclosure..................................................................19
SECTION 12. Notices.........................................................................19
SECTION 13. Parties.........................................................................20
SECTION 14. Governing Law and Time..........................................................20
SECTION 15. Effect of Headings..............................................................20
SECTION 16. Counterparts....................................................................20
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SCHEDULES
Schedule A - List of Underwriters
Schedule B - Pricing Information
EXHIBITS
Exhibit A - Form of Articles of Amendment
Exhibit B - Form of Security
Exhibit C - Form of Opinion of Company's Counsel
Exhibit D - Form of Opinion of Company's In-House Counsel
iv
INTERSTATE POWER AND LIGHT COMPANY
(an Iowa corporation)
1,600,000 SHARES
7.10% SERIES C CUMULATIVE PREFERRED STOCK
PURCHASE AGREEMENT
September 9, 2003
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Interstate Power and Light Company, an Iowa corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx & Co. and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), with respect to the issue and
sale by the Company and the purchase by Xxxxxxx Xxxxx, of the number of shares
of 7.10% Series C Cumulative Preferred Stock, par value $0.01 per share, of the
Company (the "Securities"), set forth on Schedule A hereto. The Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated as
of the Closing Time (as defined in Section 2(b)) (the "DTC Agreement"), among
the Company, the Company's transfer agent and DTC.
The Company understands that Xxxxxxx Xxxxx proposes to make a public
offering of the Securities as soon as it deems advisable after this Agreement
has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-104273) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission, and the Company has filed such post-effective amendments thereto
(or such preliminary prospectus or preliminary supplemental prospectus) as may
be required under the 1933 Act and the 1933 Act Regulations, and each such
post-effective amendment has been declared effective by the Commission. Such
registration statement is referred to herein as the "Registration Statement;"
and the final prospectus and the final prospectus supplement relating to the
offering of the Securities, in the forms first furnished to Xxxxxxx Xxxxx by the
Company for use in connection with the offering of the Securities, are
collectively referred to herein as the "Prospectus;" provided, however, that all
references to the "Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended
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(the "1934 Act"), filed prior to the applicable date; provided, further, that if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then all references to "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement. A "preliminary prospectus" shall be
deemed to refer to (i) any prospectus used before the Registration Statement
became effective and (ii) any prospectus that omitted the information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations and was used after such effectiveness
and prior to the initial delivery of the Prospectus to Xxxxxxx Xxxxx by the
Company. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which are "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which are incorporated by
reference, as of such applicable date, in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be; and all references in this
Agreement to the Registration Agreement, amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference, as of such applicable date, in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to Xxxxxxx Xxxxx as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, and agrees with Xxxxxxx Xxxxx, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied or will comply, as the case may be, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
or will not, as the case may be, 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
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therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto) or Prospectus (or any amendment
thereto).
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to Xxxxxxx Xxxxx for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents.
(1) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied or
will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, did not or will
not, as the case may be, 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.
(2) The description of regulatory matters to which the Company is
subject, as disclosed in the Company's filings with the Commission
under the 1934 Act and the 1934 Act Regulations and as incorporated by
reference into the Registration Statement, is true and correct in all
material respects, except to the extent such description in any
specific filing has been superseded, updated or supplemented by such
description in a subsequent filing under the 1934 Act or the 1934 Act
Regulations made prior to the date hereof or by such description in
the Prospectus.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants with respect to the Company
and its subsidiaries within the meaning of Regulation S-X under the 1933
Act.
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(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of income, changes in common equity and cash
flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in all material
respects in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information
included in the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, in the
earnings or business affairs of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business nor has there been any developments involving a prospective
material adverse change of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company
and its subsidiaries, and (C) except for regular dividends on the common
stock, par value $2.50 per share, of the Company and the 8.375% Series B
Cumulative Preferred Stock, $0.01 par value per share, of the Company in
amounts per share that are consistent with past practice or the terms of
the 8.375% Series B Cumulative Preferred Stock, as the case may be, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation under the laws of the
State of Iowa and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(vii) No Significant Subsidiaries. The Company has no "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(viii) Capitalization. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in
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violation of the preemptive or other similar rights of any
securityholder of the Company. Except for 6,000,000 shares of the Company's
8.375% Series B Cumulative Preferred Stock, all of the issued and
outstanding shares of capital stock of the Company are, and immediately
prior to the Closing Time will be, owned directly by Alliant Energy
Corporation, a Wisconsin corporation (the "Parent"), free and clear of all
liens, encumbrances, equities or claims. The Parent is a "holding company"
and the Company is a "subsidiary" of a "holding company" as such terms are
defined under the Public Utility Holding Company Act of 1935, as amended.
Immediately prior to the Closing Time, the Company will have a total of
16,000,000 authorized shares of preferred stock, 6,000,000 of which will be
designated as 8.375% Series B Cumulative Preferred Stock pursuant to the
Articles of Amendment dated December 18, 2002, 1,600,000 of which will be
designated as 7.10% Series C Cumulative Preferred Stock pursuant to the
Articles of Amendment (defined in clause (x) below) and 8,400,000 of which
will be "blank-check" preferred. Immediately prior to the Closing Time,
none of the Company's authorized preferred stock will be outstanding except
for 6,000,000 shares of 8.375% Series B Cumulative Preferred Stock.
(ix) Authorization of Agreement. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Company.
(x) Authorization of the Articles of Amendment and the Securities. The
Articles of Amendment to the Company's Restated Articles of Incorporation,
substantially in the form set forth in Exhibit A (the "Articles of
Amendment"), relating to the Securities, substantially in the form set
forth in Exhibit B, and the issuance and sale of the Securities to Xxxxxxx
Xxxxx pursuant to this Agreement have been duly authorized by the Company.
Upon filing of the Articles of Amendment with the Secretary of State of the
State of Iowa, the Securities will be duly authorized and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein and in accordance with the terms of the
Articles of Amendment, will be validly issued, fully paid and
nonassessable, will be in the form which complies with the laws of the
State of Iowa and will have the rights, preferences, privileges and
restrictions set forth in the Articles of Amendment.
(xi) Description of the Articles of Amendment and the Securities. The
Articles of Amendment and the Securities will conform in the respective
material respects to all statements relating thereto contained in the
Prospectus and will be in substantially the respective forms set forth as
Exhibits A and B hereto; the description of the Securities in the
Prospectus conforms in all material respects to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject
to personal liability by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(xii) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement
5
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments") except for such violations or
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Articles of
Amendment and the Securities, the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, the
Agreements and Instruments except for such conflicts, breaches or defaults
or liens, charges or encumbrances that, singly or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of (x) the charter or by-laws of the Company or
any of its subsidiaries (except for such conflicts, breaches, defaults,
events or liens, charges or encumbrances that would not result in a
Material Adverse Effect) or (y) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations, except for any such violations with respect to this clause (y)
as would not, individually or in the aggregate, result in a Material
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(xiii) Absence of Labor Disputes. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any of its
subsidiaries' respective principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result in
a Material Adverse Effect.
(xiv) Absence of Proceedings. Except as disclosed in the Prospectus,
there is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect (A) the properties or assets
of the Company and its subsidiaries or (B) the consummation of the
transactions contemplated by this Agreement or the performance by the
Company of its obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is
a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation
6
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required
except that this Agreement will be filed as an exhibit to a Current Report
on Form 8-K which shall be filed with the Commission in accordance with the
1934 Act and the 1934 Act Regulations prior to the filing of the
Prospectus.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder, the consummation of the transactions contemplated
by this Agreement or for the due execution and filing with the Secretary of
State of the State of Iowa of the Articles of Amendment by the Company,
except (A) such as have been already obtained, (B) such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws,
(C) such as may be required by the Public Utility Holding Company Act of
1935, as amended (the "1935 Act"), solely with respect to filings required
to be made with the Commission subsequent to the Closing Time (such 1935
Act filings to be made by the Company) and (D) the filing of the Articles
of Amendment with the Secretary of State of the State of Iowa, which filing
shall have occurred on or prior to the Closing Time.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except where the
failure to possess any such Governmental Licenses would not have a Material
Adverse Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to possess or comply would not, singly or in the aggregate, have
a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect. Without limiting the foregoing, the Company has received final
orders of the Illinois Commerce Commission, dated December 11, 2002, and
the Minnesota Public Utilities Commission, dated March 28, 2003 (as amended
August 7, 2003), and the approval, dated December 12, 2003, of the
Commission under the 1935 Act authorizing the issuance of the Securities
and such issuance is in compliance with the terms and conditions of such
orders and approval. Such orders and approval are in full force and effect
and have not been amended supplemented or otherwise modified. No proceeding
to review, suspend, limit, modify, restrict or revoke any such order or
approval has been instituted.
7
(xviii) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (A) are
described in the Prospectus or (B) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of
its subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one enterprise,
and under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any of its subsidiaries has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or
any of its subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, except where such
would not have a Material Adverse Effect.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
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 "1940 Act").
(xx) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
8
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to Xxxxxxx Xxxxx or to counsel for
Xxxxxxx Xxxxx shall be deemed a representation and warranty by the Company to
Xxxxxxx Xxxxx as to the matters covered thereby.
SECTION 2. Sale and Delivery to Xxxxxxx Xxxxx; Closing.
(a) The Securities. On the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx agrees to
purchase from the Company, at the price per share set forth in Schedule B, the
number of Securities set forth in Schedule A opposite its name.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of the Company at
0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, 00000, or at such other place as
shall be agreed upon by Xxxxxxx Xxxxx and the Company, at 10:00 A.M. (Eastern
time) on the fifth business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by Xxxxxxx Xxxxx and
the Company (such time and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Xxxxxxx Xxxxx of certificates for the Securities to be purchased by Xxxxxxx
Xxxxx.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations as Xxxxxxx Xxxxx may request in writing at least two full
business days before the Closing Time and registered in the name of Cede & Co.,
as nominee of DTC.
SECTION 3. Covenants of the Company . The Company covenants with Xxxxxxx
Xxxxx as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will notify Xxxxxxx Xxxxx immediately
and confirm the notice in writing, (i) when any post-effective amendment to
the Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission with respect to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The
9
Company will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give Xxxxxxx Xxxxx notice
of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will xxxxxxx Xxxxxxx Xxxxx with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which Xxxxxxx Xxxxx or
counsel for Xxxxxxx Xxxxx shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Xxxxxxx Xxxxx and counsel for Xxxxxxx Xxxxx, without
charge, copies (one of which shall be manually signed) of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and copies
(one of which shall be manually signed) of all consents and certificates of
experts. The copies of the Registration Statement and each amendment
thereto furnished to Xxxxxxx Xxxxx will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered or will
deliver to Xxxxxxx Xxxxx, without charge, as many copies of each
preliminary prospectus and final prospectus as Xxxxxxx Xxxxx reasonably
requested, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to Xxxxxxx
Xxxxx, without charge, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as Xxxxxxx Xxxxx may reasonably
request. The Prospectus and any amendments or supplements thereto furnished
to Xxxxxxx Xxxxx will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If
at any time when a prospectus is required by the 1933 Act to be delivered
in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for Xxxxxxx Xxxxx or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file
10
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to Xxxxxxx Xxxxx such number of
copies of such amendment or supplement as Xxxxxxx Xxxxx may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with Xxxxxxx Xxxxx, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions as Xxxxxxx Xxxxx may designate and to maintain such
qualifications in effect so long as required for the sale of the
Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for such
period.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange no later than 30
days after the date hereof.
(j) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus, the Company will not, without the prior written
consent of Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any share of preferred stock of the
Company or any securities convertible into or exercisable or exchangeable
for preferred stock of the Company or file any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of
preferred stock of the Company, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
preferred stock of the Company or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Securities to be
sold hereunder.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all
11
documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) 1935 Act Filings. The Company shall timely file all notifications,
forms and reports that m.ay be required under the 1935 Act so as to permit
the completion of the distribution and sale of the Securities as
contemplated in this Agreement and in the Prospectus..
(m) Rating of Securities. The Company shall take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc. ("S&P"), and Xxxxx'x Investors Service Inc. ("Moody's")
to provide their respective credit ratings of the Securities.
(n) DTC. The Company will cooperate with Xxxxxxx Xxxxx and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(o) Compliance with Regulatory Approvals. The Company will comply with
the terms and conditions of the final orders of the Illinois Commerce
Commission and the Minnesota Public Utilities Commission and the approval
of the Commission under the 1935 Act issued on December 11, 2002, March 28,
2003 (as amended August 7, 2003) and December 12, 2002, respectively, as
such orders are amended from time to time until superseded, and shall
timely file all notifications, forms and reports that may be required in
connection therewith so as to permit the completion of the distribution and
sale of the Securities as contemplated in this Agreement and in the
Prospectus.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and any
schedules or exhibits and any document incorporated therein by reference) and of
each amendment or supplement thereto, (ii) the reproduction and delivery to
Xxxxxxx Xxxxx of this Agreement, the Articles of Amendment and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to Xxxxxxx Xxxxx, including any
stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to Xxxxxxx Xxxxx and any charges of
DTC in connection therewith, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
Xxxxxxx Xxxxx in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto (provided that counsel fees in
connection therewith do not exceed $5,000), (vi) the printing and delivery to
Xxxxxxx Xxxxx of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the fees and expenses of any
transfer agent or registrar for the Securities, (viii) the fees and expenses
incurred in connection
12
with the listing of the Securities on the New York Stock Exchange and (ix)
any fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by Xxxxxxx
Xxxxx in accordance with the provisions of Section 5 or Section 9(a)(i) hereof,
the Company shall reimburse Xxxxxxx Xxxxx for all of its out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for Xxxxxxx Xxxxx
(provided that such out-of-pocket expenses, fees and disbursements do not exceed
$200,000).
SECTION 5. Conditions of Xxxxxxx Xxxxx'x Obligations. The obligations of
Xxxxxxx Xxxxx hereunder are subject to the accuracy in all material respects of
the representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance in all
material respects by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to Xxxxxxx Xxxxx. A prospectus containing the information to be
included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations shall have been filed
with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, Xxxxxxx Xxxxx
shall have received the favorable opinion, dated as of the Closing Time, of
Xxxxx & Lardner, counsel for the Company, in form and substance reasonably
satisfactory to counsel for Xxxxxxx Xxxxx, to the effect set forth in
Exhibit C hereto. At the Closing Time, Xxxxxxx Xxxxx shall have received
the favorable opinion regarding certain state and local regulatory matters,
dated as of the Closing Time, of Xxxxxxx X. Xxxx, Executive Vice President
and General Counsel of the Company, in form and substance reasonably
satisfactory to counsel for Xxxxxxx Xxxxx, to the effect set forth in
Exhibit D hereto. In rendering such opinions, such counsel may rely as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and its
subsidiaries and of public officials.
(c) Opinion of Counsel for Xxxxxxx Xxxxx. At the Closing Time, Xxxxxxx
Xxxxx shall have received the favorable opinion, dated as of the Closing
Time, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for Xxxxxxx Xxxxx. In giving
such opinion such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to Xxxxxxx Xxxxx. In
rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its subsidiaries
and of public officials.
13
(d) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, in the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, nor has there been any
developments involving a prospective material adverse change of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and Xxxxxxx Xxxxx shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of the
Closing Time, to the effect that (i) there has been no such material
adverse change or any developments involving a prospective material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company has complied in all material
respects with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, Xxxxxxx Xxxxx shall have received from Deloitte & Touche LLP a
letter dated such date, in form and substance satisfactory to Xxxxxxx
Xxxxx, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, Xxxxxxx Xxxxx
shall have received from Deloitte & Touche LLP a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) Maintenance of Rating. At the Closing Time, the Securities shall
be rated at least "Baa3" by Moody's and "BBB-" by S&P, and the Company
shall have delivered to Xxxxxxx Xxxxx a letter dated the Closing Time, from
each such rating agency, or other evidence satisfactory to Xxxxxxx Xxxxx,
confirming that the Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's debt securities by any
"nationally recognized statistical rating agency," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no
such securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Securities or any of the Company's debt securities.
(h) Additional Documents. At the Closing Time, counsel for Xxxxxxx
Xxxxx shall have been furnished with such documents and opinions (including
but not limited to those referenced above) as they may reasonably require
for the purpose of enabling them
14
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall
be reasonably satisfactory in form and substance to Xxxxxxx Xxxxx and
counsel for Xxxxxxx Xxxxx.
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by Xxxxxxx Xxxxx by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Xxxxxxx Xxxxx. The Company agrees to indemnify and
hold harmless Xxxxxxx Xxxxx and each person, if any, who controls Xxxxxxx Xxxxx
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
15
furnished to the Company by Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further that
this indemnity agreement shall not inure to the benefit of Xxxxxxx Xxxxx or any
person who controls Xxxxxxx Xxxxx on account of any such loss, liability, claim,
damage or expense arising out of any such defect or alleged defect in any
preliminary prospectus if a copy of the Prospectus (exclusive of the documents
incorporated by reference therein) shall not have been given or sent by Xxxxxxx
Xxxxx with or prior to the written confirmation of the sale involved to the
extent that (i) the Prospectus would have cured such defect or alleged defect
and (ii) sufficient quantities of the Prospectus were timely made available to
Xxxxxxx Xxxxx.
(b) Indemnification of Company, Directors and Officers. Xxxxxxx Xxxxx
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. In addition, the indemnifying
party shall be entitled to, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of any claim or
action brought against an indemnified party with counsel reasonably satisfactory
to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that Xxxxxxx Xxxxx shall have the
right to employ one counsel (in addition to local counsel) to represent it and
its officers,
16
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by Xxxxxxx Xxxxx against
the Company under this Section 6 if, in the reasonable judgment of Xxxxxxx
Xxxxx, either (i) there is an actual or potential conflict between the position
of the Company on the one hand and Xxxxxxx Xxxxx on the other hand or (ii) there
may be defenses available to it that are different from or additional to those
available to the Company (in any of which events the Company shall not have the
right to direct the defense of such action on behalf of Xxxxxxx Xxxxx with
respect to such different defenses), in any of which events such reasonable fees
and expenses shall be borne by the Company. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and Xxxxxxx Xxxxx on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of Xxxxxxx Xxxxx on the other
hand in connection with the statements or omissions, which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and Xxxxxxx
Xxxxx on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by Xxxxxxx Xxxxx, in each case as
set forth on the cover
17
of the Prospectus, bear to the aggregate initial public offering price of
the Securities as set forth on such cover.
The relative fault of the Company on the one hand and Xxxxxxx Xxxxx on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by Xxxxxxx Xxxxx and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and Xxxxxxx Xxxxx agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, Xxxxxxx Xxxxx shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which Xxxxxxx Xxxxx
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls Xxxxxxx
Xxxxx within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as Xxxxxxx Xxxxx, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of Xxxxxxx Xxxxx or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to Xxxxxxx Xxxxx.
SECTION 9. Termination of Agreement.
(a) Termination; General. Xxxxxxx Xxxxx may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, since the time of
18
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus (exclusive of any supplement thereto),
any material adverse change in the condition, financial or otherwise, in the
earnings or business affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
any developments involving a prospective material adverse change of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred after the date hereof
and prior to the Closing Time any material adverse change in the financial
markets in the United States or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of Xxxxxxx
Xxxxx, impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the Company or
the Parent has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Intentionally Omitted.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this
Agreement, immediately upon commencement of discussions with respect to the
transactions contemplated hereby, the Company (and each employee, representative
or other agent of the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to the Company relating to such tax
treatment and tax structure. For purposes of the foregoing, the term "tax
treatment" is the purported or claimed federal income tax treatment of the
transactions contemplated hereby, and the term "tax structure" includes any fact
that may be relevant to understanding the purported or claimed federal income
tax treatment of the transactions contemplated hereby.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to Xxxxxxx Xxxxx
shall be directed to it at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxx Xxxxx Schlopy; and notices to the Company shall be directed to
it at 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, 00000, attention of Xxxxxx
X. Xxxxxx.
19
SECTION 13. Parties. This Agreement shall each inure to the benefit of and
be binding upon Xxxxxxx Xxxxx and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other xxxx Xxxxxxx Xxxxx and
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of Xxxxxxx Xxxxx and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from Xxxxxxx Xxxxx shall be deemed to be
a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT AND ALL DISPUTES,
CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR A BREACH
HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall constitute a single instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
Xxxxxxx Xxxxx and the Company in accordance with its terms.
Very truly yours,
INTERSTATE POWER AND LIGHT COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Authorized Signatory Xxxx X. Xxxxxxx
Director
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SCHEDULE A
Number of
Securities
----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated................. 1,600,000
SCHEDULE B
The initial public offering price per share for the Securities shall be
$25.00. The purchase price per share for the Securities to be paid by Xxxxxxx
Xxxxx shall be $24.2125, being an amount equal to the initial public offering
price set forth above less $0.7875 per share.
