EXHIBIT 1(b)
UNDERWRITING AGREEMENT
For the Purchase of Subordinated Debentures
of IES Utilities Inc.
IES UTILITIES INC.
x/x Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties, and subject to the terms and
conditions, set forth in this agreement ("Underwriting
Agreement"), each Underwriter (defined below) shall purchase
from IES Utilities Inc. ("Company"), severally and not
jointly, and the Company shall sell to each of the
Underwriters (defined below), the principal amount of the
Company's unsecured junior subordinated debentures
("Subordinated Debentures") set forth opposite the name of
such Underwriter in Schedule II hereto at the price specified
in Schedule I hereto, plus accrued interest, if any, at the
rate specified in Schedule I hereto from either the first day
or the fifteenth day, as specified in Schedule I hereto, of
the month in which Debentures are issued, to the Closing Date
(hereinafter defined). The aggregate principal amount of such
Subordinated Debentures being sold hereunder is hereinafter
referred to as the "Debentures."
SECTION 2. Underwriters and Representative. The
term "Underwriters," as used herein, shall be deemed to mean
the several persons, firms, or corporations named in Schedule
II hereto (including any substituted Underwriters under the
provisions of Section 6), and the term "Representative," as
used herein, shall be deemed to mean the representative or
representatives of such Underwriters by whom or on whose
behalf this Underwriting Agreement is signed. If there shall
be one person, firm, or corporation named in said Schedule II,
the term "Underwriters" and the term "Representative," as used
herein, shall mean that person, firm, or corporation. All
obligations of the Underwriters are several and not joint.
SECTION 3. Description of the Bonds. The
Debentures shall be in the aggregate principal amount and
shall mature on the date specified in Schedule I hereto, and
shall be issued under and secured by the Indenture (herein so
called), dated as of ___________, 1995, of the Company to The
First National Bank of Chicago as Trustee ("Trustee"). The
Debentures shall bear interest at the rate per annum specified
in Schedule I hereto. The Debentures and the Indenture are
more fully described in the Prospectus hereinafter referred
to.
SECTION 4. Representations and Warranties of the
Company. The Company represents and warrants that:
(a) It has filed with the Securities and Exchange
Commission ("Commission") a registration statement (File No.
33-_____) (the "Registration Statement") for the registration
of $250,000,000 principal amount of the Company's debt
securities under the Securities Act of 1933, as amended
("Securities Act"). The Registration Statement has become
effective. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
that purpose have been initiated or threatened by the
Commission. The prospectus (including the supplement thereto)
forming a part of the Registration Statement, at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to as
the "Basic Prospectus." In the event that the Basic
Prospectus shall have been amended, revised, or supplemented
(but excluding any amendments, revisions, or supplements to
the Basic Prospectus relating solely to the offering of debt
securities other than the Debentures) prior to the time of
effectiveness of this Underwriting Agreement, and with respect
to any documents filed by the Company pursuant to Section 13,
14, or 15(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), after the time the Registration
Statement initially became effective and up to the time of
effectiveness of this Underwriting Agreement (but excluding
documents incorporated therein by reference relating solely to
the offering of debt securities other than the Debentures),
which documents are deemed to be incorporated by reference in
the Basic Prospectus, the term "Basic Prospectus" as used
herein shall also mean such prospectus as so amended, revised,
or supplemented. The Registration Statement as it initially
became effective and as it may have been amended by any
amendment thereto incorporated in the Basic Prospectus
(including for these purposes as an amendment any document
incorporated by reference in the Basic Prospectus) and the
Basic Prospectus as it shall be supplemented to reflect the
terms of offering and sale of the Debentures by a prospectus
supplement ("Prospectus Supplement") to be filed with the
Commission pursuant to Rule 424 under the Securities Act
("Rule 424"), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively;
(b) After the time of effectiveness of this Underwriting
Agreement, the Company will not file (i) any amendment to the
Registration Statement (except any amendment relating solely
to the offering of debt securities other than the Debentures)
or supplement to the Prospectus or (ii) prior to the time that
the Prospectus is filed with the Commission pursuant to Rule
424, any document which is to be incorporated by reference in,
or any supplement (including the Prospectus Supplement) to,
the Basic Prospectus, in either case without prior notice to
each of the Representative and Xxxxxx & Whitney P.L.L.P.
("Counsel for the Underwriters"), or any such amendment,
supplement, or document to which said Counsel shall reasonably
object on legal grounds in writing. For purposes of this
Underwriting Agreement, any document filed with the Commission
after the effectiveness of this Underwriting Agreement and
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to the offering of
debt securities other than the Debentures) pursuant to Item 12
of Form S-3 shall be deemed a supplement to the Prospectus;
(c) The Registration Statement, at the time of its
effectiveness, fully complied, the Indenture, at the time of
its execution, will fully comply, and the Prospectus, when
filed with the Commission pursuant to Rule 424 and at the
Closing Date (hereinafter defined), as it may then be
supplemented or amended, will fully comply, in all material
respects with the applicable provisions of the Securities Act,
the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations will be
deemed to comply therewith; the documents incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
on the date first filed with the Commission pursuant to the
Exchange Act, fully complied and on the date the Prospectus is
filed with the Commission pursuant to Rule 424 and at the
Closing Date (hereinafter defined) will comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations were or will be deemed
to comply therewith; on the date of its effectiveness, the
Registration Statement and any post-effective amendment
thereto (but excluding in each case any post-effective
amendment relating solely to the offering of debt securities
other than the Debentures) or, if later than such dates, on
the date that the Company's most recent annual report on Form
10-K was filed with the Commission under the Exchange Act, the
Registration Statement, as amended by any such post-effective
amendment, 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; the Prospectus, at
the date it is filed with the Commission pursuant to Rule 424
and at the Closing Date (hereinafter defined), as it may be
amended or supplemented, will not include an untrue statement
of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and
on said dates and at such times, the documents then
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or the
Prospectus as it may then be amended or supplemented, will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and
warranties in this subsection (c) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by or through the Representative on behalf of any Underwriter
expressly for use in connection with the preparation of the
Registration Statement or the Prospectus, as they may be
amended or supplemented, or to any statements in or omissions
from the statement of eligibility, as it may be amended, under
the Trust Indenture Act of the Trustee under the Indenture;
(d) The Federal Energy Regulatory Commission has
authorized the issuance and sale of the Debentures; such
authorization is in full force and effect; the issuance and
sale of the Debentures pursuant to this Underwriting Agreement
will not violate the terms of such authorization; and no other
authorization, approval or consent of any other governmental
body or regulatory authority is legally required for the
issuance and sale of the Debentures pursuant to this
Underwriting Agreement, except such as have been obtained
under the Securities Act and the Trust Indenture Act and such
as may be required under the state securities or "blue sky"
laws in connection with the purchase and distribution of the
Debentures by the Underwriters;
(e) The Company is a corporation duly incorporated, and
validly existing, and in good standing under the laws of the
State of Iowa and has full power and authority (corporate and
other) under such laws to own its properties and to conduct
its business as described in the Registration Statement and
the Prospectus; and the Company does not own or lease
substantial properties or conduct its business in any state
other than the State of Iowa;
(f) The Debentures have been duly authorized, and, when
issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by and secured by
the Indenture; the Indenture has been duly authorized and,
when executed and delivered by the Company and the Trustee,
will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, except in each case
as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and by an implied covenant of good faith and fair
dealing; and the Debentures and the Indenture will conform in
all material respects to the descriptions thereof in the
Prospectus; and
(g) The consummation by the Company of the transactions
herein contemplated and the fulfillment of the terms hereof
will not result in a breach of any of the terms or provisions
of, or constitute a default under, the Company's Articles of
Incorporation or Bylaws, as amended, or of any indenture or
other agreement or instrument to which the Company is now a
party.
SECTION 5. Offering. Forthwith upon the execution
of this Underwriting Agreement, the Representative, acting on
behalf of the Underwriters, shall advise the Company whether a
public offering of the Debentures is to be made, and, if so,
shall furnish to the Company (which information shall be
confirmed in writing as soon as practicable thereafter) (a)
the information with respect to such offering of the
Debentures and related matters that is required to complete
the Prospectus Supplement or any post-effective amendment to
the Registration Statement which may be required and a copy of
any "agreement among underwriters"; (b) if a post-effective
amendment to the Registration Statement is required, a
consent, if necessary, to the filing of the post-effective
amendment or an acceptable power-of-attorney authorizing an
available individual to sign the consent on its behalf; and
(c) such further information, if any, as may be required to be
furnished by the Company under the Federal Power Act. Such
information and the power-of-attorney may be provided by
telecopier (in the case of the power-of-attorney, followed
promptly by an executed copy). Nothing in this Underwriting
Agreement shall be construed to require that the Underwriters
make any such public offering on a "fixed price" basis. The
Representative agrees to notify the Company in writing of any
change in the plan of distribution of the Debentures that
would require a supplement to the Prospectus or an amendment
to the Registration Statement.
SECTION 6. Time and Place of Closing. Delivery of
the Debentures and payment therefor by check or checks,
payable to the Company or its order, in New York, New York, or
by wire transfer, in immediately available funds, shall be
made at the offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New
York Time, on the date which is three business days after the
date on which this Underwriting Agreement becomes effective,
or at such other place, time, and/or date as the
Representative and the Company may agree upon in writing or as
may be established in accordance with the following paragraph.
The hour and date of such delivery and payment are herein
called the "Closing Date."
The Debentures shall be delivered to the
Representative for the respective accounts of the Underwriters
in registered form in such authorized denominations and
registered in such names as the Representative may reasonably
request in writing at least two business days prior to the
Closing Date, or, to the extent not so requested, in the names
of the respective Underwriters in such denominations as the
Company shall determine.
For the purpose of expediting the checking of the
Debentures by the Representative, the Company agrees to make
the Debentures available to the Representative for checking
not later than 2:30 P.M., New York Time, on the last business
day preceding the Closing Date, at the New York office of
____________________, or at such other place, time, and/or
date as may be agreed upon between the Company and the
Representative.
If any Underwriter shall fail or refuse (otherwise
than for some reason sufficient to justify, in accordance with
the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal
amount of Debentures that it has agreed to purchase and pay
for hereunder, the Company shall immediately give notice to
the Representative of the default of such Underwriter, and the
other Underwriters shall have the right within twenty-four
(24) hours after the receipt of such notice by the
Representative to determine to purchase, or to procure one or
more others, who are members of the National Association of
Securities Dealers, Inc. ("NASD") (or, if not members of the
NASD, who are foreign banks, dealers, or institutions not
registered under the Exchange Act and who agree in making
sales to comply with the NASD's Rules of Fair Practice), and
satisfactory to the Company, to purchase, upon the terms
herein set forth, the principal amount of Debentures that the
defaulting Underwriter had agreed to purchase. If any non-
defaulting Underwriter or Underwriters shall determine to
exercise such right, the Representative shall give written
notice to the Company of such determination within twenty-four
(24) hours after it shall have received notice of any such
default, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine. If in the event of such a default the
Representative shall fail to give such notice, or shall within
such twenty-four (24) hour period give written notice to the
Company that no other Underwriter or Underwriters, or others,
will exercise such right, then this Underwriting Agreement may
be terminated by the Company, upon like notice given to the
Representative, within a further period of twenty-four (24)
hours. If in such case the Company shall not elect to
terminate this Underwriting Agreement, it shall have the
right, irrespective of such default:
(a) to require such non-defaulting
Underwriters to purchase and pay for the respective
principal amounts of Debentures that they had
severally agreed to purchase hereunder, as
hereinabove provided, and, in addition, the
principal amount of Debentures that the defaulting
Underwriter shall have so failed to purchase up to a
principal amount thereof equal to one-ninth (1/9th)
of the respective principal amounts of Debentures
that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or
(b) to procure one or more others, who
are members of the NASD (or, if not members of the
NASD, who are foreign banks, dealers, or
institutions not registered under the Exchange Act
and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon
the terms herein set forth, the principal amount of
Debentures that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the
remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under
clause (a) and/or (b) above, the Company shall give written
notice thereof to the Representative within such further
period of twenty-four (24) hours, and, thereupon, the Closing
Date shall be postponed for such period, not exceeding three
business days, as the Company shall determine. In the event
the Company shall be entitled to but shall not elect to
exercise its rights under clause (a) and/or (b), the Company
shall be deemed to have elected to terminate this Underwriting
Agreement.
Any action taken by the Company under this Section 6
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this
Underwriting Agreement. Termination by the Company under this
Section 6 shall be without any liability on the part of the
Company or any non-defaulting Underwriter, except as otherwise
provided in subsection (h) of Section 7.
In the computation of any period of twenty-four (24)
hours referred to in this Section 6, there shall be excluded a
period of twenty-four (24) hours in respect of each Saturday,
Sunday, or legal holiday which would otherwise be included in
such period of time.
SECTION 7. Covenants of the Company. The Company
agrees with each of the Underwriters:
(a) To deliver to the Representative a
signed copy of the Registration Statement as
originally filed and of all amendments thereto
relating to the Debentures or a conformed copy
thereof certified by an officer of the Company to be
in the form filed.
(b) To deliver to the Underwriters,
through the Representative, prior to 10:00 A.M. New
York Time on the business day after the date on
which this Underwriting Agreement becomes effective
as many copies of the Prospectus as the
Representative may reasonably request.
(c) To cause the Prospectus to be filed
with the Commission pursuant to and in compliance
with Rule 424, and to advise the Representative
promptly of the issuance of any stop order under the
Securities Act with respect to the Registration
Statement or the institution of any proceedings
therefor of which the Company shall have received
notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time (not
exceeding nine months) after the Prospectus has been
filed with the Commission pursuant to Rule 424 as
the Underwriters are required by law to deliver a
prospectus, if any event relating to or affecting
the Company or of which the Company shall be advised
in writing by the Representative shall occur which
in the Company's opinion should be set forth in a
supplement or amendment to the Prospectus in order
to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser of the Debentures, not misleading, to
notify the Representative of such event and to amend
or supplement the Prospectus by either (i) preparing
and filing with the Commission and furnishing to the
Representative at the Company's expense a reasonable
number of copies of a supplement or supplements or
an amendment or amendments to the Prospectus or (ii)
making an appropriate filing pursuant to Section 13,
14, or 15(d) of the Exchange Act, which will
supplement or amend the Prospectus so that, as
supplemented or amended, it will not contain an
untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary in order to make the statements therein,
in the light of the circumstances when the
Prospectus is delivered to a purchaser of the
Debentures, not misleading; provided that should
such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume
the expense of preparing any such amendment or
supplement. In case any Underwriter is required to
deliver a prospectus after the expiration of nine
months from the date the Prospectus is filed with
the Commission pursuant to Rule 424, the Company,
upon the request of the Representative, will furnish
to the Representative, at the expense of such
Underwriter, a reasonable quantity of a supplemented
or amended prospectus or supplements or amendments
to the Prospectus complying with Section 10(a) of
the Securities Act.
(e) During such period of time after the
date the Prospectus is filed with the Commission
pursuant to Rule 424 as a prospectus relating to the
Debentures is required to be delivered under the
Securities Act, to file promptly all documents
required to be filed with the Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act.
(f) To make generally available to the
Company's security holders as soon as practicable an
earning statement (which need not be audited) in
reasonable detail covering a period of at least
twelve months beginning after the "effective date of
the registration statement" within the meaning of
Rule 158 under the Securities Act, which earning
statement shall be in such form, and be made
generally available to security holders in such a
manner, as to comply with the requirements of
Section 11(a) of the Securities Act and Rule 158
promulgated under the Securities Act.
(g) At any time within six months of the
date hereof, to furnish such proper information as
may be lawfully required and otherwise cooperate in
qualifying the Debentures for offer and sale under
the "Blue Sky" laws of such jurisdictions as the
Representative may reasonably designate, provided
that the Company shall not be required to qualify as
a foreign corporation or dealer in securities, to
file any consents to service of process under the
laws of any jurisdiction, or to meet any other
requirements deemed by the Company to be unduly
burdensome.
(h) Except as herein otherwise provided,
to pay all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and
filing of the Registration Statement and any
amendments thereto, (ii) the issuance, printing, and
delivery of the Debentures, (iii) the qualification
of the Debentures under the "Blue Sky" laws of
various jurisdictions up to a maximum cost to it for
qualification and related legal fees of five
thousand dollars ($5,000), (iv) any fees charged by
securities rating services for rating the Debentures
and (v) the typing, printing, and delivery to the
Underwriters, through the Representative, of
reasonable quantities of copies of the Registration
Statement and the Prospectus, and any amendment or
supplement thereto, except as otherwise provided in
paragraph (d) of this Section. The Company shall
not, however, be required to pay any amount for any
expenses of the Representative or any of the
Underwriters, except that, if this Underwriting
Agreement shall be terminated in accordance with the
provisions of Section 8, 9, or 11, the Company will
reimburse the Representative for (i) the reasonable
fees and disbursements of counsel for the
Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event, and
(ii) their reasonable out-of-pocket expenses, in an
amount not exceeding a total of ten thousand dollars
($10,000), incurred in contemplation of the
performance of this Underwriting Agreement. The
Company shall not in any event be liable to any of
the Underwriters for damages on account of loss of
anticipated profits.
(i) Not to sell any additional
Subordinated Debentures until the earlier to occur
of (i) the Closing Date or (ii) in the case of an
initial public offering at a fixed price by the
Underwriters, the date of the termination of the
fixed price offering restrictions applicable to the
Underwriters. The Representative agrees to notify
the Company of such termination if it occurs prior
to the Closing Date.
SECTION 8. Conditions of Underwriters' Obligations.
The obligation of the Underwriters to purchase and pay for the
Debentures shall be subject to the accuracy of the
representations and warranties made herein on the part of the
Company and to the following conditions:
(a) The Prospectus shall have been filed
with the Commission pursuant to and in compliance
with Rule 424.
(b) No stop order suspending the
effectiveness of the Registration Statement shall be
in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending
before, or threatened by, the Commission on the
Closing Date; and at the Closing Date the
Representative shall have received a certificate,
dated the Closing Date and signed by an officer of
the Company, to the effect that no such stop order
has been or is in effect and that no proceedings for
such purpose are pending before, or to the knowledge
of the Company threatened by, the Commission.
(c) The authorization by the Federal
Energy Regulatory Commission of the issuance and
sale of the Debentures shall be in full force and
effect;
(d) At the Closing Date, the
Representative shall have received from Xxxxxxx X.
Xxxxxxxxx, Esq., counsel for IES Industries Inc.,
Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel to the
Company, and Xxxxxx & Whitney P.L.L.P., counsel for
the Underwriters, opinions in substantially the form
and substance set forth in Exhibits A, B, and C
hereto, respectively, (i) with such changes therein
as may be agreed upon by the Company and the
Representative, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to
the Debentures shall be supplemented after the
Prospectus shall have been filed with the Commission
pursuant to Rule 424, with changes therein to
reflect such supplementation.
(e) On the Closing Date, the
Representative shall have received from Xxxxxx
Xxxxxxxx LLP a letter dated the Closing Date, in
substantially the form and substance set forth in
Exhibit D hereto.
(f) At the Closing Date, the
Representative shall have received a certificate of
the Company dated the Closing Date and signed by a
Vice President of the Company, to the effect that
(i) the Federal Energy Regulatory Commission has
authorized the issuance and sale of the Debentures
and such authorization is in full force and effect,
to the best knowledge of the signer; (ii) since the
most recent date as of which information is given in
the Prospectus, as it may have been amended or
supplemented, there has not been any material
adverse change in the business, property, or
financial condition of the Company and there has not
been any material transaction entered into by the
Company, other than transactions in the ordinary
course of business, in each case other than as
referred to in, or contemplated by, the Prospectus,
as it may have been amended or supplemented; and
(iii) to the best knowledge of the signer, the
representations and warranties of the Company in
this Underwriting Agreement are true and correct in
all material respects at and as of the Closing Date,
and the Company has complied with all the agreements
and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date.
(g) All legal proceedings to be taken in
connection with the issuance and sale of the
Debentures shall have been satisfactory in form and
substance to Counsel for the Underwriters.
If any of the conditions specified in this Section 8
shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Representative with the consent of the
Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate fifty percent (50%) or
more of the principal amount of the Debentures, upon notice
thereof to the Company. Any such termination shall be without
liability of any party to any other party, except as otherwise
provided in subsection (h) of Section 7.
SECTION 9. Conditions of Company's Obligations.
The obligations of the Company hereunder shall be subject to
the following conditions:
(a) The Prospectus shall have been filed
with the Commission pursuant to and in compliance
with Rule 424.
(b) No stop order suspending the
effectiveness of the Registration Statement shall be
in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending
before, or threatened by, the Commission on the
Closing Date.
(c) The authorization by the Federal
Energy Regulatory Commission of the issuance and
sale of the Debentures shall be in full force and
effect.
In case any of the conditions specified in this
Section 9 shall not have been fulfilled, this
Underwriting Agreement may be terminated by the
Company upon notice thereof to the Representative.
Any such termination shall be without liability of
any party to any other party, except as otherwise
provided in subsection (h) of Section 7.
SECTION 10. Indemnification.
(a) The Company shall indemnify, defend,
and hold harmless each Underwriter and each person
who controls any Underwriter within the meaning of
Section 15 of the Securities Act from and against
any and all losses, claims, damages, or liabilities,
joint or several, to which they or any of them may
become subject under the Securities Act or any other
statute or common law. The Company shall reimburse
each such Underwriter and controlling person for any
legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees)
incurred by them, such reimbursement to be made as
such expenses are incurred by them, in connection
with investigating any such losses, claims, damages,
or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses, or actions arise out of or
are based upon any untrue statement or alleged
untrue statement of a material fact contained in a
preliminary prospectus (if used prior to the initial
effective date of the Registration Statement), or in
the Basic Prospectus (if used prior to the date that
the Prospectus is filed with the Commission pursuant
to Rule 424) or in the Registration Statement or the
Prospectus, as amended or supplemented (if any
amendments or supplements thereto shall have been
made), or the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which they were
made not misleading; provided, however, that the
indemnity agreement contained in this paragraph
shall not apply to any such losses, claims, damages,
liabilities, expenses, or actions arising out of, or
based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged
omission, if such statement or omission was made in
reliance upon and in conformity with written
information furnished to the Company by or through
the Representative on behalf of any Underwriter
expressly for use in connection with the preparation
of the Registration Statement or the Prospectus or
any amendment or supplement to either thereof, or
arising out of, or based upon, statements in or
omissions from that part of the Registration
Statement which shall constitute the statement of
eligibility under the Trust Indenture Act of the
Trustee under the Indenture; and provided further,
that the indemnity agreement contained in this
paragraph shall not inure to the benefit of any
Underwriter or of any person controlling any
Underwriter on account of any such losses, claims,
damages, liabilities, expenses, or actions arising
from the sale of the Debentures to any person if
there shall not have been given or sent to such
person on behalf of such Underwriter (i) with or
prior to the written confirmation of the sale to
such person a copy of the Prospectus, as then
amended or supplemented (exclusive for this purpose
of any amendment or supplement relating solely to
any offering of debt securities other than the
Debentures and of any document incorporated by
reference pursuant to Item 12 of Form S-3), and (ii)
as soon as available after such written confirmation
a copy of any amendment or supplement to the
Prospectus (exclusive for this purpose of any
document incorporated by reference pursuant to Item
12 of Form S-3) which the Company shall thereafter
furnish, pursuant to subsection (d) of Section 7
hereof, relating to an event occurring prior to the
payment for and delivery to such person of the
Debentures involved in such sale. The indemnity
agreement of the Company contained in this Section
and the representations and warranties of the
Company contained in Section 4 shall remain
operative and in full force and effect regardless of
any investigation made by or on behalf of any
Underwriter or any such controlling person, and
shall survive the delivery of the Debentures.
(b) Each Underwriter shall indemnify,
defend, and hold harmless the Company, its directors
and officers, and each person who controls any of
the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all
losses, claims, damages, or liabilities, joint or
several, to which they or any of them may become
subject under the Securities Act or any other
statute or common law and shall reimburse each of
them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel
fees) incurred by them, such reimbursement to be
made as such expenses are incurred by them, in
connection with investigating any such losses,
claims, damages, or liabilities or in connection
with defending any action, insofar as such losses,
claims, damages, liabilities, expenses, or actions
arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact
contained in the Registration Statement or the
Prospectus, as amended or supplemented (if any
amendments or supplements thereto shall have been
furnished), or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein
not misleading, if such statement or omission was
made in reliance upon and in conformity with written
information furnished to the Company by or through
the Representative on behalf of such Underwriter
expressly for use in connection with the preparation
of the Registration Statement or the Prospectus or
any amendment or supplement to either thereof. The
indemnity agreement of the respective Underwriters
contained in this paragraph shall remain operative
and in full force and effect regardless of any
investigation made by or on behalf of the Company,
its directors or officers, or any such controlling
person, and shall survive the delivery of the
Debentures.
(c) The Company and the several
Underwriters each shall, upon the receipt of notice
of the commencement of any action against it or any
person controlling it as aforesaid, in respect of
which indemnity may be sought on account of any
indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the
party or parties against whom indemnity shall be
sought hereunder, but the omission so to notify the
indemnifying party or parties of any such action
shall not relieve the indemnifying party or parties
from any liability which it or they may have to the
indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any
such action shall be so given, the indemnifying
party shall be entitled to participate at its own
expense in the defense or, if it so elects, to
assume (in conjunction with any other indemnifying
parties) the defense of the action, in which event
the defense shall be conducted by counsel chosen by
such indemnifying party or parties and satisfactory
to the indemnified party or parties who shall be a
defendant or defendants in the action, and the
indemnified defendant or defendants shall bear the
fees and expenses of any additional counsel retained
by them; but if the indemnifying party shall elect
not to assume the defense of the action, the
indemnifying party will reimburse the indemnified
party or parties for the reasonable fees and
expenses of any counsel retained by the indemnified
party or parties. If the indemnifying party does
not employ counsel to take charge of the defense [or
the indemnified party] reasonably concludes that
there may be defenses available to it or any person
liable with it which are different from or in
addition to those available to the indemnifying
party (in which case the indemnifying party will not
have the right to assume the defense on behalf of
the indemnified party), legal expenses (limited to
those of one counsel for all indemnified parties)
and other expenses reasonably incurred by the
indemnified party will be paid by the indemnifying
party. No party will be liable with respect to any
settlement made without its prior written consent.
(d) If the indemnification provided for
in this Section 10 is unavailable to hold harmless
an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall
contribute to the amount paid or payable by such
indemnified party as a result of such losses,
claims, damages or liabilities (or actions in
respect thereof) in such proportion as is
appropriate to reflect the relative benefits
received by the Company on the one hand and the
Underwriters on the other from the offering of the
Debentures. If, however, the allocation provided by
the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party
shall contribute to such amount paid or payable by
such indemnified party in such proportion as is
appropriate to reflect not only such relative
benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in
connection with the statements or omissions which
resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The
relative benefits received by the Company on the one
hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net
proceeds from the offering (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The
relative fault shall be determined by reference to,
among other things, whether the untrue or alleged
untrue statements of a material fact or the omission
or alleged omission to state a material fact relates
to information supplied by the Company on the one
hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to
information and opportunity to correct or prevent
such statements or omission. The Company and the
Underwriters agree that it would not be just and
equitable if contribution pursuant to this
subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method
of allocation which does not take account of
equitable considerations referred to above in this
subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified
party in connection with investigating or defending
any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess
of the amount by which the total price at which the
Debentures underwritten by it and distributed to the
public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of
such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The respective obligations of the
Company and the Underwriters under this Section 10
shall be in addition to any liability which each of
them may otherwise have.
SECTION 11. Termination. This Underwriting
Agreement may be terminated at any time prior to the Closing
Date by the Representative with the consent of the
Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate fifty percent (50%) or
more of the aggregate principal amount of the Debentures, if,
prior to such time, (i) trading in securities on the New York
Stock Exchange shall have been generally suspended, (ii)
minimum or maximum ranges for prices shall have been generally
established on the New York Stock Exchange by the New York
Stock Exchange, the Commission, or other governmental
authority, (iii) a general banking moratorium shall have been
declared by federal or New York State authorities, (iv) an
outbreak or escalation of hostilities or other national or
international calamity or crisis occurs, the effect of which
on the financial markets of the United States is such as, in
the reasonable judgment of the Representative, to make it
impracticable to market the Debentures or enforce contracts
for the sale of the Debentures or (v) in the reasonable
judgment of the Representative, the subject matter of any
amendment or supplement (prepared by the Company) to the Basic
Prospectus, the Registration Statement or the Prospectus
(except for information relating to the public offering of the
Debentures or to the activity of any Underwriter or
Underwriters) filed or issued after the effectiveness of this
Underwriting Agreement by the Company shall have materially
impaired the marketability of the Debentures. Any termination
hereof pursuant to this Section 11 shall be without liability
of any party to any other party, except as otherwise provided
in subsection (h) of Section 7.
SECTION 12. Applicable Law. This Underwriting
Agreement and the Debentures to be sold hereunder shall be New
York contracts, and their validity and interpretation shall be
governed by the laws of the State of New York.
SECTION 13. Successors. This Underwriting
Agreement shall inure to the benefit of the Company, the
Underwriters and, with respect to the provisions of Section
10, each director, officer, and controlling person referred to
in Section 10, and their respective successors. Nothing
herein is intended or shall be construed to give to any other
person, firm, or corporation any legal or equitable right,
remedy, or claim under or in respect of any provision in this
Underwriting Agreement. The term "successor" as used in this
Underwriting Agreement shall not include any purchaser, as
such purchaser, of any of the Debentures from any of the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be
mailed or delivered to the Representative at the address set
forth below, or, if to the Company, shall be mailed or
delivered to it c/o IES Utilities Inc., 000 Xxxxx Xxxxxx,
X.X., Xxxxx Xxxxxx, Xxxx 00000 Attention: Executive Vice
President.
SECTION 15. Counterparts. This Underwriting
Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of
such counterparts, when so executed and delivered, shall be
deemed to be an original, and all of such counterparts shall,
taken together, constitute one and the same agreement.
___________
The stated interest rate to be borne by the
Debentures and the price to be paid to the Company therefor
(stated as a percentage of the principal amount of the
Debentures), exclusive of accrued interest, if any, to be paid
to the Company from the first day or the fifteenth day, as
specified in Schedule I, of the month in which the Debentures
are issued to the Closing Date, in each case are set forth in
Schedule I hereto. If said interest rate and price and this
Underwriting Agreement are in accordance with your
understanding of our agreement, please indicate your
acceptance thereof in the space provided below for that
purpose; whereupon, this letter and your acceptance shall
constitute a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
As Representative(s) of the Underwriters
By:_______________________________
By:_______________________________
Name:
Title:
Address of Representative(s):
__________________________
_________________________
The foregoing Underwriting Agreement is hereby
accepted as of the date set forth below:
IES UTILITIES INC.
By:_____________________________
Name:
Title:
SCHEDULE I
Underwriting Agreement dated ____________, 199_
Registration Statement (No. 33-__________________)
Securities:
Designation: ___% Junior Subordinated Deferrable Interest
Debentures, Series ___, Due ________________
Principal Amount:
Date of Maturity:
Interest Rate: ___%
Commencement of Interest Accrual:
Purchase Price: ______%
Public Offering Price: ______%
Closing Date: _______________
SCHEDULE II
Principal Amount
Name of Underwriter of Bonds
Total________
EXHIBIT A
[Letterhead of IES Industries Inc.]
[Date]
Re: __% Junior Subordinated Deferrable
Interest Debentures, Series ___
$__________
Due_____________
Ladies and Gentlemen:
I am counsel for IES Industries Inc., the parent
company of IES Utilities Inc. (the "Company") and have
participated in the issuance and sale by the Company to you of
$____________ aggregate principal amount of __% Junior
Subordinated Deferrable Interest Debentures, Series ___ due
_____________ (the "Debentures"), issued under the Company's
Indenture, dated as of _________, 1995, to The First National
Bank of Chicago, as Trustee (the "Trustee") (the "Indenture")
pursuant to an Underwriting Agreement dated as of ________,
199_ between you and the Company (the "Underwriting
Agreement").
In this connection, I have examined, among other
things, the following:
(a) the Registration Statement and the Prospectus
(such terms having the same meanings herein as in the
Underwriting Agreement);
(b) the Articles of Incorporation of the Company
and all amendments thereto, as certified by the Secretary
of State of the State of Iowa;
(c) a Certificate of the Secretary of State or other
appropriate state official certifying as to the good
standing and qualification of the Company to transact
business in the State of Iowa;
(d) the By-laws of the Company, certified by the
Secretary of the Company;
(e) the Indenture;
(f) [certified copies of the Officer's Certificate
of the Company dated __________, 199_, including the
Addendum to the Resolution of the Board setting forth the
terms and conditions of the Debentures approved by the
Executive Vice President dated __________, 199_,
pertaining to the authorization and sale of the
Debentures and related matters];
(g) the Application filed by the Company with the
Federal Energy Regulatory Commission seeking, among other
things, authority for and approval of the issuance and
sale of Debentures and a copy of the Letter of Authority
issued by the Chief Accountant of such Commission, dated
__________, 1995, authorizing and approving the issuance
and sale of the Debentures;
(h) counterparts of the Underwriting Agreement
executed by you and the Company; and
(i) other information, documents, and material
which I deem sufficient along with the foregoing to
support this opinion.
In addition, in connection with this opinion, I have
reviewed various orders and certificates of, and members of
the legal staff of IES Industries Inc. had telephone
conversations with, public officials. I have not examined the
Debentures, except a specimen thereof.
Subject to the foregoing and to the further
exceptions and qualifications set forth below and having
regard to all legal and factual considerations which I deem
relevant and based upon all such other information and
documents furnished to or obtained by me as I believe
necessary to enable me to render this opinion, including
certificates of public officials, I am of the opinion that:
1. The Company has been duly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of Iowa, with full power and authority
(corporate and other) to own its property and to conduct its
business as presently being conducted all within the State of
Iowa.
2. The Debentures and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus.
3. The Underwriting Agreement has been duly authorized,
executed and delivered on behalf of the Company.
4. The Debentures have been duly authorized and, when
duly executed, authenticated, issued and delivered to and paid
for by you in accordance with the terms of the Underwriting
Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits and
security provided by the Indenture, enforceable against the
Company in accordance with their terms except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally, by
general principles of equity (regardless of whether or not
enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing.
5. The Indenture has been duly and validly authorized
by all necessary corporate action of the Company, has been
duly executed, acknowledged and delivered by the Company and
is a valid and legally binding instrument enforceable against
the Company in accordance with its terms except as the same
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights
generally, by general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and by an implied covenant of good faith and fair
dealing.
6. The execution and delivery of the Underwriting
Agreement, the consummation of the transactions therein
contemplated and the fulfillment of the terms thereof do not
and will not conflict with, or result in a breach by, the
Company of any of the terms or provisions of, or constitute a
default under, the Articles of Incorporation or By-laws of the
Company or the Indenture, or to the best of my knowledge after
reasonable investigation, any other indenture, mortgage, deed
of trust or other agreement or instrument to which the Company
is a party or by which it or any of its properties are bound.
7. The Chief Accountant of the Federal Energy
Regulatory Commission ("FERC") has authorized the issuance and
sale of the Debentures, which authorization is, to the best of
my knowledge, still in full force and effect; the issuance and
sale of the Debentures to you pursuant to the Underwriting
Agreement is in conformity with the terms of such
authorization; and no other authorization, approval or consent
of any other governmental body is legally required for the
issuance and sale of the Debentures pursuant to the
Underwriting Agreement, except such as have been obtained
under the Securities Act of 1933, as amended ("Securities
Act"), and such as may be required under state securities or
blue sky laws in connection with the purchase and distribution
of the Debentures by you.
8. Except as referred to in the Registration Statement
and Prospectus, to the best of my knowledge, there are no
material or contemplated legal proceedings to which the
Company is or may be a party or of which property of the
Company is or may be subject which depart from the ordinary
routine litigation incident to the kinds of business conducted
by the Company.
9. The documents incorporated by reference in the
Prospectus (other than the financial statements and financial
and statistical data, as to which I express no opinion), when
they were filed with the Securities and Exchange Commission
(the "Commission"), complied as to form in all material
respects with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder of the
Commission; and I have no reason to believe that any of such
documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading.
10. To the best of my knowledge, there are no contracts
or other instruments or documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
or required to be described in the Registration Statement or
the Prospectus which are not filed or incorporated by
reference or described as required.
I am a member of the bar of the State of Iowa and do
not hold myself out as an expert on the laws of any other
State. The opinion set forth above is solely for the benefit
of the addressees of this letter and may not be relied upon in
any manner by any other person without my prior written
consent, except that Winthrop, Stimson, Xxxxxx & Xxxxxxx may
rely on this opinion as to all matters of Iowa law in
rendering their opinions required to be delivered under the
Underwriting Agreement.
Very truly yours,
EXHIBIT B
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
Re: IES Utilities Inc.
$_________% Junior Subordinated
Deferrable Interest Debentures,
Series_____ Due____
Ladies and Gentlemen:
We are Counsel for IES Utilities Inc. ("Company")
and have acted in that capacity in connection with the
issuance and sale by the Company to you pursuant to the
Underwriting Agreement effective _________, 199_
("Underwriting Agreement") between the Company and you, of
$________in principal amount of ___% Junior Subordinated Deferrable
Interest Debentures, Series __ (the "Debentures"), issued
under the Company's Indenture dated as of ______________,
1995, to _____________, as Trustee (the "Trustee") (the
"Indenture").
We are members of the New York Bar and, for purposes
of this opinion, do not hold ourselves out as experts on the
laws of any jurisdiction other than the State of New York and
the United States of America. We have, with your consent,
relied upon the opinion of even date herewith addressed to you
by Xxxxxxx X. Xxxxxxxxx, Counsel for IES Industries Inc., as
to the matters covered in such opinion relating to Iowa law.
We have reviewed said opinion and believe that it is
satisfactory and that you and we are justified in relying
thereon.
We also examined such other documents and questions
of law and satisfied ourselves as to such other matters as we
have deemed necessary in order to enable us to express this
opinion. We have not examined and are expressing no opinion
or belief as to matters relating to the incorporation of the
Company. We also have not examined the Debentures, except a
specimen thereof. As to various questions of fact material to
this opinion, we have relied upon representations and
certificates of officers and representatives of the Company
and statements in the Registration Statement (the terms
"Registration Statement" and "Prospectus," as used herein,
have the same meanings as those words in the Underwriting
Agreement). We have also examined originals, or copies of
originals certified to our satisfaction, of such agreements,
documents, certificates and other instruments, as we have
considered relevant and necessary as a basis for such opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us
as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies.
Subject to the foregoing and to the further
exceptions and qualifications set forth below, we are of the
opinion that:
1. The Indenture has been duly and validly
authorized by all necessary corporate action of the Company,
has been duly executed, acknowledged and delivered by the
Company and is a valid and legally binding instrument
enforceable against the Company in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
2. The Debentures have been duly authorized and,
when duly executed, authenticated, issued and delivered to and
paid for by you in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits
and security provided by the Indenture enforceable against the
Company in accordance with their terms except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally, by
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing.
3. The summaries of the terms of the Indenture and
the Debentures contained in the Registration Statement and the
Prospectus fairly describe in all material respects the
provisions thereof required to be described by the
registration statement form.
4. The Underwriting Agreement has been duly
authorized, executed and delivered on behalf of the Company.
5. The execution and delivery of the Underwriting
Agreement, the consummation of the transactions therein
contemplated and the fulfillment of the terms thereof do not
and will not conflict with, or result in a breach by, the
Company of any of the terms or provisions of, or constitute a
default under, the Articles of Incorporation or By-laws of the
Company or to the best of our knowledge, any other indenture,
mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it or any of its
properties are bound. As used in this paragraph 5, the phrase
"to the best of our knowledge after reasonable investigation"
is intended to mean the actual knowledge or information known
by the lawyers in our firm who have been principally involved
in the transactions contemplated by the Underwriting
Agreement.
6. The Chief Accountant of the Federal Energy
Regulatory Commission has authorized the issuance and sale of
the Debentures, which authorization is, to the best of our
knowledge, still in full force and effect; the issuance and
sale of the Debentures to you pursuant to the Underwriting
Agreement is in conformity with the terms of such
authorization; and no other authorization, approval or consent
of any other federal commission or regulatory authority is
legally required for the issuance and sale of the Debentures
pursuant to the Underwriting Agreement, except such as have
been obtained under the Securities Act of 1933, as amended
("Securities Act") or the Trust Indenture Act.
7. To the best of our knowledge, the Registration
Statement is, at the date hereof, effective under the
Securities Act and no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for a stop order with respect thereto have been
instituted or are pending or threatened under the Securities
Act; the Registration Statement, at the time of its
effectiveness, and the Prospectus, at the time first filed
with the Securities and Exchange Commission ("Commission")
pursuant to Rule 424 under the Securities Act, complied as to
form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, and the applicable
rules and regulations of the Commission thereunder (except
that we express no opinion as to the financial statements or
other financial or statistical data included or incorporated
by reference therein or as to the Form T-1 filed as an exhibit
to the Registration Statement).
8. The Company and IES Industries Inc. are exempt
from regulation under the Public Utility Holding Company Act
of 1935, as amended, except under Section 9(a)(2) thereof.
9. To the best of our knowledge, there are no
contracts or other instruments or documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
In passing upon the forms of the Registration
Statement and the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included or incorporated by
reference in the Registration Statement and the Prospectus and
take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph 3 above.
In connection with the preparation of the Registration
Statement and the Prospectus, we have had discussions with
certain of the Company's officers and representatives, with
other counsel for the Company, with your counsel and with
Xxxxxx Xxxxxxxx LLP, the independent certified public
accountants who examined certain of the financial statements
included or incorporated by reference in the Registration
Statement. Our examination of the Registration Statement and
the Prospectus and our discussions did not disclose to us any
information that gives us reason to believe that the
Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus, at the time first filed with the
Commission pursuant to Rule 424 under the Securities Act and
at the date hereof, contained or contains an untrue statement
of a material fact or omitted 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. We do not express any opinion or belief as to the
financial statements or other financial or statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus. We do not express any opinion as
to the statements contained in the Form T-1 filed as an
exhibit to the Registration Statement.
The opinion set forth above is solely for the
benefit of the addressees hereof in connection with the
Underwriting Agreement and the transactions contemplated
thereunder and may not be quoted or furnished to, or relied
upon in any manner by, any other person or utilized for any
other purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, XXXXXX & XXXXXXX
EXHIBIT C
[Letterhead of Xxxxxx & Whitney]
[Date]
Re: IES Utilities Inc.
$____________ % Junior Subordinated
Deferrable Interest Debentures,
Series________________
Ladies and Gentlemen:
We have acted as your counsel in connection with the
issuance and sale by IES Utilities, Inc. (the "Company") to
you pursuant to the Underwriting Agreement dated ______,
199_ ("Underwriting Agreement") between the Company and you,
of $___________ in principal amount of ___ % Junior Subordinated
Deferrable Interest Debentures, Series ___ (the "Debentures"),
issued under the Company's Indenture, dated as of _______ 1,
199_, to ____________________, as Trustee (the "Trustee")
(the "Indenture"). This opinion is being delivered pursuant
to subsection (d) of Section 8 of the Underwriting Agreement.
We have examined such documents and reviewed such
questions of law as we have considered necessary and
appropriate for the purposes of this opinion. [Assumptions to
be stated here, including authenticity, signatures,
conformity, legal capacity, due incorporation, valid
existence, good standing, power and authority, mutuality of
obligations, title to real properties, adequacy of interest in
other property, UCC matters, due filing and recording,
adequacy of property descriptions and accuracy of references.]
[Reliance as to factual and other matters to be stated here.]
Based upon the foregoing, we are of the opinion
that:
1. the Company is a validly organized and existing
corporation in good standing under the laws of the State of
Iowa;
2. the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
3. the Indenture has been duly and validly
authorized by all necessary corporate action of the Company
and has been duly executed, acknowledged and delivered by the
Company; the Indenture is a valid and legally binding
instrument enforceable against the Company in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws relating to or affecting enforcement of
creditors' rights generally, by general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing; and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
("Trust Indenture Act");
4. the Debentures have been duly authorized and,
when duly executed, authenticated, issued and delivered to and
paid for by you in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits
and security provided by the Indenture, except as the same may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally, by
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law) and by an implied covenant of good faith and fair
dealing;
5. the Debentures and the Indenture conform as to
legal matters with the statements concerning them made in the
Prospectus, and such statements accurately set forth the
matters respecting the Debentures and the Indenture required
to be set forth in the Prospectus;
6. the Chief Accountant of the FERC has authorized
the issuance and sale of the Debentures, which authorization
is, to the best of our knowledge, still in full force and
effect; the issuance and sale of the Debentures to you
pursuant to the Underwriting Agreement is in conformity with
the terms of such authorization; and no other authorization,
approval or consent of any other federal commission or
regulatory authority is legally required for the issuance and
sale of the Debentures pursuant to the Underwriting Agreement,
except such as have been obtained under the Securities Act of
1933, as amended ("Securities Act"), or the Trust Indenture
Act;
7. the Registration Statement has become effective
under the Securities Act, and, to the best of our knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order
with respect thereto have been instituted or are pending or
threatened under the Securities Act;
8. the Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the applicable rules and regulations of the SEC thereunder
(except that we express no opinion as to the financial
statements and financial or statistical data contained therein
or as to the Form T-1 filed as an exhibit to the Registration
Statement); and
9. the Company is a subsidiary of IES Industries
Inc., an Iowa corporation, and both are exempt from regulation
under the Public Utility Holding Company Act of 1935, as
amended, except under Section 9(a)(2) thereof.
In the course of the preparation of the Registration
Statement and the Prospectus, we have considered the
information set forth therein in light of the matters required
to be set forth therein, and we have participated in
conferences with officers and representatives of the Company,
including its counsel and independent public accountants,
during the course of which the contents of the Registration
Statement and the Prospectus and related matters were
discussed. We have not independently checked the accuracy or
completeness of, or otherwise verified, and accordingly are
not passing upon, and do not assume responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus (except as
expressly stated in paragraph 5 of this letter); and we have
relied as to materiality, to a large extent, upon the judgment
of officers and representatives of the Company. However, as a
result of such consideration and participation, nothing has
come to our attention which causes us to believe that the
Registration Statement at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading
(except that we express no belief as to the financial
statements and financial and statistical data contained
therein), or that the Prospectus, at the time first filed with
the SEC pursuant to Rule 424 under the Securities Act and at
the date hereof, contained or contains an untrue statement of
a material fact or omitted 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 (except that we express no belief as to the
financial statements and financial and statistical data
contained therein). We do not express any opinion as to the
statements contained in the Form T-1 filed as an exhibit to
the Registration Statement.
The opinion set forth above is solely for the
benefit of the addressees of this letter and may not be relied
upon in any manner by, nor may copies be delivered to, any
other person without our prior written consent.
Very truly yours,
XXXXXX & XXXXXXX
EXHIBIT D
Pursuant to subsection (e) of Section 8 of the
Underwriting Agreement, Xxxxxx Xxxxxxxx LLP shall furnish a
letter to the Representative to the effect that:
(1) They are independent certified public accountants
with respect to the Company within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder;
(2) In their opinion, the financial statements and
schedules audited by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the related published
rules and regulations thereunder;
(3) On the basis of performing the procedures specified
by the American Institute of Certified Public Accountants for
a review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the latest available
unaudited financial statements included or incorporated by
reference in the Registration Statement, a reading of the
latest available interim unaudited financial statements of the
Company, the minutes of the meetings of the Board of
Directors, the Executive Committee thereof and the
stockholders of the Company, respectively, since the close of
the most recent audited fiscal year to a specified date not
more than five business days prior to the Closing Date, and
inquiries of officials of the Company who have responsibility
for the respective company's financial and accounting matters
(it being understood that the foregoing procedures do not
constitute an audit made in accordance with generally accepted
auditing standards and that they would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and, accordingly, that Xxxxxx Xxxxxxxx LLP makes
no representation as to the sufficiency of such procedures for
the several Underwriters' purposes), nothing has come to their
attention which caused them to believe that
(a) the unaudited financial statements included or
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations
thereunder;
(b) the audited and unaudited selected financial
information and supplemental financial information and ratios
of earnings to fixed charges included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable disclosure requirements
of Regulation S-K promulgated under the Securities Act;
(c) any material modifications should be made to
said unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(d) for the period from January 1, 1994 to the date
of the latest available unaudited financial statements of the
Company, there was any decrease in operating revenues,
operating income or net income as compared with the
corresponding period in the preceding year, except in all
instances for decreases which the Prospectus discloses have
occurred or may occur or except as set forth in such letter;
and
(e) at a specified date not more than five days
prior to the Closing Date there was any change in the capital
stock or long-term debt of the Company, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus
discloses have occurred or may occur, for declarations of
dividends, for the repayment or redemption of long-term debt,
for the amortization of premium or discount on long-term debt,
for the redemption or purchase of preferred stock for sinking
fund purposes, for any increases in long-term debt in respect
of previously issued pollution control revenue bonds, or for
changes or decreases as set forth in such letter, identifying
the same and specifying the amount thereof.
(4) In addition to the audit referred to in their
reports included or incorporated by reference in the
Prospectus and the inspection of minute books, inquiries and
other limited procedures referred to in paragraph 3 above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information including certain pro
forma information specified by the Representative which are
derived from the general accounting records of the Company
which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representative or in documents incorporated by reference in
the Prospectus specified by the Representative and agreed to
by the Company, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and have found them to be in agreement.
