EXHIBIT 1(b)
UNDERWRITING AGREEMENT
For the Purchase of Subordinated Debentures
of IES Utilities Inc.
IES UTILITIES INC.
▇/▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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. 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. The use of the term "Underwriter" herein
shall not be deemed to establish or admit that a purchaser of the Debentures is
an "Underwriter" of the Debentures as such term is defined in and used under the
Securities Act of 1933, as amended ("Securities Act").
SECTION 3. Description of the Debentures. 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 (For
Unsecured Subordinated Debt Securities) dated as of December 1, 1995
("Indenture"), 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") two registration statements (File Nos. 33-62259 and
333-_____) (collectively, the "Registration Statement") for the
registration of up to an aggregate of $135,000,000 principal amount of the
Company's debt securities under the Securities Act. Registration statements
(File Nos. 33-62259 and 333-_____) have 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
▇▇▇▇▇▇ & Whitney LLP ("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
effectiveness of 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 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, executed
and delivered by the Company and the Trustee, and constitutes 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York time, on _____,
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 The
First National Bank of Chicago, 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
(g) 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) 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) any fees charged
by securities rating services for rating the Debentures and (iv) 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
___________, counsel for IES Industries Inc., Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel to the Company, and ▇▇▇▇▇▇ & Whitney LLP, 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 (g) 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 (g) 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 which becomes incorporated by reference
pursuant to Item 12 of Form S-3 more than 3 business days prior to the date
hereof), 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 if counsel
for the indemnified party reasonably concludes that there may be defenses
available to the indemnified party 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 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 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., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: Treasurer.
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), 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:
------------------------------------
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:
Date:
SCHEDULE I
Underwriting Agreement dated ____________
Registration Statements (Nos. 33-62259 and 333-____________)
Securities:
Designation:
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 Debentures
------------------- ----------------
Total
==========
EXHIBIT A
[Letterhead of IES Industries Inc.]
[Date]
Re: __% Subordinated 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 __% Subordinated
Debentures, Series ___ due _____________ (the "Debentures"), issued under the
Company's Indenture (For Unsecured Subordinated Debt Securities), dated as of
December 1, 1995, to The First National Bank of Chicago, as Trustee (the
"Trustee") (the "Indenture") pursuant to an Underwriting Agreement dated as of
________ 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) resolution of the Board of Directors of the Company [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
__________, authorizing and approving the issuance and sale of the
Debentures;
(h) certified copies of the Officer's Certificate of the Company dated
__________, setting forth the terms and conditions of the Debentures
approved by the __________ of the Company.
(i) counterparts of the Underwriting Agreement executed by you and the
Company; and
(j) 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, including the
Agreement and Plan of Merger, by and among, WPL Holdings, Inc., IES Industries
Inc., Interstate Power Company (a Delaware corporation), WPLH Acquisition Co.,
and Interstate Power Company (a Wisconsin corporation), dated as of November 10,
1995, as amended.
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. The Company has the legal right to function and operate as an electric
and gas utility in the state of Iowa, holds valid and subsisting franchises
authorizing it to carry on the utility business in which it is engaged in all
incorporated communities having a population of 1,000 or more (except in ____,
which operations have not been impaired by the lack ofsuch franchises), and has
adaquate licenses and permits where required by law to maintain electric and gas
transmission and distribution lines through unincorporated areas and over public
lands not located in incorporated communities and over private rights-of-way in
the territory which it serves.
9. 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.
10. 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.
11. 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
[Date]
Re: IES Utilities Inc.
$ % Subordinated Debentures,
Series Due
Ladies and Gentlemen:
We have acted as Counsel for IES Utilities Inc. ("Company") in
connection with the issuance and sale by the Company to you pursuant to the
Underwriting Agreement dated _________, ("Underwriting Agreement") between the
Company and you, of $ in principal amount of % Subordinated Debentures, Series
__ (the "Debentures"), issued under the Company's Indenture dated as of December
1, 1995, to The First National Bank of Chicago, 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
__________, 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
EXHIBIT C
[Letterhead of ▇▇▇▇▇▇ & Whitney LLP]
[Date]
Re: IES Utilities Inc.
$ % Subordinated 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 , ("Underwriting Agreement") between the Company
and you, of $___________ in principal amount of % Subordinated Debentures,
Series ___ (the "Debentures"), issued under the Company's Indenture, dated as of
December 1, 1995, to The First National Bank of Chicago, 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.
In rendering our opinions below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies or specimens. We have also assumed the legal capacity
for all purposes relevant hereto of all natural persons and, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or other) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or other), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
on certificates of officers of the Company and of public officials.
Certain of our opinions expressed below as to factual matters
are qualified as being limited "to the best of our knowledge" or by other words
to the same or similar effect. Such words, as used herein, mean the information
known to ___________, ___________ and __________, the attorneys who have
represented you in connection with the transactions contemplated by the
Underwriting Agreement. In rendering such opinions, we have not conducted any
independent investigation or consulted with other attorneys in our firm with
respect to the matters covered thereby.
On the basis of such examination, we adivse you that, in our
opinion:
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 requisite
corporate action of the Company, and has been duly executed and delivered by the
Company and (assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) consititues a valid and legally binding obligation of
the Company 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;
4. the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended ("Trust Indenture Act");
5. the Debentures have been duly authorized and executed by the Company
and, when authenticated by the Trustee in accordance with the terms of the
Indenture, and delivered to and paid for by you in accordance with the terms of
the Underwriting Agreement, will constitute valid and 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;
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 Company's registration statements on Form S-3 (File Nos. 33-62259
and 333-_____) relating to the Debentures (collectively, the "Registration
Statement") have 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; and
8. 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.
Our opinions expressed above are limited to the laws of the
States of Iowa and New York and the federal laws of the United States of
America.
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,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
[Letterhead of ▇▇▇▇▇▇ & Whitney LLP]
[Date]
Re: IES Utilities Inc.
$ % Subordinated Debentures,
Series
Ladies and Gentlemen:
This letter relates to the registration under the Securities
Act of 1933, as amended (the "Act"), and offering of $__________ in aggregate
principal amount of ___% Subordinated Debentures, Series ____ (the "Debentures")
of IES Utilities Inc., an Iowa corporation (the "Company"). The registration
statements of the Company on Form S-3 (File Nos. 33-62259 and 333-_____)
(collectively, the "Registration Statement") was filed in accordance with
procedures of the Securities and Exchange Commission (the "Commission")
permitting a delayed or continuous offering of securities pursuant thereto and,
if appropriate, a post-effective amendment or prospectus supplement that
provides information relating to the terms of the securities and the manner of
their distribution. The Debentures have been offered by the Prospectus dated
__________ (the "Prospectus"), as supplemented by the Prospectus Supplement
dated __________ (the "Prospectus Supplement"), which updates or supplements
certain information contained in the Prospectus. The Prospectus, as so
supplemented, does not necessarily contain a current description of the
Company's business and affairs since, pursuant to form S-3, it incorporates by
reference certain documents filed with the Commission which contain information
as of various dates.
In accordance with our understanding with you as to the scope
of our services under the circumstances applicable to the offering of the
Debentures, we reviewed the Registration Statement, the Prospectus and the
Prospectus Supplement, participated in the discussions with your representatives
and those of the Company, its counsel and its independent public accountants and
advised you as to the requirements of the Act and the applicable rules and
regulations thereunder. Between the date of the Prospectus Supplement and the
date of delivery of this letter, we participated in further discussions with
your representatives and those of the Company, its counsel and its independent
public accountants regarding the contents of certain portions of the Prospectus
and the Prospectus Supplement and certain related matters, and reviewed
certificates of certain officers of the Company, opinions addressed to you from
counsel to the Company and letters addressed to you from independent public
accountants of the Company.
On the basis of the information that was reviewed by us in the
course of the performance of the services referred to above, in our opinion (i)
the Registration Statement, as of its effective date, and the Prospectus, as
supplemented by the Prospectus Supplement as of the date of the Prospectus
Supplement, complied as to form in all material respects with the requirements
of the Act and the Trust Indenture Act of 1939, as amended, and the respective,
applicable rules and regulations thereunder (except that we express no opinion
as to financial statements and financial or statistical data contained therein
or as to the Form T-1 filed as an Exhibit to the Registration Statement) (ii)
the summaries of the terms of the Indenture (as such term is defined in the
Prospectus) and the Debentures contained in the Registration Statement, the
Prospectus and the Prospectus Supplement fairly describe in all material
respects the provisions thereof required to be described in the Registration
Statement. Further, nothing that came to our attention in the course of such
review has caused us to believe that the Registration Statement, on such
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as supplemented by
the Prospectus Supplement, as of the date of the Prospectus Supplement and as of
the date and time of delivery of this letter, 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 light of the circumstances
under which they were made, not misleading.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such, however, that we do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement. Also, we do
not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement, the Prospectus or the
Prospectus Supplement, or as to the statement of the eligibility and
qualification of the Trustee under the Indenture under which the Debentures are
being issued.
This letter is furnished by us as counsel to you solely for
your benefit and may not be relied upon by, nor may copies be delivered to, any
other person without our prior written consent.
Very truly yours,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
EXHIBIT D
Pursuant to subsection (e) of Section 8 of the Underwriting Agreement,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ___________ 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 _____ 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.