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(d)
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Exhibits
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Exhibit No.
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|
Description
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1.1
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|
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4.1
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5.1
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|
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5.2
|
|
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23.1
|
|
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23.2
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|
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99.1
|
|
|
104
|
|
Cover Page Interactive Data File (embedded within the Inline XBRL document).
|
Date: September 26, 2019
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By:/s/ Robert J. Durian
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Robert J. Durian
|
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Senior Vice President and Chief Financial Officer
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Date: September 26, 2019
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By:/s/ Robert J. Durian
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Robert J. Durian
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Senior Vice President and Chief Financial Officer
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Page
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SECTION 1. Representations and Warranties
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2
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(a) Representations and Warranties by the Company
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2
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(i) Registration Statement, Prospectus and Disclosure at Time of Sale
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3
|
(ii) Company is a Well-Known Seasoned Issuer
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5
|
(iii) Incorporated Documents
|
5
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(iv) Independent Accountants
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6
|
(v) Financial Statements
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6
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(vi) No Material Adverse Change in Business
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6
|
(vii) Good Standing of the Company
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7
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(viii) No Significant Subsidiaries
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7
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(ix) Capitalization
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7
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(x) Authorization of Agreement
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7
|
(xi) Authorization of the Base Indenture
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8
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(xii) Authorization of the Securities
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8
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(xiii) Description of the Securities and the Indenture
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8
|
(xiv) Absence of Defaults and Conflicts
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8
|
(xv) Absence of Labor Disputes
|
9
|
(xvi) Absence of Proceedings
|
9
|
(xvii) Accuracy of Exhibits
|
10
|
(xviii) Absence of Further Requirements
|
10
|
(xix) Possession of Licenses and Permits
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10
|
(xx) Title to Property
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11
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(xxi) Investment Company Act
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11
|
|
|
i
|
|
|
Page
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(xxii) Environmental Laws
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11
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(xxiii) Accounting Controls and Disclosure Controls
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12
|
(xxiv) Foreign Corrupt Practices Act
|
13
|
(xxv) Money Laundering Laws
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13
|
(xxvi) OFAC
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14
|
(xxvii) No Price Stabilization or Manipulation
|
14
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(b) Officer’s Certificates
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14
|
SECTION 2. Sale and Delivery to Underwriters; Closing
|
14
|
(a) The Securities
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14
|
(b) Payment
|
15
|
(c) Denominations; Registration
|
15
|
SECTION 3. Covenants of the Company
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15
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(a) Compliance with Securities Regulations and Commission Requests
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15
|
(b) Filing of Amendments
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16
|
(c) Delivery of Registration Statements
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16
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(d) Delivery of Prospectuses
|
16
|
(e) Continued Compliance with Securities Laws
|
16
|
(f) Blue Sky Qualifications
|
17
|
(g) Rule 158
|
17
|
(h) Use of Proceeds
|
17
|
(i) Restriction on Sale of Securities
|
17
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(j) Reporting Requirements
|
18
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(k) 2005 Act Filings
|
18
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(l) Rating of Securities
|
18
|
(m) DTC
|
18
|
|
|
ii
|
|
|
Page
|
(n) Compliance with Regulatory Approvals
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18
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(o) Issuer Free Writing Prospectus
|
18
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(p) Final Term Sheet
|
18
|
(q) Notice of Inability to Use Automatic Shelf Registration Statement Form
|
19
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(r) Filing Fees
|
19
|
SECTION 4. Payment of Expenses
|
19
|
(a) Expenses
|
19
|
(b) Termination of Agreement
|
19
|
SECTION 5. Conditions of Underwriters’ Obligations
|
20
|
(a) Effectiveness of Registration Statement
|
20
|
(b) Opinion of Counsel for Company
|
20
|
(c) Letter from Counsel for Company
|
20
|
(d) Opinion of Counsel for Underwriters
|
20
|
(e) Officers’ Certificate
|
21
|
(f) Accountant’s Comfort Letter
|
21
|
(g) Bring-down Comfort Letter
|
21
|
(h) Maintenance of Rating
|
22
|
(i) Additional Documents
|
22
|
(j) Termination of Agreement
|
22
|
SECTION 6. Indemnification
|
22
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(a) Indemnification of Underwriters
|
22
|
(b) Indemnification of Company, Directors and Officers
|
23
|
(c) Actions against Parties; Notification
|
23
|
(d) Settlement without Consent if Failure to Reimburse
|
24
|
SECTION 7. Contribution
|
25
|
|
|
iii
|
|
|
Page
|
SECTION 8. Representations, Warranties and Agreements to Survive Delivery
|
26
|
SECTION 9. Termination of Agreement
|
26
|
(a) Termination; General
|
27
|
(b) Liabilities
|
27
|
SECTION 10. Default by One or More of the Underwriters
|
27
|
SECTION 11. Certain Agreements of the Underwriters
|
27
|
SECTION 12. Notices
|
28
|
SECTION 13. Parties
|
29
|
SECTION 14. No Fiduciary Duty
|
29
|
SECTION 15. Governing Law and Time
|
29
|
SECTION 16. Patriot Act
|
30
|
SECTION 17. Effect of Headings
|
31
|
SECTION 18. Counterparts
|
31
|
|
|
|
|
SCHEDULES
|
|
Schedule A - List of Underwriters’ Purchase Amounts
|
|
Schedule B - Issuer Free Writing Prospectuses contained in the General Disclosure Package
|
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Schedule C - Pricing Information
|
|
Schedule D - Final Term Sheet
|
|
Schedule E - Underwriter Information
|
|
|
|
iv
|
|
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 Applicable Time referred to in Section 1(a)(i) hereof and as of the Closing Time referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows:
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(i)
|
Registration Statement, Prospectus and Disclosure at Time of Sale. The Company meets the requirements for use of Form S-3 under the 1933 Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 (“Rule 405”) of the 1933 Act Regulations, that automatically became effective not more than three years prior to the date hereof and no stop order suspending the effectiveness of the 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. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) (“Rule 401(g)(2)”) of the 1933 Act Regulations objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
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(ii)
|
Company is a Well-Known Seasoned Issuer. (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, by incorporated report filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”) or by form of prospectus) and (C) as of the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405.
|
(iii)
|
Incorporated Documents.
|
(iv)
|
Independent Accountants. Deloitte & Touche LLP, which has certified certain financial statements of the Company and its consolidated subsidiaries and delivered its report with respect to the audited financial statements of the Company and related schedule included in the Registration Statement, the Statutory Prospectus and the Prospectus, is an independent registered public accounting firm with respect to the Company and its subsidiaries as required by the 1933 Act and the rules of the Public Company Accounting Oversight Board.
|
(v)
|
Financial Statements. The financial statements included in the Registration Statement, the Statutory Prospectus 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 statements of income, changes in common equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules included in the Registration Statement, if any, 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 Statutory Prospectus and 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. The interactive data in eXtensible Business Reporting Language (“XBRL”) incorporated by reference into the Registration Statement, the Statutory Prospectus and the Prospectus present fairly in all material respects the information called for and was prepared in accordance with the Commission’s rules and guidelines applicable thereto.
|
(vi)
|
No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, 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 (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, $2.50 par value per share, of the Company and the 5.100% Series D Cumulative Perpetual Preferred Stock, $.01 par value per share, of the Company, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
|
(vii)
|
Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation under the laws of the State of Iowa and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the General Disclosure Package and 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.
|
(viii)
|
No Significant Subsidiaries. The Company has no “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X.
|
(ix)
|
Capitalization. The issued and outstanding capital stock of the Company as of the date hereof is 13,370,788 shares of common stock and 8,000,000 shares of the Company’s 5.100% Series D Cumulative Perpetual Preferred Stock (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to existing reservations, agreements or employee benefit plans, or 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 and 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. As of the date hereof, except for 8,000,000 shares of the Company’s 5.100% Series D Cumulative Perpetual Preferred Stock, all of the issued and outstanding shares of the capital stock of the Company are owned by Alliant Energy Corporation, a Wisconsin corporation (the “Parent”), free and clear of all liens, encumbrances, equities or claims. Immediately prior to the Closing Time, except for 8,000,000 shares of the Company’s 5.100% Series D Cumulative Perpetual Preferred Stock, all of the issued and outstanding shares of capital stock of the Company will be owned directly by the Parent, free and clear of all liens, encumbrances, equities or claims. The Parent is a “holding company” as defined under the Public Utility Holding Company Act of 2005 (the “2005 Act”). The Company is a “subsidiary company” within the Alliant Energy Corporation “holding company system,” each as defined under the 2005 Act.
|
(x)
|
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.
|
(xi)
|
Authorization of the Base Indenture. The Base Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act and constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except (A) as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (B) as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
|
(xii)
|
Authorization of the Securities. The Securities have been duly authorized and, at the Closing Time, will have been duly executed by the Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided for in this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and will be in the form contemplated by, and entitled to the benefits of, the Indenture.
|
(xiii)
|
Description of the Securities and the Indenture. The statements relating to the Securities and the Indenture contained in the Prospectus and the General Disclosure Package conform, respectively, in all material respects to the terms of the Securities and the Indenture.
|
(xiv)
|
Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its articles of incorporation or bylaws, each as amended or (B) 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 any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, the Agreements
|
(xv)
|
Absence of Labor Disputes. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, which would reasonably be expected to result in a Material Adverse Effect.
|
(xvi)
|
Absence of Proceedings. Except as disclosed in the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries which would reasonably be expected to result in a Material Adverse Effect, or which would 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 General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business of the Company and its subsidiaries, would not reasonably be expected to result in a Material Adverse Effect. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
|
(xvii)
|
Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package, 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, an opinion of Perkins Coie LLP with respect to the validity of the Securities and the Officer’s Certificate establishing the form and the terms of the Securities will be filed as exhibits 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.
|
(xviii)
|
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 or for the due execution, delivery and performance of the Indenture by the Company, except (A) such as have been already obtained, (B) such as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws, and (C) such as may be required by the 2005 Act, solely with respect to the filing of a Report of Securities Issued required to be made with the Federal Energy Regulatory Commission subsequent to the Closing Time (such 2005 Act filings to be made by the Company).
|
(xix)
|
Possession of Licenses and Permits. Except as described in the General Disclosure Package and the Prospectus, (A) 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 in the manner described in the Prospectus except where the failure to possess any such Governmental Licenses would not have a Material Adverse Effect, (B) the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to possess or comply would not, singly or in the aggregate, have a Material Adverse Effect, (C) 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 (D) neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. Without limiting the foregoing, the Company has received an authorization letter from the Federal Energy Regulatory Commission (the “FERC Authorization”), dated November 14, 2017, authorizing the issuance of the Securities and such issuance is in compliance with the terms and conditions of such authorization. Such authorization is in full force and effect and has not been amended, supplemented or otherwise modified. No proceeding to review, suspend, limit, modify, restrict or revoke such authorization has been instituted.
|
(xx)
|
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 General Disclosure Package and 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 General Disclosure Package and 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.
|
(xxi)
|
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 General Disclosure Package and the Prospectus will not be required to register as an “investment company” under the Investment Company Act of 1940, as amended.
|
(xxii)
|
Environmental Laws. Except as described in the General Disclosure Package and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Laws 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.
|
(xxiii)
|
Accounting Controls and Disclosure Controls. The Company together with its consolidated subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (C) access to assets is permitted only in accordance with management’s general or specific authorization, (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (E) interactive data in XBRL included or incorporated by reference in the Registration Statement, the Statutory Prospectus and the Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
|
SECTION 2.
|
Sale and Delivery to Underwriters; Closing.
|
(a)
|
The Securities. On the basis of the representations, warranties and agreements herein contained and subject to the terms and conditions herein set forth, the Company, agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth in Schedule C, the aggregate principal amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
|
(b)
|
Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of the Company at 4902 North Biltmore Lane, Madison, Wisconsin 53718, 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 fifth business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”).
|
(c)
|
Denominations; Registration. Certificates for the Securities shall be in such denominations (in integral multiples of $1,000) as the Representatives may request in writing at least two full business days before the Closing Time and registered in the name of Cede & Co., as nominee of DTC. The certificates for the Securities 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.
|
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 with respect to the Registration Statement, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), 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, supplement or revision to the Registration Statement, preliminary prospectus or Prospectus if such amendment, supplement or revision relates to either any preliminary prospectus in connection with the offering of the Securities (including any 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 and 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 of the Registration Statement 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 of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement 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 EDGAR, except to the extent permitted by Regulation S-T.
|
(d)
|
Delivery of Prospectuses. The Company has delivered or will deliver to each Underwriter, without charge, as many copies of the 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 (the “Prospectus Delivery Period”), 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 EDGAR, 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 and the 1939 Act and the 1939 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 Registration Statement or amend or supplement the Prospectus in order that the Registration Statement or 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
|
(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 so long as required for the sale of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for such period.
|
(g)
|
Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
|
(h)
|
Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and the Prospectus under “Use of Proceeds.”
|
(i)
|
Restriction on Sale of Securities. From the date of the Prospectus until the Closing Time, the Company will not, without the prior written consent of the Representatives, (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 debt securities of the Company or any securities convertible into or exercisable or exchangeable for debt securities of the Company or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of debt securities of the Company, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Securities to be sold hereunder.
|
(j)
|
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.
|
(k)
|
2005 Act Filings. The Company shall timely file all notifications, forms and reports that may be required under the 2005 Act so as to permit the completion of the distribution and sale of the Securities as contemplated in this Agreement and in the Prospectus.
|
(l)
|
Rating of Securities. The Company shall take all reasonable action necessary to enable Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc. (“S&P”), and Moody’s Investors Service Inc. (“Moody’s”) to provide their respective credit ratings of the Securities.
|
(m)
|
DTC. The Company will cooperate with the Representatives and use its best efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC.
|
(n)
|
Compliance with Regulatory Approvals. The Company will comply with the terms and conditions of the final order of the FERC Authorization, as such authorization is amended from time to time until superseded, and shall timely file all notifications, forms and reports that may be required in connection therewith so as to permit the completion of the distribution and sale of the Securities as contemplated in this Agreement and in the Prospectus.
|
(o)
|
Issuer Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
|
(p)
|
Final Term Sheet. The Company will prepare a final term sheet containing only a description of the Securities, in a form attached hereto as Schedule D and approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) of the 1933 Act Regulations within the time required by such rule (such term sheet, the “Final Term Sheet”). The Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
|
(q)
|
Notice of Inability to Use Automatic Shelf Registration Statement Form. If, at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
|
(r)
|
Filing Fees. The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by and in accordance with Rules 456(b)(1) and 457(r) of the 1933 Act Regulations.
|
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, the Indenture, any Agreement among the 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 transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters and any charges of DTC in connection therewith, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for 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 Issuer Free Writing Prospectus, each preliminary prospectus and the Prospectus and any amendments or supplements thereto, (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities and (viii) any fees payable in connection with the rating of the Securities.
|
(b)
|
Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5 or clause (i) or (iii) of Section 9(a) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters (provided that such out-of-pocket expenses, fees and disbursements do not exceed $200,000).
|
(a)
|
Effectiveness of Registration Statement. The Registration Statement has become effective under the 1933 Act upon filing with the Commission 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 Rule 430B Information shall have been filed with the Commission in accordance with Rule 424(b) without reliance on Rule 424(b)(8).
|
(b)
|
Opinion of Counsel for Company. At the Closing Time, the Representatives shall have received the opinion, dated as of the Closing Time, of (i) Perkins Coie LLP, 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, in the form previously agreed to by the parties and (ii) Simmons Perrine Moyer Bergman PLC, local counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter each of the other Underwriters, in the form previously agreed to by the parties. At the Closing Time, the Representatives shall have received the opinion regarding certain state and local regulatory matters, dated as of the Closing Time, of Jake Blavat, Lead Attorney of 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, in the form previously agreed to by the parties. In rendering such opinions, each 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)
|
Letter from Counsel for Company. At the Closing Time, the Representatives shall have received a disclosure letter, dated as of the Closing Time, 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, of Perkins Coie LLP, counsel for the Company, in the form previously agreed to by the parties.
|
(d)
|
Opinion of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the opinion, dated as of the Closing Time, of Gibson, Dunn & Crutcher 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.
|
(e)
|
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 General Disclosure Package, 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 shall there have been any developments involving a prospective material adverse change of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and 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, (iv) the Company is not in default in the performance of any of the covenants to be performed by it under the Indenture and (v) 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.
|
(f)
|
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, the General Disclosure Package and the Prospectus.
|
(g)
|
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 (f) of this Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
|
(h)
|
Maintenance of Rating. At the Closing Time, the Securities shall be rated at least “Baal” by Moody’s and “A-” by S&P, and the Company shall have delivered to the Representatives a letter dated the Closing Time, from each such rating agency, or other evidence satisfactory to the Representatives, confirming that the Securities have such ratings; and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company’s other securities by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Section 3(a)(62) under the 1934 Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company’s other securities.
|
(i)
|
Additional Documents. At the Closing Time, 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.
|
(j)
|
Termination of Agreement. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 15 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, its affiliates, directors, officers and employees 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 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, any Issuer Free Writing 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 the Representatives), 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 clause (i) or (ii) above;
|
(b)
|
Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its affiliates, 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 6, 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, Issuer Free Writing 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 the Representatives expressly for use therein, it being understood and agreed that the only such information consists of the information contained in Schedule E hereto.
|
(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. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, 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
|
(d)
|
Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
|
SECTION 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 General Disclosure Package, any material adverse change in the condition, financial or otherwise, in the earnings or business affairs of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or any developments involving a prospective material adverse change of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (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, (iii) if trading in any securities of the Company or the Parent has been suspended or materially limited by the Commission or the New York Stock Exchange, or if trading generally on the NYSE American or the New York Stock Exchange or the Nasdaq Global 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 Financial Industry Regulatory Authority or any other governmental authority, (iv) if a banking moratorium has been declared by either Federal or New York authorities or (v) if a material disruption has occurred in securities settlement or clearance services in the United States.
|
(b)
|
Liabilities. If this Agreement is terminated pursuant to this Section 9, 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, 8 and 15 shall survive such termination and remain in full force and effect.
|
(a)
|
if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount 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 aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Securities to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
|
(a)
|
it has not used, authorized the use of, referred to or participated in the planning for use of, and will not use, authorize the use of, refer to or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 of the 1933 Act Regulations (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) of the 1933 Act Regulations) that was not included (including through incorporation by reference) in any preliminary prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule B or prepared pursuant to Section 3(o) above (including any electronic road show), (iii) any free writing prospectus prepared by such underwriter and approved by the Company in advance in writing, or (iv) any free writing prospectus prepared by or on behalf of such underwriter that would not be required to be filed with the Commission;
|
(b)
|
it has not and will not, without the prior written consent of the Company, use any free writing prospectus that contains the final terms of the Securities, unless such terms have previously been included in a free writing prospectus filed with the Commission; provided that the Underwriters may use a term sheet substantially in the form of Schedule D hereto without the consent of the Company; provided, further, that any Underwriter using such term sheet shall notify the Company, and provide a copy of such term sheet to the Company, prior to, or substantially concurrently with, the first use of such term sheet and, provided, further, that nothing in this Section 11 shall prevent the Underwriters from transmitting or otherwise making use of one or more customary “Bloomberg Screens” to offer the Securities or convey final pricing terms thereof that contain only information contained in the term sheet attached as Schedule D hereto;
|
(c)
|
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the U.K. Financial Services and Markets Act of 2000 (the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied with and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and
|
(d)
|
solely in connection with the offering of the Securities, it has not made and will not make an offer of, or otherwise made or will make available, the Securities to any retail investor in the European Economic Area. For the purposes of this provision, “a retail investor” means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive 2002/92/EC, as amended, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Directive 2003/71/EC.
|
(a)
|
In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
|
(b)
|
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
|
i.
|
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
|
ii.
|
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
|
iii.
|
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
|
Name of Underwriter
|
|
Principal amount of Securities to be purchased
|
||
|
|
|
||
J.P. Morgan Securities LLC.
|
|
$
|
80,000,000
|
|
MUFG Securities Americas Inc.
|
|
80,000,000
|
|
|
Wells Fargo Securities, LLC
|
|
80,000,000
|
|
|
Comerica Securities, Inc..
|
|
20,000,000
|
|
|
Mischler Financial Group, Inc..
|
|
20,000,000
|
|
|
The Williams Capital Group, L.P..
|
|
20,000,000
|
|
|
Total
|
|
$300,000,000
|
|
Issuer:
|
Interstate Power and Light Company
|
Security Type:
|
Senior Debentures
|
Anticipated Ratings*:
|
[intentionally omitted]
|
Principal Amount:
|
$300,000,000
|
Maturity Date:
|
September 30, 2049
|
Coupon:
|
3.500%
|
Price to Public:
|
99.668% of the principal amount
|
Yield to Maturity:
|
3.518%
|
Benchmark Treasury:
|
2.875% due May 15, 2049
|
Benchmark Treasury Yield:
|
2.218%
|
Spread to Benchmark Treasury:
|
+130 bps
|
Interest Payment Dates:
|
March 30 and September 30, commencing on March 30, 2020
|
Optional Redemption - Reinvestment Rate:
|
Prior to March 30, 2049, make-whole call at Treasury +20 bps
|
Optional Redemption at Par:
|
On or after March 30, 2049
|
Trade Date:
|
September 19, 2019
|
Settlement Date:
|
September 26, 2019 (T+5)
|
CUSIP / ISIN:
|
461070 AR5 / US461070AR57
|
Joint Book-Running Managers:
|
J.P. Morgan Securities LLC
MUFG Securities Americas Inc.
Wells Fargo Securities, LLC
|
Co-Managers:
|
Comerica Securities, Inc.
Mischler Financial Group, Inc.
The Williams Capital Group, L.P.
|
No. R-1
|
|
$300,000,000
|
|
By:
|
___________________________
|
By:
|
___________________________
|
By:
|
/s/ Barbara Tormaschy
|
Name:
|
Barbara Tormaschy
|
Title:
|
Vice President and Treasurer
|
Re:
|
3.500% Senior Debentures due 2049
|
|
Registration Statement on Form S-3
|
|
Registration No. 333-222076-02
|
Re:
|
3.500% Senior Debentures due 2049
|
|
Registration Statement on Form S-3
|
|
Registration No. 333-222076-02
|
www.SPMBLAW.com
|
Interstate Power and Light Company
|
An Alliant Energy Company
|
|
Corporate Headquarters
|
4902 North Biltmore Lane
|
Madison, WI 53718-2148
|
FOR IMMEDIATE RELEASE
|
|
Media Contact:
|
|
Scott Reigstad (608) 458-3145
|
|
|
Investor Relations:
|
|
Susan Gille (608) 458-3956
|