IES UTILITIES INC.
UNDERWRITING AGREEMENT
[__________], 2001
IES Utilities Inc.
Alliant Energy Xxxxx
Xxxxx Xxxxxx, Xxxx 00000
1. Purchase and Sale. On the basis of the representations and
warranties, and subject to the terms and conditions set forth in this agreement
(this "Agreement"), the Underwriters (defined below) shall purchase from IES
Utilities Inc. (the "Company"), and the Company shall sell to the Underwriters,
severally and not jointly, the principal amount of the Company's [____]% Series
B Debentures due 2011, set forth opposite the name of the Underwriters in
Schedule I hereto at the price specified in Schedule II hereto (the aggregate
principal amount of the debentures described in Schedule II hereto are
hereinafter referred to as the "Debentures").
2. Underwriters. The term "Underwriters", as used herein, shall be
deemed to mean Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx Xxxxx"), Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), and the other
several persons, firms or corporations named in Schedule I hereto (including any
substituted Underwriters under the provisions of Section 10). All obligations of
the Underwriters hereunder are several and not joint. The term "Representatives"
shall refer to Xxxx Xxxxx and Xxxxxxx Xxxxx.
3. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (Registration
Statement No. 333-[_____]), including a prospectus, relating to
$[200,000,000] principal amount of senior debentures, including the
Debentures. That registration statement, as so filed, has become
effective under the Securities Act of 1933, as amended (the
"Securities Act"), no stop order suspending the effectiveness of such
registration statement is in effect and no proceedings for such
purpose are pending before or threatened by the Commission. The term
"Registration Statement" means the registration statement in the form
in which it became effective, including the exhibits thereto, but
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule
424(b) under the Securities Act and deemed by virtue of Rule 430A
under the Securities Act to be part of the registration statement at
the time it was declared effective. The term "Prospectus" means such
final prospectus, in the form first approved by the Representatives
for filing pursuant to Rule 424(b) under the Securities Act. The term
"preliminary prospectus" means any preliminary prospectus included in
the registration statement as originally filed or filed with the
Commission pursuant to Rule 424(a). As used herein, the terms
"Prospectus" and "preliminary prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date hereof by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) No order directed to the adequacy of any document
incorporated by reference in any preliminary prospectus or the
Prospectus has been issued by the Commission and no proceedings for
such purpose are pending before or threatened by the Commission.
(c) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in any preliminary
prospectus or the Prospectus complied or will comply when so filed in
all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the
registration statement, as it became effective, and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply,
and the Registration Statement will comply, in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) neither any preliminary prospectus
nor the Prospectus contains, nor, as amended or supplemented, if
applicable, will contain, any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph do not apply (A) to statements or omissions in
the Registration Statement, any preliminary prospectus or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through Xxxx
Xxxxx expressly for use therein or (B) to that part of the
2
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of Bank One Trust Company, National
Association (the "Trustee").
(d) The Company has been duly formed, is validly existing as
a corporation in good standing under the laws of Iowa, has the power
and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. The
Company possesses, and is in compliance with the terms and conditions
of, such material certificates, authorizations, franchises or permits
issued by the appropriate state or federal regulatory authorities or
bodies as are necessary to conduct its business as currently
conducted; the Company has not received any notice of proceedings
relating to the revocation or material modification of any such
certificate, authorization, franchise or permit.
(e) Each majority-owned subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole; all of the issued shares of capital stock of each such
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly by
the Company, free and clear of all liens, encumbrances, equities or
claims. Each such subsidiary possesses, and is in compliance with the
terms and conditions of, such material certificates, authorizations,
franchises or permits issued by the appropriate state or federal
regulatory authorities or bodies as are necessary to conduct its
business as currently conducted; no such subsidiary of the Company has
received any notice of proceedings relating to the revocation or
material modification of any such certificate, authorization,
franchise or permit.
(f) This Agreement has been duly authorized, executed and
3
delivered by the Company.
(g) The Indenture pursuant to which the Debentures are being
issued (the "Indenture") has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(h) The Debentures have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture, and will be valid and binding obligations
of the Company, in each case enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Debentures will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture or the Debentures, except such as have
been obtained under the Securities Act and the Public Utility Holding
Company Act of 1935 and such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and
sale of the Debentures.
(j) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business,
operations or business prospects of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement). Since the respective dates as of which information is
given in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the
4
date of this Agreement), there have been no transactions entered into,
and no obligations or liabilities, contingent or otherwise, incurred,
by the Company or any of its subsidiaries, whether or not in the
ordinary course of business, which are material to the Company and its
subsidiaries, taken as a whole.
(k) There are no legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(m) The Company is not and, after giving effect to the
offering and sale of the Debentures and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company, are independent public
accountants as required by the Securities Act and the rules and
regulations promulgated thereunder. The financial statements, together
with related schedules and notes, included or incorporated by
reference in the Registration Statements and the Prospectus comply in
all material respects with the requirements of the Securities Act and
present fairly the consolidated financial position, results of
operations and changes in financial positions of the Company on the
basis stated in the Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
selected financial data and the summary financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the financial statements
incorporated by reference in the
5
Prospectus. The pro forma financial statements of the Company and
Interstate Power Company and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein;
(o) Neither the Company nor any of its subsidiaries is (i)
in violation of its certificate or articles of incorporation or bylaws
(or other organizational documents), or (ii) in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Company or any such subsidiary, or (iii) in
violation of any decree of any court or governmental agency or body
having jurisdiction over the Company or any such subsidiary, or (iv)
in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence
of indebtedness or in any agreement, indenture, lease or other
instruments to which the Company or any of its subsidiaries is a party
or by which any of them or any of their respective properties may be
bound, except, in the case of clauses (ii), (iii) and (iv), where any
such violation or default, individually or in the aggregate, would not
have a material adverse effect on the condition, financial or
otherwise, earnings, business, operations or business prospects of the
Company and its subsidiaries, taken as a whole;
(p) The Company and each of its subsidiaries has good and
marketable title to all real and personal property owned by it, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or any
subsidiary; and any real property and buildings held under lease by
the Company or any subsidiary are held under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company or any subsidiary;
(q) Except as disclosed in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), there are no costs or liabilities associated with any and
all applicable foreign, federal, state and local laws and regulations
relating to
6
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws") (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the earnings, business, operations
or business prospects of the Company and its subsidiaries, taken as a
whole.
(r) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business,
operations or business prospects of Interstate Power Company
("Interstate") and its subsidiaries, taken as a whole, from that set
forth in Interstate's most recent Form 10-K, as supplemented by Forms
10-Q, filed with the Commission under the Exchange Act (the "Exchange
Act Filings") (exclusive of documents filed subsequent to the date of
this Agreement). Since the respective dates as of which information is
given in the Exchange Act Filings (exclusive of any documents filed
subsequent to the date of this Agreement), there have been no
transactions entered into, and no obligations or liabilities,
contingent or otherwise, incurred, by Interstate or any of its
subsidiaries, whether or not in the ordinary course of business, which
are material to Interstate and its subsidiaries, taken as a whole.
(s) There are no legal or governmental proceedings pending
or threatened to which Interstate or any of its subsidiaries is a
party or to which any of the properties of Interstate or any of its
subsidiaries is subject that are required to be described in the
Exchange Act Filings and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Exchange Act Filings or to be filed or incorporated
by reference as exhibits to the Exchange Act Filings that are not
described, filed or incorporated as required.
4. Terms of Public Offering. The Company is advised by the
Underwriters that they propose to make a public offering of the Debentures as
soon after this Agreement has been entered into as in the judgment of the
Representatives is advisable. The terms of the public offering of the Debentures
are set forth in the Prospectus.
5. Payment and Delivery. Except as otherwise provided in this Section
5, payment for the Debentures shall be made to the Company in Federal or other
7
funds immediately available at the time (the "Closing Date") and place set forth
in Schedule II hereto, upon delivery to Xxxx Xxxxx of the Debentures, in fully
registered global form registered in the name of Cede & Co., for the respective
accounts of the several Underwriters registered in such names and in such
denominations as Xxxx Xxxxx shall request in writing not less than the business
day immediately preceding the date of delivery, with any transfer taxes payable
in connection with the transfer of the Debentures to the Underwriters duly paid.
6. Conditions to the Underwriters' Obligations. The obligations of the
Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business, operations or business prospects of the Company
and its subsidiaries, taken as a whole, from that set forth
in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this
Agreement) that, in the judgment of the Representatives, is
material and adverse and that makes it, in the judgment of
the Representatives, impracticable to market the Debentures
on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon
8
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of [Xxxx X. Xxxxxxxx], [Managing Attorney] of the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole; the Company possesses such material
certificates, authorizations, franchises or permits issued
by the appropriate state or federal regulatory authorities
or bodies as are necessary to conduct its business as
currently conducted;
(ii) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole; each subsidiary of the
Company possesses such material certificates,
authorizations, franchises or permits issued by the
appropriate state or federal regulatory authorities or
bodies as are necessary to conduct its business as currently
conducted;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency
or similar laws affecting
9
creditors' rights generally and general principles of
equity;
(v) the Debentures have been duly authorized and
executed, when authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their
respective terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and general principles of equity;
(vi) (A) the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Debentures will
not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or,
to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and (B) no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the
Indenture and the Debentures, except such as have been
obtained from the Commission under the Securities Act and
the Public Utility Holding Company Act of 1935 and such as
may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Debentures;
(vii) the statements (A) in the Prospectus under
the captions "Description of the Senior Debentures" and
"Underwriting", (B) in the Registration Statement under Item
15, (C) in "Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (D) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports
on Form 10-Q filed since such annual report, in each case
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein,
fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly
10
summarize the matters referred to therein;
(viii) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus
and are not so described or of any statutes, regulations,
contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required;
(ix) the Company is not and, after giving effect
to the offering and sale of the Debentures and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term
is defined in the Investment Company Act of 1940, as
amended;
(x) except as disclosed in the Prospectus, the
Company and its subsidiaries (A) are in compliance with any
and all applicable Environmental Laws, (B) have received all
permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and
(C) are in compliance with all terms and conditions of any
such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(xi) neither the Company nor any of its
subsidiaries is (A) in violation of its certificate or
articles of incorporation or bylaws (or other organization
documents), or (B) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any of the subsidiaries, or (C) in
violation of any decree of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries, or (D) in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in
any agreement, indenture, lease or other instruments to
which the Company or any of its
11
subsidiaries is a party or by which any of them or any of
their respective properties may be bound, except, in the
case of clauses (B), (C) and (D), where any such violation
or default, individually or in the aggregate, would not have
a material adverse effect on the condition, financial or
otherwise, earnings, business, operations or business
prospects of the Company and its subsidiaries, taken as a
whole;
(xii) the Company and each of its subsidiaries has
good and marketable title to all real and personal property
owned by it, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and
proposed to be made of such property by the Company or such
subsidiary; and any real property and buildings held under
lease by the Company or any subsidiary are held under valid,
subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Company or such subsidiary;
(xiii) such counsel (A) is of the opinion that
each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (except for
financial statements and schedules included therein as to
which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that
(except for financial statements and schedules as to which
such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form
T-1 heretofore referred to) each part of the Registration
Statement, when such part became effective, contained and,
as of the date such opinion is delivered, contains any
untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (C)
is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules
included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with
the Securities Act and the applicable rules and regulations
of the Commission thereunder and (D) has no reason to
believe that (except for financial statements and schedules
as to which such
12
counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; and
(xiv) the Registration Statement has become
effective under the Securities Act; to such counsel's
knowledge after reasonable investigation, no stop order
suspending the effectiveness of the Registration Statement
is in effect, no order directed to the adequacy of any
document incorporated by reference in the Prospectus has
been issued by the Commission and no proceedings for either
such purpose are pending before or threatened by the
Commission.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx & Xxxxxxx, counsel for the Company, dated the
Closing Date, covering the matters referred to in Sections
6(c)(iii)-(ix), 6(c)(xiii) and 6(c)(xiv). As to all matters of Iowa
law, Xxxxx & Lardner may rely upon the opinion of [Xxxx X. Xxxxxxxx,
Esq.], referred to in Section 6(c).
(e) The Underwriters shall have received on the Closing Date
an opinion of Pillsbury Winthrop LLP, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 6(c)(iii), 6(c)(iv), 6(c)(v) and 6(c)(vii) (but only as to
the statements in the Prospectus under "Description of the Senior
Debentures", and "Underwriting" and clauses 6(c)(xiii)(B),
6(c)(xiii)(C) and 6(c)(xiii)(D) above.
With respect to Section 6(c)(xiii) above, [Xxxx X. Xxxxxxxx,
Esq.] and Xxxxx & Lardner may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
documents incorporated therein by reference and review and discussion
of the contents thereof, but are without independent check or
verification, except as specified. With respect to clauses
6(c)(xiii)(B), 6(c)(xiii)(C) and 6(c)(xiii)(D) above, Pillsbury
Winthrop LLP may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or
verification, except as specified.
13
The opinions of [Xxxx X. Xxxxxxxx, Esq.] and Xxxxx & Lardner
described in Section 6(c) and 6(d), respectively, above shall be
rendered to the Underwriters at the request of the Company and shall
so state therein.
(f) The Underwriters shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof and the
Closing Date, respectively, and as of a date not more than three days
prior to the date of each such letter, in form and substance
satisfactory to the Underwriters, from the Company's independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party, except as provided in the last paragraph of Section 10 below.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To comply with the requirements of Rule 430A under the
Securities Act and to promptly effect the filings necessary pursuant
to Rule 424(b) under the Securities Act; to furnish each of the
Representatives, without charge, [___] signed copies of the
Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish the
Representatives in New York City, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section 7(c) below,
as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Representatives may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Debentures, to furnish
to the Representatives a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Representatives reasonably object.
14
(c) If, during such period after the first date of the
public offering of the Debentures as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Representatives will
furnish to the Company) to which Debentures may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Debentures for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request; provided, however, that the
Company shall not be required to qualify as a foreign corporation or
to file a consent to service of process or to file annual reports or
to comply with any other requirements deemed by the Company in its
reasonable judgment to be unduly burdensome.
(e) To make generally available to the Company's security
holders and to the Representatives as soon as practicable an earning
statement covering a twelve month period beginning on the first day of
the first full fiscal quarter after the date of this Agreement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of this
Agreement and continuing to and including the date 180 days
thereafter, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company or warrants to purchase debt
securities of the Company similar to the Debentures (other than (i)
the Debentures and (ii) commercial paper
15
issued in the ordinary course of business), without the prior written
consent of the Representatives.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Debentures under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Debentures to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Debentures under state law and all
expenses in connection with the qualification of the Debentures for
offer and sale under state law as provided in Section 7(d) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky or legal investment memorandum, (iv)
the fees and disbursements of the Company's counsel and accountants
and of the Trustee and its counsel, (v) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with any review and qualification of the
offering of the Debentures by the National Association of Securities
Dealers, Inc., (vi) any fees charged by the rating agencies for the
rating of the Debentures, (vii) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Debentures,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road
show and (viii) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8 entitled
"Indemnity and Contribution", and the last paragraph of Section 10
entitled "Defaulting Underwriters; Expenses" below, the Underwriters
16
will pay all of their costs and expenses, including fees and
disbursements of their counsel, and any advertising expenses connected
with any offers they may make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or
supplements thereto, it being understood and agreed that the only
information furnished by any Underwriter consists of the following
information in the Prospectus: [______________________].
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 8(a) or 8(b),
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding,
17
any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the indemnifying party shall not have employed counsel
to have charge of the defense of such proceeding within a reasonable
time after notice of commencement of the proceeding, or (iii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and the
indemnified party shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to direct the defense
of such proceeding on behalf of the indemnified party), in any of
which events such fees and expenses shall be borne by the indemnifying
party. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxx Xxxxx, in
the case of parties indemnified pursuant to Section 8(a) above, and by
the Company, in the case of parties indemnified pursuant to Section
8(b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 8(a) or 8(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Debentures or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(d)(i) above but
also the relative fault of the
18
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Debentures shall be deemed to be
in the same respective proportions as the net proceeds from the
offering of such Debentures (before deducting expenses) received by
the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Debentures. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amounts of
Debentures they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Debentures
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other
statements of the Company
19
contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Debentures.
9. Termination. This Agreement shall be subject to termination by
notice given by the Representatives to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and (b) in the case of any of the events specified in clauses 9(a)(i)
through 9(a)(iv), such event, singly or together with any other such event,
makes it, in the judgment of the Representatives, impracticable to market the
Debentures on the terms and in the manner contemplated in the Prospectus.
10. Defaulting Underwriters; Expenses. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase the Debentures
set forth opposite the name of such Underwriter or Underwriters in Schedule I
hereto that it has or they have agreed to purchase hereunder on such date, and
the aggregate amount of such Debentures which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Debentures to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
amount of such Debentures set forth opposite their respective names in Schedule
I hereto bears to the aggregate amount of such Debentures set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
the Representatives may specify, to purchase the Debentures which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of the Debentures that
any Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such amount
of such Debentures without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Debentures which it has or they have agreed to purchase hereunder and the
20
aggregate amount of such Debentures with respect to which such default occurs is
more than one-tenth of the aggregate amount of the Debentures to be purchased on
such date, and arrangements satisfactory to the Representatives and the Company
for the purchase of such Debentures are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Representatives because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
21
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXX XXXXX XXXX XXXXXX,
INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXX X. XXXXX & CO.
XXXXXXXX CAPITAL PARTNERS, L.P.
WACHOVIA SECURITIES, INC.
Acting severally on behalf of themselves and the
several Underwriters named herein
By: XXXX XXXXX XXXX XXXXXX, INCORPORATED
By:
-----------------------------------
Name:
Title:
Accepted:
IES UTILITIES INC.
By:
----------------------------
Name:
Title:
SCHEDULE I
Underwriter Principal Amount of Debenture
----------- -----------------------------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated $[______________]
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated $[______________]
Xxxxxx X. Xxxxx & Co. $[______________]
Xxxxxxxx Capital Partners, L.P. $[______________]
Wachovia Securities, Inc. $[______________]
TOTAL............................... $[______________]
SCHEDULE II
Underwriting Agreement dated [__________], 2001
Registration Statement No. 333-[_______]
Lead Underwriters and Addresses:
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Designation: [____]% Series B Debentures due 2011
Principal Amount: $[___________]
Date of Maturity: [__________], 2011
Interest Rate: [_______]%
Interest Payment Dates: [__________] and [_________] of each year,
commencing [___________], 2001
Purchase Price: [________]% of the principal amount thereof, plus
accrued interest, if any, from the date of original
issuance thereof
Public Offering Price: [________]% of the principal amount thereof, plus
accrued interest, if any, from the date of original
issuance thereof
Redemption Terms: Redeemable in whole or in part at any time prior
to maturity at the option of the Company at the
sum of the outstanding principal amount thereof,
together with accrued and unpaid interest,
if any, and the make-whole amount, if any
Closing Date and Location: [___________], 2001
[Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000]
