Execution Copy
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ALLIANT ENERGY CORPORATION
(a Wisconsin corporation)
15,000,000 SHARES OF COMMON STOCK
PURCHASE AGREEMENT
Dated: July 1, 2003
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Table of Contents
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Page
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SECTION 1. Representations and Warranties .......................................... 2
(a) Representations and Warranties by the Company ........................... 2
(i) Compliance with Registration Requirements ....................... 3
(ii) Incorporated Documents .......................................... 3
(iii) Independent Accountants ......................................... 4
(iv) Financial Statements ............................................ 4
(v) No Material Adverse Change in Business .......................... 4
(vi) Good Standing of the Company .................................... 5
(vii) Good Standing of Designated Subsidiaries ........................ 5
(viii) Capitalization .................................................. 5
(ix) Authorization of Agreement ...................................... 6
(x) Authorization and Description of Securities ..................... 6
(xi) Absence of Defaults and Conflicts ............................... 6
(xii) Absence of Labor Dispute ........................................ 7
(xiii) Absence of Proceedings .......................................... 7
(xiv) Accuracy of Exhibits ............................................ 7
(xvii) Absence of Further Requirements ................................. 7
(xviii) Possession of Licenses and Permits .............................. 7
(xix) Title to Property ............................................... 8
(xx) Investment Company Act .......................................... 8
(xxi) Environmental Laws .............................................. 8
(b) Officer's Certificates .................................................. 9
SECTION 2. Sale and Delivery to Underwriters; Closing .............................. 9
(a) Initial Securities ...................................................... 9
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(b) Option Securities ....................................................... 9
(c) Payment ................................................................. 9
(d) Denominations; Registration ............................................. 10
SECTION 3. Covenants of the Company ................................................ 10
(a) Compliance with Securities Regulations and Commission Requests .......... 10
(b) Filing of Amendments .................................................... 11
(c) Delivery of Registration Statements ..................................... 11
(d) Delivery of Prospectuses ................................................ 11
(e) Continued Compliance with Securities Laws ............................... 11
(f) Blue Sky Qualifications ................................................. 12
(g) Rule 158 ................................................................ 12
(h) Use of Proceeds ......................................................... 12
(i) Listing ................................................................. 12
(j) Restriction on Sale of Securities ....................................... 12
(k) Reporting Requirements .................................................. 13
(l) 1935 Act Filings ........................................................ 13
SECTION 4. Payment of Expenses ..................................................... 13
(a) Expenses ................................................................ 13
(b) Termination of Agreement ................................................ 13
SECTION 5. Conditions of Underwriters' Obligations ................................. 14
(a) Effectiveness of Registration Statement ................................. 14
(b) Opinion of Counsel for Company .......................................... 14
(c) Opinion of Counsel for Underwriters ..................................... 14
(d) Officers' Certificate ................................................... 14
(e) Accountant's Comfort Letter ............................................. 15
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(f) Bring-down Comfort Letter ............................................... 15
(g) Approval of Listing ..................................................... 15
(h) No Objection ............................................................ 15
(j) Conditions to Purchase of Option Securities ............................. 15
(i) Officers' Certificate ........................................... 15
(ii) Opinion of Counsel for Company .................................. 16
(iii) Opinion of Counsel for Underwriters ............................. 16
(iv) Bring-down Comfort Letter ....................................... 16
(k) Additional Documents .................................................... 16
(l) Termination of Agreement ................................................ 16
SECTION 6. Indemnification ......................................................... 16
(a) Indemnification of Underwriters ......................................... 16
(b) Indemnification of Company, Directors and Officers ...................... 17
(c) Actions against Parties; Notification ................................... 18
(d) Settlement without Consent if Failure to Reimburse ...................... 18
SECTION 7. Contribution ............................................................ 19
SECTION 8. Representations, Warranties and Agreements to Survive Delivery .......... 20
SECTION 9. Termination of Agreement ................................................ 20
(a) Termination; General .................................................... 20
(b) Liabilities ............................................................. 21
SECTION 10. Default by One or More of the Underwriters .............................. 21
SECTION 11. Notices ................................................................. 21
SECTION 12. Parties ................................................................. 22
SECTION 13. GOVERNING LAW AND TIME .................................................. 22
SECTION 14. Effect of Headings ...................................................... 22
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SECTION 15. Counterparts ............................................................ 22
SCHEDULES
Schedule A - List of Underwriters
Schedule B - Pricing Information
Schedule C - List of Designated Subsidiaries
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
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ALLIANT ENERGY CORPORATION
(a Wisconsin corporation)
15,000,000 SHARES OF COMMON STOCK
(par value $0.01 per share)
PURCHASE AGREEMENT
July 1, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
Wachovia Capital Markets, LLC
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
as Representatives of the several Underwriters
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Alliant Energy Corporation, a Wisconsin corporation (the "Company"),
confirms its agreement with Banc of America Securities LLC ("Banc of America"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇, Banc of America, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ Brothers
Inc., Wachovia Capital Markets, LLC and The ▇▇▇▇▇▇▇▇ Capital Group, L.P. are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $0.01 per share, of the Company ("Common
Stock") set forth in said Schedule A, and with respect to the grant by the
Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 2,250,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 15,000,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 2,250,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities."
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-104269) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission, and the Company has filed such post-effective amendments thereto
(or such preliminary prospectus or preliminary supplemental prospectus) as may
be required under the 1933 Act and the 1933 Act Regulations, and each such
post-effective amendment has been declared effective by the Commission. Such
registration statement is referred to herein as the "Registration Statement;"
and the final prospectus and the final prospectus supplement relating to the
offering of the Securities, in the forms first furnished to the Underwriters by
the Company for use in connection with the offering of the Securities, are
collectively referred to herein as the "Prospectus;" provided, however, that all
references to the "Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), filed prior to
the applicable date; provided, further, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then all references to
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
(i) any prospectus used before the Registration Statement became effective and
(ii) any prospectus that omitted the information to be included upon pricing in
a form of prospectus filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations and was used after such effectiveness and prior to the
initial delivery of the Prospectus to the Underwriters by the Company. For
purposes of this Agreement, all references to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement to any of
the foregoing shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which are "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which are incorporated by
reference, as of such applicable date, in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be; and all references in this
Agreement to the Registration Agreement, amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference, as of such applicable date, in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
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(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied or will comply, as the case may be, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
or will not, as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through Banc of America and ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto) or Prospectus (or any
amendment thereto).
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents.
(1) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied or
will comply, as the case may be, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934
Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), as applicable, and, when read together with
the other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and
at the Closing Time (and
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if any Option Securities are purchased, at the Date of Delivery), did
not or will not, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(2) The description of regulatory matters to which the Company
and its subsidiaries are subject, as disclosed in the Company's
filings with the Commission under the 1934 Act and the 1934 Act
Regulations and as incorporated by reference into the Registration
Statement, is true and correct in all material respects, except to the
extent such description in any specific filing has been superseded,
updated or supplemented by such description in a subsequent filing
under the 1934 Act or the 1934 Act Regulations made prior to the date
hereof or by such description in the Prospectus.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants with respect to the Company
and its subsidiaries within the meaning of Regulation S-X under the 1933
Act.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, shareowners' equity and cash
flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in all material
respects in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information
included in the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, in the
earnings or business affairs of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business nor has there been any developments involving a prospective
material adverse change of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company
and its subsidiaries, and (C) except for regular dividends on the Common
Stock in amounts per share that are consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
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(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation under the laws of the
State of Wisconsin and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(vii) Good Standing of Designated Subsidiaries. Each "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X of the Company is
listed on Schedule C hereto (each subsidiary on Schedule C shall be
referred to herein as a "Designated Subsidiary" and, collectively, as the
"Designated Subsidiaries"). Each Designated Subsidiary has been duly
organized and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each such Designated Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable (except, in the case of Designated Subsidiaries that are
Wisconsin corporations, for certain statutory liabilities that may be
imposed by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law
(the "WBCL") for unpaid employee wages) and (except for directors'
qualifying shares and except as otherwise set forth in the Registration
Statement) is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and none of the outstanding shares of capital stock of any
Designated Subsidiary was issued in violation of any preemptive or similar
rights of any securityholder of such Designated Subsidiary. The only
subsidiaries of the Company are (a) the Designated Subsidiaries listed on
Schedule C hereto and (b) certain other subsidiaries which, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X.
(viii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to existing
reservations, agreements or employee benefit plans, pursuant to the
exercise of convertible securities or options outstanding on the date
hereof or pursuant to any dividend reinvestment plan). All of the issued
and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable (except
for certain statutory liabilities that may be imposed by Section
180.0622(2)(b) of the WBCL for unpaid employee wages); none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
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(ix) Authorization of Agreement. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
non-assessable (except for certain statutory liabilities that may be
imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee
wages); the Common Stock conforms in all material respects to all
statements relating thereto contained in the Prospectus and such
description conforms in all material respects to the rights set forth
in the instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a holder
(except for certain statutory liabilities that may be imposed by
Section 180.0622(2)(b) of the WBCL for unpaid employee wages); and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments") (except for such
violations or defaults that would not result in a Material Adverse
Effect); and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, singly or in the aggregate, would not
result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of (x) the charter or by-laws of the
Company or any of its subsidiaries (except for such conflicts,
breaches, defaults, events or liens, charges or encumbrances that would
not result in a Material Adverse Effect) or (y) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations (except for any such
violations with respect to this clause (y) as would not, individually
or in the aggregate, result in a Material Adverse Effect). As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf)
6
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any of its
subsidiaries.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any of its subsidiaries' respective principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect (A) the properties or assets of the
Company and its subsidiaries or (B) the consummation of the
transactions contemplated by this Agreement or the performance by the
Company of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required except that this Agreement will be
filed as an exhibit to a Current Report on Form 8-K which shall be
filed with the Commission in accordance with the 1934 Act and the 1934
Act Regulations prior to the filing of the Prospectus.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws and the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"), such 1935 Act filings
to be made by the Company.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except
where the failure to possess any such Governmental Licenses would not
have a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms
7
and conditions of all such Governmental Licenses, except where the
failure so to possess or comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any of its subsidiaries has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or any of its subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, except where such
would not have a Material Adverse Effect.
(xviii) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be an "investment company" or an entity
"controlled" by an investment company as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xix) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are
8
each in compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company or
any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations, warranties
and agreements herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Company hereby grants an option to
the Underwriters, severally and not jointly, to purchase up to an additional
2,250,000 shares of Common Stock at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Representatives to
the Company setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven nor earlier than two full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of the
Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called the "Closing
Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Banc of America, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
two full business days before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in New York, New York not later than noon (Eastern time) on the
last business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will notify the
Representatives immediately and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such
10
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus.
The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of
any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters
shall reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, copies (one of which shall be manually
signed) of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and copies (one of which shall be
manually signed) of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy
of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus and final prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Underwriters
or for the Company, to amend the
11
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the reasonable opinion of such counsel, at
any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the Representatives may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect
the listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of Banc of America and ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any
of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in
12
part, directly or indirectly, the economic consequence of ownership of
the Common Stock, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Securities to be sold hereunder, (B) any
shares of Common Stock issued by the Company upon the exercise of an
option or warrant or the conversion of a security outstanding on the
date hereof, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit
plans of the Company or (D) any shares of Common Stock issued pursuant
to any non-employee director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(l) 1935 Act Filings. The Company, shall timely file all
notifications, forms and reports that may be required under the 1935
Act so as to permit the completion of the distribution and sale of the
Securities as contemplated in this Agreement and in the Prospectus
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the reproduction and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto (provided that counsel fees in connection therewith do not exceed
$5,000), (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the fees and expenses of any transfer agent or
registrar for the Securities, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities, and (ix) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the
13
reasonable fees and disbursements of counsel for the Underwriters (provided that
such out-of-pocket expenses, fees and disbursements do not exceed $200,000).
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy in all
material respects of the representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance in all material respects by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
the information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations shall have been filed with the Commission in accordance
with Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of
the Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters to the effect set forth in Exhibit A hereto. In
rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its
subsidiaries and of public officials.
(c) Opinion of Counsel for Underwriters. At the Closing Time,
the Representatives shall have received the favorable opinion, dated as
of the Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives. In
rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its
subsidiaries and of public officials.
(d) Officers' Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
nor has there been any developments involving a prospective material
adverse change of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
14
business, and the Representatives shall have received a certificate of
the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of the
Closing Time, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect that (i) there has
been no such material adverse change or any developments involving a
prospective material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Representatives shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from Deloitte & Touche LLP a
letter, dated as of the Closing Time, together with signed or
reproduced copies of such letter for each of the other Underwriters, to
the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) Approval of Listing. At the Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(i) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
15
(ii) Opinion of Counsel for Company. The favorable opinion of ▇▇▇▇▇
& Lardner, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Deloitte & Touche LLP,
in form and substance satisfactory to the Representatives and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Representatives pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(j) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions (including but not limited to those referenced
above) as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Company at any time at or prior to the Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or
16
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Banc of America and ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Banc of America and ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); and provided,
further that this indemnity agreement shall not inure to the benefit of any
Underwriter or any person who controls such Underwriter on account of any such
loss, liability, claim, damage or expense arising out of any such defect or
alleged defect in any preliminary prospectus if a copy of the Prospectus
(exclusive of the documents incorporated by reference therein) shall not have
been given or sent by such Underwriter with or prior to the written confirmation
of the sale involved to the extent that (i) the Prospectus would have cured such
defect or alleged defect and (ii) sufficient quantities of the Prospectus were
timely made available to such Underwriter.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Banc of
America and ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
17
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Banc of America and
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. In
addition, the indemnifying party shall be entitled to, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense of any claim or action brought against an indemnified party with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ one counsel (in addition to
local counsel) to represent them and those other Underwriters and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under this Section 6 if, in the
reasonable judgment of the Representatives, either (i) there is an actual or
potential conflict between the position of the Company on the one hand and the
Underwriters on the other hand or (ii) there may be defenses available to it or
them that are different from or additional to those available to the Company (in
any of which events the Company shall not have the right to direct the defense
of such action on behalf of the Representatives with respect to such different
defenses), in any of which events such reasonable fees and expenses shall be
borne by the Company. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such
18
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions, which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities
19
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 any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, in the
earnings or business affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, nor
have there been any developments involving a prospective material adverse change
of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred after
the date hereof and prior to the Closing Time any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers,
20
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or a Date of Delivery, as the
case may be, to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation
of the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone the Closing Time or the relevant Date of Delivery, as the case
may be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing
21
Director; and notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND ALL DISPUTES,
CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR A BREACH
HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall constitute a single instrument.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
ALLIANT ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President,
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
WACHOVIA CAPITAL MARKETS, LLC
THE ▇▇▇▇▇▇▇▇ CAPITAL GROUP, L.P.
By: BANC OF AMERICA SECURITIES LLC
By: /s/ S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Managing Director
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
23
SCHEDULE A
Name of Underwriter Number of
------------------- Initial
Securities
Banc of America Securities LLC ..................................... 4,800,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ........................................... 4,800,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated ................................. 1,650,000
▇▇▇▇▇▇ Brothers Inc. ............................................... 1,650,000
Wachovia Capital Markets, LLC ...................................... 1,650,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. ................................... 450,000
----------
Total .............................................................. 15,000.000
==========
SCHEDULE B
ALLIANT ENERGY CORPORATION
15,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
The initial public offering price per share for the
Securities, determined as provided in Section 2, shall be $19.25.
The purchase price per share for the Securities to be paid
by the several Underwriters shall be $18.48, being an amount equal to
the initial public offering price set forth above less $0.77 per
share; provided that the purchase price per share for any Option
Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities.
SCHEDULE C
Interstate Power and Light Company
Wisconsin Power and Light Company
Alliant Energy Resources, Inc.
Alliant Energy International, Inc.
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
The Company is validly existing as a corporation under the laws of the
State of Wisconsin.
The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Purchase Agreement.
The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each domestic jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
The authorized capital stock of the Company is as set forth in the
Prospectus; the shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable (except for certain statutory liabilities that may be imposed by
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law (the "WBCL")
for unpaid employee wages; and to the best of our knowledge, none of the
outstanding shares of capital stock of the Company were issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreement and, when issued and delivered
by the Company pursuant to the Purchase Agreement against payment of the
consideration set forth in the Purchase Agreement, will be validly issued and
fully paid and non-assessable (except for certain statutory liabilities that may
be imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee wages).
To the best of our knowledge, the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder of the
Company.
Each Designated Subsidiary is validly existing as a corporation under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each domestic jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement and, to the best of our
knowledge and information, all of the issued and outstanding common stock of
each Designated Subsidiary is owned by the Company, directly or through
subsidiaries, and the Company owns no other capital stock of any Designated
Subsidiary, directly or through subsidiaries.
The Company has all requisite corporate power and authority to execute
and deliver the Purchase Agreement and to perform its obligations thereunder.
The Purchase Agreement has been duly authorized, executed and delivered by the
Company.
The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
The Registration Statement, including any Rule 462(b) Registration
Statement, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements,
statistical data and supporting schedules included therein or omitted therefrom,
as to which we need express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion), when they were filed with
the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable requirements of the WBCL, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the New York Stock Exchange.
To the best of our knowledge based on our discussions with officers of
the Company and other than as set forth in the Prospectus, there is not pending
or threatened any action, suit, proceeding, inquiry or investigation, to which
the Company or any subsidiary thereof is a party, or to which the property of
the Company or any subsidiary thereof is subject, before or brought by any court
or governmental agency or body, which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be expected to materially
and adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
The information in the Prospectus under "Description of Capital Stock"
and in the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's charter
and by-laws or legal proceedings, or legal conclusions, has been reviewed by us
and is correct in all material respects.
All descriptions in the Registration Statement of franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments to which the Company or any of its subsidiaries are a party, to the
extent that they describe legal matters, are accurate in all
material respects; and to the best of our knowledge, there are no such documents
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
To the best of our knowledge and based upon our discussions with
officers of the Company, neither the Company nor any Designated Subsidiary is in
violation of its charter or by-laws and no default by the Company or any
Designated Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any domestic court or governmental
authority or agency, (other than such as have already been obtained and such as
may be required under the applicable securities laws of the various
jurisdictions in which the Securities will be offered or sold and the 1935 Act
(solely with respect to filings required to be made with the Commission
subsequent to the Closing Time), as to which we need express no opinion) is
necessary or required in connection with the due authorization, execution and
delivery of the Purchase Agreement or for the offering, issuance, sale or
delivery of the Securities.
The execution, delivery and performance of the Purchase Agreement and
the consummation of the transactions contemplated in the Purchase Agreement and
in the Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by the Company
with its obligations under the Purchase Agreement do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Designated Subsidiary pursuant to those agreements set forth on
Schedule A hereto (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or by-laws
of the Company or any Designated Subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to us, of any U.S.
government, government instrumentality or court, having jurisdiction over the
Company or any Designated Subsidiary or any of their respective properties,
assets or operations.
The Company is not an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the 1940 Act.
The Rights under the Company's Rights Agreement to which holders of the
Securities will be entitled have been duly authorized and validly issued when
issued with the Common Stock.
The issuance of the Securities complies with all requirements of the
Securities and Exchange Commission's Release No. 35-27448, 70-9891, dated as of
October 3, 2001.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment or supplement thereto (except for
financial statements and schedules and other financial or statistical data
included or incorporated by reference therein or omitted therefrom, as to which
we need make no statement), at the time such Registration Statement or any such
amendment 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 or any
amendment or supplement thereto (except for financial statements and schedules
and other financial or statistical data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes 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.
In rendering this opinion, we relied as to matters of fact (but not as
to legal conclusions), to the extent we deemed proper, on certificates of
responsible officers of the Company and public officials.
SCHEDULE A TO THE FORM OF OPINION OF COMPANY'S COUNSEL
1. Indenture of Mortgage or Deed of Trust dated August 1, 1941, between
Wisconsin Power and Light Company ("WP&L") and First Wisconsin Trust
Company (n/k/a U.S. Bank National Association) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇, successor), as Trustees.
2. Rights Agreement, dated January 20, 1999, between AEC (formerly
Interstate Energy Corporation) and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.,
successor.
3. Indenture, dated as of June 20, 1997, between WP&L and Firstar Trust
Company (n/k/a U.S. Bank National Association), as Trustee, relating to
debt securities.
4. Officers' Certificate, dated as of June 25, 1997, creating the 7%
debentures due June 15, 2007 of WP&L.
5. Officers' Certificate, dated as of October 27, 1998, creating the 5.70%
debentures due October 15, 2008 of WP&L.
6. Officers' Certificate, dated as of March 1, 2000, creating the 7-5/8%
debentures due March 1, 2010 of WP&L.
7. Credit Agreement, dated as of October 11, 2002, among WP&L, the Banks
named therein and Citibank, N.A., as administrative agent.
8. Indenture of Mortgage and Deed of Trust, dated as of September 1, 1993,
between Interstate Power and Light Company ("IP&L") (formerly Iowa
Electric Light and Power Company ("IE")) and the First National Bank of
Chicago (Bank One Trust Company, National Association, successor), as
Trustee ("1993 Indenture").
9. First through Fifth Supplemental Indentures to IP&L's 1993 Indenture.
10. Indenture of Mortgage and Deed of Trust, dated as of August 1, 1940,
between IP&L (formerly IE) and the First National Bank of Chicago (Bank
One Trust Company, National Association, successor), Trustee ("1940
Indenture").
11. First through Sixty-Third Supplemental Indentures to IP&L's ▇▇▇▇
▇▇▇▇▇▇▇▇▇.
12. Indenture or Deed of Trust, dated as of February 1, 1923, between IP&L
(formerly IES Utilities Inc. ("IESU"), successor to Iowa Southern
Utilities Company ("IS") as a result of the merger of IS and IE), and
The Northern Trust Company (Bank One Trust Company, National
Association, successor) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
successor), as Trustees ("1923 Indenture").
13. First through Twenty-Fourth Supplemental Indentures, dated May 1, 1940,
through December 1, 1994, to IP&L's 1923 Indenture.
14. Indenture (for Unsecured Subordinated Debt Securities), dated as of
December 1, 1995, between IP&L (formerly IESU) and The First National
Bank of Chicago (Bank One Trust Company, National Association,
successor), as Trustee.
15. Indenture (for Senior Unsecured Debt Securities), dated as of August 1,
1997, between IP&L (formerly IESU) and The First National Bank of
Chicago (Bank of One Trust Company, National Association, successor),
as Trustee.
16. Officers' Certificate, dated as of August 4, 1997, creating IP&L's
6-5/8% Senior Debentures, Series A, due 2009.
17. Officers' Certificate, dated as of March 6, 2001, creating IP&L's
6-3/4% Senior Debentures, Series B, due 2011.
18. Indenture of IP&L (successor to Interstate Power Company ("IPC") to
JPMorgan Chase Bank (formerly The Chase Manhattan Bank) and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, successor), as Trustees, dated January 1,
1948 securing First Mortgage Bonds ("1948 Indenture").
19. First through Twenty-First Supplemental Indentures, dated January 1,
1948, through December 31, 2001, to IP&L's ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
20. Credit Agreement, dated as of October 11, 2002, among IP&L, the Banks
set forth therein, and Citibank, NA, as Administrative Agent.
21. Second Amended and Restated Credit Agreement dated as of September 17,
1987 between ▇▇▇▇▇▇ Fuel, Inc. and the First National Bank of Chicago
(Bank One Trust, successor) and the Amended and Restated Consent and
Agreement dated as of September 17, 1987 by IP&L (formerly IESU).
22. Indenture, dated as of November 4, 1999, among Alliant Energy
Resources, Inc. ("AER"), Alliant Energy Corporation ("AEC"), as
Guarantor, and Firstar Bank, N.A., as Trustee.
23. First Supplemental Indenture, dated as of November 4, 1999, among AER,
AEC, as Guarantor, and Firstar Bank, N.A. (n/k/a U.S. Bank National
Association), as Trustee.
24. Second Supplemental Indenture, dated as of February 1, 2000, among AER,
AEC, as Guarantor, and Firstar Bank, N.A. (n/k/a U.S. Bank National
Association), as Trustee.
25. Third Supplemental Indenture, dated as of November 15, 2001, among AER,
AEC, as Guarantor, and Firstar Bank, N.A. (n/k/a U.S. Bank National
Association), as Trustee.
26. Fourth Supplemental Indenture, dated as of December 26, 2002, among
AER, AEC, as Guarantor, and U.S. Bank National Association, as Trustee.
27. 364-Day Credit Agreement, dated as of October 11, 2002, among AEC, the
Banks named therein and Bank One, N.A., as administrative agent.
28. Credit Agreement dated as of December 20, 2002, among ▇▇▇▇▇▇▇ Petroleum
Corporation, the financial institutions listed therein, Bank One, NA
and Wachovia Bank, National Asociation.
29. First Amendment to Credit Agreement dated as of January 7, 2003, among
▇▇▇▇▇▇▇ Petroleum Corporation, Bank One, NA and the financial
institutions party thereto,.
