As filed with the Securities and Exchange Commission on December 1, 1998
Registration No. 333-71226
- ------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
Form S-3 REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
AMERICAN STATES WATER COMPANY
(Exact name of Registrant as specified in its charter)
CALIFORNIA 95-4676679
(State or other jurisdiction (I.R.S. Employer)
of incorporation or Identification
organization) Number)
---------------------
630 East Foothill Boulevard
San Dimas, California 91773
(909) 394-3600
(Address, including zip code, and telephone Number,
including area code, of Registrant's principal executive offices)
---------------------
McClellan Harris III
630 East Foothill Boulevard
San Dimas, California 91773
(909) 394-3600
---------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this form are
to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [ ]
If this form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ] ____________
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ] __________
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================
Title of each class of Proposed maximum Amount of
securities to be aggregate offering registration
registered price <6> fee <6>
- --------------------------------------------------------------------
<S> <C> <C>
Debt Securities <1> N.A.
New Preferred Shares, no par value <1><2> N.A.
Depository Shares <1><2><3> N.A.
Common Shares, no par value <4> <1><5> N.A.
Total $60,000,000 $16,680
====================================================================
<1> In no event will the aggregate maximum offering price of all
securities issued pursuant to this Registration Statement
exceed $60,000,000 or, if any Debt Securities are issued
with original issue discount, such greater amount as shall
result in an aggregate offering price of $60,000,000. Any
securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
<2> Shares of New Preferred Shares and Depository Shares may be
issuable upon conversion of Debt Securities registered hereby.
<3> In the event American States Water Company elects to offer to
the public fractional interests in shares of the New Preferred
Shares registered hereunder, Depository Receipts will be
distributed to those persons purchasing such fractional
interests, and the shares of New Preferred Shares will be
issued to the Depositary under any such Deposit Agreement.
<4> Includes stock purchase rights. Prior to occurrence of certain
events, these rights will not be exercisable or evidenced
separately from the Common Shares.
<5> Common Shares may be issuable in primary offerings and upon
conversion of the New Preferred Shares or Debt Securities
registered hereby.
<6> Calculated pursuant to Rule 457(o) of the rules and
regulations under the Securities Act of 1933, as amended.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
<PAGE>
The information in this prospectus is not complete and may be changed.
We may not sell these securities and it is not soliciting
an offer to buy these securities in any State where the offer or
sale is not permitted.
Subject to Completion
Preliminary Prospectus
Dated December 1, 1998
AMERICAN STATES WATER COMPANY
630 East Foothill Blvd.
San Dimas, California 91773
Telephone: 909-394-3600
$60,000,000
DEBT SECURITIES
COMMON SHARES
NEW PREFERRED SHARES
DEPOSITARY SHARES
We may from time to time offer the securities described in
this Prospectus, either separately or in combination. We will
provide you with the specific terms of each offering in supplements
to this Prospectus.
We also periodically file information about our company
with the Securities and Exchange Commission. You should read
this information, this Prospectus and the supplements carefully
before you invest. Our common shares are listed on the New York
Stock Exchange under the symbol "AWR."
-------------------------
PROSPECTUS
-------------------------
_____________, 1998
Neither the Securities and Exchange Commission nor any state
securities commission has approved of these securities or
determined that this Prospectus is accurate or complete.
Any representation to the contrary is a criminal offense.
<PAGE>
TABLE OF CONTENTS
SUMMARY 1
WHERE YOU CAN FIND MORE INFORMATION 5
USE OF PROCEEDS 6
DESCRIPTION OF DEBT SECURITIES 6
General 6
Status of Debt Securities 6
Payment and Transfer 7
Global Debt Securities 7
Absence of Restrictive Covenants 8
Successor Corporation 8
Events of Default 9
Modification of Indenture 10
Defeasance 10
Regarding the Trustee 11
Governing Law 11
DESCRIPTION OF CAPITAL STOCK 11
Common Shares 12
Preferred Shares 12
New Preferred Shares 13
Rights Agreement 14
Certain Provisions of our Articles and Bylaws 16
Certain Provisions of State and Federal Law 17
DESCRIPTION OF DEPOSITARY SHARES 18
General 19
Dividends and Other Distributions 19
Conversion and Exchange 19
Redemption of Depositary Shares 19
Global Depositary Receipts 19
Voting New Preferred Shares 20
Amendment and Termination of Depositary Agreement 20
Charges of Depositary 21
Resignation and Removal of Depositary 21
Miscellaneous 21
PLAN OF DISTRIBUTION 21
LEGAL MATTERS 23
EXPERTS 23
<PAGE>
SUMMARY
This Prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission
("SEC") using the shelf registration process. Under this
process, we may sell up to $60,000,000 of the securities
described in this Prospectus in one or more offerings
over the next several years.
This Prospectus provides you with a general
description of the securities we may offer. Each time we
sell securities, we will provide you with a supplement to
this Prospectus that will describe the specific amounts,
prices and terms of the securities for that offering.
The Prospectus Supplement may also add, update or
change information contained in this Prospectus. Although
we will try to include all information that we believe
may be material to investors, certain details that may be
important to you may have been excluded. To see more
detail, you should read the exhibits filed by us with the
registration statement or other SEC filings.
We also periodically file with the SEC documents
that include information about our financial statements
and our company, including information on matters that
might affect our future financial results. Our principal
subsidiary, Southern California Water Company ("SCW"),
also periodically files documents with the SEC.
Directions on how you may get our documents and those of
SCW are provided on page 4 . It is important for you to
read these documents, this Prospectus and the applicable
Prospectus Supplement, in addition to this Summary,
before you invest.
AMERICAN STATES WATER COMPANY
Our company was formed on July 1, 1998 as a holding
company for SCW. SCW was founded in 1929 and operates 39
water systems serving approximately 242,500 customers
located in 75 communities in California. SCW also sells
electricity to approximately 21,000 customers in the Big
Bear area of California. The California Public Utilities
Commission ("CPUC") regulates SCW.
In addition, our company provides operation and
maintenance, billing, meter reading and other services
that are not regulated by the CPUC for municipally-owned
water systems in California. These activities are not,
however, currently material to our company.
Our common shares are listed on the New York Stock
Exchange under the symbol "AWR."
SELECTED FINANCIAL INFORMATION
The following information is unaudited and was
derived from our financial statements. The information
is only a summary and does not provide all of the
information contained in our financial statements, the
financial statements of SCW and the periodic reports that
we have filed with the SEC.
<TABLE>
<CAPTION>
==================================================================================
For the 12 Months Ended For the Year Ended December 31,
September 30,1998 1997 1996 1995
----------------- ------------------------------------
(Dollars in Thousands)
<S> <C> <C> <C> <C>
Statement of Income Data:
Operating Revenues $148,463 $153,755 $151,529 $129,813
Operating Expenses 123,100 130,297 128,100 108,425
Operating Income 25,363 23,458 23,429 21,388
Other Income 223 758 531 366
Interest Charges 10,979 10,157 10,500 9,559
Net Income 14,607 14,059 13,460 12,165
Dividends on Preferred
Shares 91 92 94 96
Earnings Available for
Common Shareholder 14,516 13,967 13,366 12,069
</TABLE>
<TABLE>
<CAPTION>
As of September 30, As of December 31,
1998 1997 1996 1995
------------------ --------------------------------------
(Dollars in Thousands)
<S> <C> <C> <C> <C>
Balance Sheet Data:
Total Assets $478,771 $457,074 $430,922 $406,255
Long-Term Debt 130,803 115,286 107,190 107,455
Preferred Shares 1,600 1,600 1,600 1,600
Preferred Shares subject
to Mandatory Redemption 440 440 480 520
Common Equity 153,504 151,053 146,766 121,576
Total Capitalization 286,347 268,379 256,036 231,151
- -------------------------------------------------------------------------------- --
</TABLE>
Set forth below are the ratio of earnings to fixed charges
and the ratio of earnings to total fixed charges for the periods
indicated:
<TABLE>
<CAPTION>
For the 12 Months Ended For the Year Ended December 31,
September 30,1998 1997 1996 1995 1994
1993
----------------- ----------------------------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges 3.24 3.35 3.26 3.19 3.58 3.09
Ratio of Earnings to
Total Fixed Charges 3.29 3.30 3.21 3.14 3.50 3.04
==================================================================================
</TABLE>
DEBT SECURITIES WE MAY OFFER
We may offer debt securities from time to time in one or
more series, either separately or in combination with other
securities. Our debt securities will be unsecured and will not
be subordinated to any of our other debt. On the date of this
Prospectus, we had no outstanding debt. SCW does, however, have
outstanding unsecured debt. SCW must make scheduled payments on
its debt and otherwise comply with the terms of its debt before
it pays dividends to us. We will rely principally on dividends
from SCW to pay our debt securities. As a result, SCW's
debt is senior to our debt securities.
General Indenture Provisions
- The debt securities will be issued pursuant to the terms
of an indenture.
- The indenture does not limit the amount of debt securities
that we may issue or provide holders any protection should
there be a highly leveraged transaction involving our
company.
- The indenture allows us to merge or to consolidate with
another person, or transfer all or substantially all of our
assets to another person. If these events occur, the
other person will be required to assume our
responsibilities on the debt securities, and we will be
released from all liabilities and Obligations.
- The indenture provides that holders of a majority of the
total principal amount of the debt securities of any series
may vote to change our obligations or your rights
concerning that series of debt securities. But to change
on terms relating to the time or amount of payment of any
series, every holder in that series must consent.
- If we satisfy certain conditions, we may discharge the
indenture at any time by depositing sufficient funds with
the Trustee to pay our obligations when due. All amounts
due to you on the debt securities would be paid by the
Trustee from the deposited funds.
- If certain events of default specified in the indenture
occur, the Trustee or holders of not less than one-third of
the principal amount outstanding in the debt securities of
a series may declare the principal of that series
immediately payable.
- Events of default under the indenture include:
. Failure to pay principal within three business days of
when due,
. Failure to deposit sinking fund payments within three
business days of when due,
. Failure to pay any installment of interest for 60 days, and
. Violation of covenants for 90 days after receipt of notice
to cure.
- The indenture does not contain a provision which is
triggered by our default under our other indebtedness.
COMMON SHARES WE MAY OFFER
We may issue common shares from time to time either
separately or in combination with other securities.
Common shareholders are entitled to receive dividends
declared by our Board of Directors (subject to the rights
of holders of preferred shares and new preferred shares).
As of September 30, 1998, the preferred shareholders had
a dividend preference of 92,000. No new preferred shares
are currently outstanding. Our Board of Directors
recently declared a dividend of $0.315 per common share
payable on December 1, 1998.
Each common shareholder is entitled to one tenth of
a vote per share. Each holder of preferred shares is
entitled to one vote per share. As of September 30,
1998, there were 83,200 preferred shares and 8,957,671
common shares outstanding. Shareholders have cumulative
voting rights with respect to the election of directors,
if certain conditions are satisfied. Holders of
preferred shares have the right to elect a majority of
the directors if we fail to make four quarterly dividend
payments on the preferred shares. We are current in the
payment of dividends to preferred shareholders.
Shareholders have no preemptive rights.
On August 3, 1998, we adopted a rights agreement and
declared a dividend of one right for each common share.
We will also issue one right for each common share issued
while the rights agreement is in effect, including shares
issued under this Prospectus. We will distribute the
rights only when we learn that a person has the right to
acquire 15% or more of our outstanding common shares.
The rights agreement and certain provisions of our
Amended and Restated Articles of Incorporation and
Bylaws, as well as certain provisions of California and
federal law, may make acquisitions and changes of control
of our company more difficult.
NEW PREFERRED SHARES WE MAY OFFER
We may issue new preferred shares from time to time
in one or more series, either separately or in
combination with other securities. Subject to the rights
of the preferred shareholders, our Board of Directors
will determine the dividend, voting, redemption and
conversion rights and other terms of the new preferred
shares at the time of the offering.
We may also issue fractional interests in a series
of new preferred shares. If we do so, a depositary will
issue receipts to you for depositary shares, each of which
will represent the fractional interests.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy
statements and other information with the SEC. SCW also
files annual, quarterly and special reports with the SEC.
You may read and copy any document we file, or that SCW
files, at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please
call the SEC at 1-800-SEC-0330 for further information on
the public reference rooms. Our SEC filings and those of
SCW are also available to the public at the SEC's web
site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the
information we file with them, which means that we can
disclose important information to you by referring you to
those documents. The information incorporated by
reference is considered to be part of this Prospectus,
and later information filed with the SEC will update and
supersede this information. We incorporate by reference:
- SCW's Annual Report on Form 10-K for the year ended
December 31, 1997,
- SCW's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998,
- Quarterly Reports on Form 10-Q for the quarters ended
June 30, 1998 and September 30, 1998,
- our Current Reports on Form 8-K filed with the SEC on
July 1, 1998 and August 20, 1998 and November 2, 1998, and
- the portions of SCW's Proxy Statement on Schedule 14A
for its Annual Meeting of Shareholders held on April 28,
1998 that have been incorporated by reference into SCW's
most recent Form 10-K.
We also incorporate by reference any future filings made by
us with the SEC under Sections 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934 until our offering is
completed.
You may request a copy of these filings and any filings
made by SCW, at no cost, by writing or telephoning us at the
following address:
Corporate Secretary
American States Water Company
630 East Foothill Boulevard
San Dimas, California 91773
(909) 394-3600
You should rely only on the information incorporated by
reference or provided in this Prospectus or the applicable
Prospectus Supplement. We have authorized no one to provide
you with different information. We are not making an offer
of these securities in any state where the offer is not
permitted. You should not assume that the information in
this Prospectus or the applicable Prospectus Supplement is
accurate as of any date other than the date on the front of
the document.
<PAGE>
USE OF PROCEEDS
We will use the net proceeds from the sale of these
securities for general corporate purposes. General
corporate purposes include making payments to
municipalities, funding capital expenditures of SCW,
making investments in subsidiaries and other entities and
repaying debt. We may temporarily invest the proceeds in
short-term securities or use the proceeds to reduce our
short-term borrowings or those of SCW.
DESCRIPTION OF DEBT SECURITIES
We will issue debt securities (the "Debt
Securities") under an indenture to be filed with the SEC.
We have included a form of this indenture (the
"Indenture") as an exhibit to our registration statement.
The following summary of the terms of the Indenture is
not complete and you should carefully review the Indenture
and any supplemental indenture or securities resolution we
may file with the SEC in a particular offering.
GENERAL
We will issue Debt Securities in one or more series
from time to time. The Indenture does not limit the
principal amount of Debt Securities that we may issue.
The specific terms of the Debt Securities will be
included in a supplemental indenture or securities
resolution and described in a Prospectus Supplement. Some
of the terms that may be included are:
- redemption, which may be mandatory or at our option or
the option of the holders,
- right to exchange or convert Debt Securities into other
securities,
- right to defease the Debt Securities,
- sale at a discount; Debt Securities sold at a discount
may bear no interest or interest at a rate below the
market rate at the time of issuance,
- interest rates that may be fixed or variable,
- listing of the Debt Securities on a national securities
exchange, and
- any changes to or additional Events of Default or
covenants.
Unless otherwise specified in the Prospectus Supplement, we
will issue the Debt Securities only as fully registered
global Debt Securities.
STATUS OF DEBT SECURITIES
Our Debt Securities will be unsecured and unsubordinated
and will rank on a parity with all of our other unsecured and
unsubordinated indebtedness. At the date of this Prospectus,
we had no outstanding debt. SCW does, however, have
outstanding unsecured debt. SCW must make scheduled
payments on its debt and otherwise comply with the terms
of its debt before it may pay dividends to us. We will
rely principally on dividends from SCW to pay our debt
securities. As a result, SCW's debt is senior to our
Debt Securities.
PAYMENT AND TRANSFER
We will pay amounts due on the Debt Securities at
the place or places designated by us for such purposes.
We may, at our option, pay by check mailed to the person
in whose name your Debt Securities are registered at the
close of business on the day or days specified by us.
If Debt Securities are registered in your name, you
may transfer or exchange Debt Securities at the office of
the Trustee or at any other office or agency maintained
by us for such purposes, without the payment of any
service charge, except for any tax or governmental
charge.
If you do not claim any payments that we make to a
paying agent on the Debt Securities for a period of one
year, then the paying agent may return the payment to us.
You must then contact us for such payment.
GLOBAL DEBT SECURITIES
Unless otherwise stated in the Prospectus
Supplement, we will issue the Debt Securities of each
series in the form of a global Debt Security. We will
deposit the global Debt Security with the debt depositary
referred to in the next paragraph. Unless a global
Debt Security is exchanged, either in whole or in
part, for Debt Securities in definitive form,
we may not transfer a global Debt Security except as a
whole to the debt depositary or its nominee or either of
their successors.
Unless otherwise stated in the Prospectus
Supplement, The Depository Trust Company, New York, New
York ("DTC") will act as debt depositary for each series
of global Debt Securities. DTC and its participants will
maintain records of your beneficial interest in our
global Debt Securities. You may only transfer your
beneficial interest in a global Debt Security through DTC
and its participants.
DTC has provided the following information to us:
- DTC is a limited-purpose trust company organized
under the New York Banking Law,
- a "banking organization" within the meaning of the
New York Banking Law,
- a member of the United States Federal Reserve System,
- a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and
- a "clearing agency" registered under the provisions of
Section 17A of the Securities Exchange Act of 1934.
DTC holds securities that its participants deposit with
DTC. DTC also facilitates the settlement among its
participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic
computerized book entry changes in its participant's accounts.
This procedure eliminates the need for physical movement of
securities certificates. DTC's Participants include
securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations.
DTC also makes access to its book-entry system
available to others, such as securities brokers and
dealers and banks and trust companies that, either
directly or indirectly, clear through or maintain a
custodial relationship with a direct participant in DTC.
The rules applicable to DTC and its direct and indirect
participants are on file with the SEC.
Assuming DTC's nominee is the registered holder of
the global note, we will treat DTC's nominee as the owner
of the global Debt Securities for all purposes. As a
result, we will make all payments through the Trustee to
DTC's nominee. All such payments will be the
responsibility of DTC's direct and indirect participants.
Our sole responsibility is to make payments to the
Trustee. The Trustee's sole responsibility is to make
payments to DTC's nominee. Likewise, we will give all
notices with respect to the Debt Securities, such as
notices of redemption or conversion, through DTC, and it
will be the responsibility of DTC and its participants to
provide such information to you.
We expect that DTC, upon receipt of any payment on global
Debt Securities, will credit its participants' accounts
on the payment date according to their respective
holdings of beneficial interests in the global Debt
Securities as shown on DTC's records. We also expect
that payments from either direct or indirect participants
in DTC will be made to you in accordance with standing
instructions and customary practices, as is the case with
securities held for the account of customers in bearer
form or registered in "street name."
Unless otherwise provided in the Prospectus
Supplement, you may exchange Debt Securities represented
by a global Debt Security for Debt Securities in
definitive form in authorized denominations only if:
- DTC notifies us that it is unwilling or unable to
continue as debt depositary,
- DTC ceases to be a clearing agency registered under
applicable law and a successor depositary is not
appointed by us within 90 days, or
- we, in our discretion, determine not to require all
of the Debt Securities of a series to be represented by
a global Debt Security and notify the Trustee of our
decision.
ABSENCE OF RESTRICTIVE COVENANTS
We are not restricted by the Indenture from paying
dividends or from incurring, assuming or becoming liable for
any type of debt or other obligations, including obligations
secured by our property. We are not required to maintain any
financial ratios or specified levels of net worth or
liquidity. The Indenture does not contain a covenant or
other provision that specifically is intended to afford
you special protection in the event of a highly leveraged
transaction.
SUCCESSOR CORPORATION
The Indenture allows us:
- to consolidate or merge with or into any other
person, or
- any other person to merge into us, or
- our company to transfer all or substantially all of our
assets to another person,
if, in each case, the following conditions are satisfied:
- the surviving company either
. is a person organized and existing under the
laws of the United States or a state, or
. assumes, by supplemental indenture, all of our
obligations under the Debt Securities and the
Indenture, and
- immediately after the merger, consolidation or
transfer, there is no default under the Indenture.
We will be relieved from our obligations on the Debt
Securities and under the Indenture if these conditions are
satisfied.
Subject to certain limitations in the Indenture, the
Trustee may rely on an officer's certificate and an opinion
of counsel from us as conclusive evidence that any
consolidation, merger or transfer, and any related assumption
of our obligations, complies with the Indenture.
EVENTS OF DEFAULT
Unless otherwise indicated in the Prospectus
Supplement, the term "Event of Default", when used in the
Indenture, means any of the following:
- default in the payment of any installment of interest on
the Debt Securities of a series if the default continues
for a period of 60 days,
- default in the payment of the principal of any Debt
Securities of a series when the same becomes due and
payable if the default continues for three business days,
- default in the deposit of any sinking fund payment, if
any, when and as the same becomes due and payable by the
terms of the Debt Securities of a series if the default
continues for three business days,
- default for 90 days after notice in the performance of
any of our other agreements applicable to the Debt
Securities of a series; the notice may be sent by either
the Trustee or the holders of at least one-third in
aggregate principal amount of the applicable series of
Debt Securities; the Trustee is required to notify you
of any such event that would become a default with notice
if the Trustee has actual knowledge of the event,
- certain events in bankruptcy, insolvency or
reorganization of our company, or
- any other Event of Default provided in the terms of
the Debt Securities of any series.
The Indenture does not have a cross-default provision.
Thus, a default by us or by SCW on any other debt would not
constitute an Event of Default. A default on any series
of Debt Securities does not necessarily constitute a
default on any other series. The Trustee may withhold
notice to you of a default for such series (except for
payment defaults) if the Trustee considers the
withholding of notice in your best interests.
If an Event of Default for any series of Debt
Securities has occurred and is continuing, the Trustee or
the holders of not less than one-third in aggregate
principal amount of the Debt Securities of such series
may declare the entire principal amount (or in the case
of discounted Debt Securities, such portion as may be
described in the applicable Prospectus Supplement) of all
the Debt Securities of such series to be due and payable
immediately. Subject to certain conditions, the holders
of not less than a majority in aggregate principal amount
of the Debt Securities of such series may annul such
declaration and rescind its consequences.
We must file a certificate annually with the Trustee
regarding our compliance with the Indenture.
The Trustee may require a reasonable indemnity from
you before it enforces the Indenture or the Debt
Securities of any series. Subject to these provisions for
indemnification, the holders of a majority in principal
amount of the Debt Securities of any series may direct
the time, method and place of conducting any proceeding
or any remedy available to the Trustee, or of exercising
any trust or power conferred upon the Trustee, for the
Debt Securities of such series.
MODIFICATION OF INDENTURE
Unless indicated in the Prospectus Supplement, the
holders of not less than a majority in aggregate
principal amount of all outstanding Debt Securities,
voting together as a single class, may, with certain
exceptions described below, modify the Indenture. We may
not, however, modify any terms relating to the amount or
timing of payments or reduce the percentage of holders required
to approve modifications to the Indenture without your consent.
We may modify the Indenture without your consent to:
- create a new series of Debt Securities and establish
its terms,
- cure ambiguities or fix omissions,
- comply with the provisions of the Indenture
regarding successor corporations, or
- make any change that does not materially adversely
affect your rights as a holder of Debt Securities.
DEFEASANCE
Unless otherwise provided in the Prospectus Supplement, we
may either:
- terminate as to a series all of our obligations
(except for our obligation to pay all amounts due on
the Debt Securities in accordance with their terms and
certain other obligations with respect to the transfer
or exchange of a Debt Security and the replacement of
destroyed, lost or stolen Debt Securities), or
- terminate as to a series our obligations, if any, with
respect to the Debt Securities of the series under the
covenants, if any, described in the Prospectus Supplement.
We may exercise either defeasance option notwithstanding our
prior exercise of the other defeasance option. If we terminate
all of our obligations, a series may not be accelerated
because of an Event of Default. If we terminate our
covenants, a series may not be accelerated by reference
to the covenants described in the Prospectus Supplement.
To exercise either defeasance option as to a series
of Debt Securities, we must deposit in trust with the
Trustee money or U.S. government obligations sufficient
to make all payments on the Debt Securities of the series
being defeased to redemption or maturity. We must also
comply with certain other conditions. In particular, we
must obtain an opinion of tax counsel that the defeasance
will not result in recognition of any gain or loss to you
for Federal income tax purposes.
REGARDING THE TRUSTEE
Unless otherwise indicated in a Prospectus
Supplement, Chase Manhattan Bank and Trust Company, National
Association will act as Trustee, registrar, transfer and paying
agent for the Debt Securities. We may remove the Trustee with
or without cause if we notify the Trustee 30 days in
advance and if no default occurs or is continuing during
the 30-day period.
In certain circumstances, the Trustee may not
enforce its rights as one or our creditors. The Trustee
may, however, engage in certain other transactions. If it
acquires any conflicting interest as a result of any of
these transactions and there is a default under the Debt
Securities, the Trustee must eliminate the conflict of
interest or resign.
The Trustee also acts as trustee under an indenture between
SCW and the Trustee, dated September 1, 1993 (the "1993 Indenture"),
under which certain debt securities of SCW may be issued and outstanding
at the same time that Debt Securities may be issued and outstanding under
the Indenture. Under the Indenture, the Trustee is authorized to continue
acting as trustee under the 1993 Indenture with respect to such SCW debt
securities while also acting as Trustee with respect to the Debt Securities.
So long as a successor trustee has been appointed, the Indenture further
authorizes the Trustee to resign from either or both of its appointments
as Trustee hereunder and as trustee under the 1993 Indenture in the
event that the Trustee determines in good faith that its performance
hereunder or under the 1993 Indenture subjects the Trustee to a
conflict of interest.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by
and construed in accordance with the laws of the State of
California.
DESCRIPTION OF CAPITAL STOCK
As of September 30, 1998, our authorized capital
stock was 30,233,200 shares. Those shares consisted of:
- 30,000,000 common shares, no par value, with a stated
value of $2.50 per share, of which 8,957,671 were
outstanding (the "Common Shares"),
- 83,200 preferred shares, $25 par per share (the
"Preferred Shares"), all of which were outstanding;
19,200 of these shares are subject to mandatory
redemption, and
- 150,000 new preferred shares, no par value, with a
stated value of $100 per share (the "New Preferred
Shares"), none of which were outstanding; a portion
of the New Preferred Shares have, however, been
reserved for issuance under our rights agreement
described below (the "Rights Agreement").
We will list any Common Shares offered hereunder on
the New York Stock Exchange. One or more series of New Preferred
Shares may also be listed on a national securities exchange.
The following summary of the terms of our capital stock is not
complete. You should look at our Amended and Restated Articles of
Incorporation (the "Articles"), our Bylaws and the Rights Agreement,
each of which we have filed with the SEC, and any amendment to our
Articles setting forth the terms of any series of New Preferred
Shares we may file with the SEC.
COMMON SHARES
We may issue Common Shares from time to time in one or more
offerings, either separately or in combination with the offering of
other securities.
Subject to the rights of holders of our Preferred Shares and
New Preferred Shares, Common Shareholders are entitled to receive
such dividends as may be declared by our Board of Directors out of
funds legally available therefor. Our Board of Directors recently
declared a quarterly dividend on our Common Shares of $0.315 per
share payable on December 1, 1998.
Our Articles provide that, except under certain specified
circumstances, our Board of Directors may not declare any cash
dividends on our Common Shares if, after giving effect to the
payment of the dividend, our Common Stock Equity would be less
than 25% of Total Capitalization. Common Stock Equity under this
formula was 52% of Total Capitalization as of September 30, 1998.
In addition, our ability to pay dividends depends upon receipt of
dividends from SCW. SCW's ability to pay dividends is restricted
under the terms of its debt. Under the most restrictive provision,
as of September 30, 1998, all of the earned surplus was available,
subject to applicable law, for the payment of cash dividends by SCW
to us.
Each Common Shareholder is entitled to one tenth of a vote per
share. Common Shareholders have cumulative voting rights with
respect to the election of directors, if certain conditions are met.
Upon our liquidation, dissolution, or winding up (but subject to the
rights of holders of our Preferred Shares and New Preferred Shares),
we will ratably distribute our assets legally available for
distribution to holders of Common Shares. Common Shareholders have
no preemptive or other subscription or conversion rights, and no
liability for further calls upon their shares. The Common Shares
are not subject to assessment.
Our Common Shares are listed on the New York Stock Exchange
under the symbol "AWR." The transfer agent and registrar for our
Common Shares is ChaseMellon Shareholder Services, L.L.C. Common
Shareholders may participate in our Dividend Reinvestment and Stock
Purchase Plan.
PREFERRED SHARES
We may not issue any additional Preferred Shares. The rights of
the Common Shareholders are, however, affected by the rights of the
Preferred Shareholders.
Dividends on the Preferred Shares are cumulative, so that if we
fail to pay any dividends on the Preferred Shares or any sinking
fund payment, we must cure the default before we are permitted to
pay any dividend on the Common Shares. Preferred Shareholders are
also entitled to certain preferential payments in the event of
our liquidation, dissolution or winding up. We must make these
preferential payments before we may pay Common Shareholders. As of
September 30, 1998, Preferred Shareholders had a dividend preference
of $92,000.
Common and Preferred Shareholders are entitled to vote together
on all matters. Each Preferred Shareholder is entitled to one vote
per share. Common Shareholders are only entitled to one tenth of a
vote per share. Holders of Preferred Shares also have the right to
elect a majority of the directors if we fail to make four
quarterly dividend payments on the Preferred Shares. We are current
on the payment of all dividends on Preferred Shares. In addition,
we may not take certain actions which may adversely affect the
interests of the Preferred Shareholders without the approval of two-
thirds (or in certain circumstances a majority) of the Preferred
Shares.
Preferred Shareholders have no preemptive or other subscription
or conversion rights, and no liability for further calls upon their
shares. The Preferred Shares are not subject to assessment.
The Preferred Shares may be redeemed by us at our option. In
addition, a portion of the outstanding Preferred Shares is subject
to mandatory redemption. We currently redeem 1,600 Preferred Shares
annually pursuant to these mandatory redemption provisions.
NEW PREFERRED SHARES
We may issue New Preferred Shares from time to time in one or
more series. Subject to the rights of the Preferred Shareholders
described below, our Board of Directors will determine the dividend,
voting, redemption and conversion rights and other terms of the New
Preferred Shares at the time of the offering. We may also issue
fractional shares of New Preferred Shares that will be represented
by depositary shares and receipts. For further information about
depositary shares and receipts, see "- Description of Depositary
Shares."
Under the terms of our Articles, we may not issue any New
Preferred Shares containing the following terms, without a vote of
at least two-thirds of the outstanding Preferred Shares or
redemption of all of the Preferred Shares:
- any term that alters or amends the preferences,
voting powers or rights of the New Preferred Shares,
- any term that gives the New Preferred Shares of any
series a priority as to dividends or assets over the
Preferred Shares, and
- the New Preferred Shares of any series may not have the
same priority as to dividends or assets as the Preferred
Shares unless:
. the aggregate stated value of the Common Shares is
at least equal to the par or stated value of all
outstanding Preferred Shares and New Preferred
Shares that have the same priority as the
Preferred Shares,
. our net earnings during a period of 12 consecutive
months out of the previous 15 months (after
deduction for income taxes, interest and
depreciation) are at least equal to twice the
annual dividend requirements on all outstanding
Preferred Shares and New Preferred Shares that
have the same or greater priority as the Preferred
Shares, and
. our net earnings (before interest, but after
income taxes and depreciation) during the same
period are at least equal to one and one-half
times the aggregate of all interest charges and
dividend requirements on all outstanding Preferred
Shares and New Preferred Shares that have the same
or greater priority as the Preferred Shares.
RIGHTS AGREEMENT
On August 3, 1998, we adopted a Rights Agreement and declared a
dividend of one right for each outstanding Common Share. In
addition, we will issue one additional right with each Common Share
issued while the Rights Agreement remains in effect, including
shares issued under this Prospectus. You may only transfer the
rights with your Common Shares until the rights become exercisable.
The rights will expire on August 3, 2008.
You may not exercise the rights until the distribution date.
The distribution date is the earlier of
- ten business days after we learn that a person or group
(including any affiliate or associate of such person or
group) has acquired, or has obtained the right to
acquire, beneficial ownership of 15% or more of our
general voting power (such person or group being
preferred to herein as an "Acquiring Person"), unless
provisions preventing accidental triggering of the
distribution of the rights apply, and
- ten business days following the commencement of, or
first public disclosure of an intent to commence, a
tender offer or exchange offer for 15% or more of our
general voting power.
When the right becomes exercisable, you may purchase from us
one one-thousandth of a share of Junior Participating Preferred
Stock ("Junior Preferred Shares") at a price of $120 per share (the
"Purchase Price"), subject to adjustment in certain circumstances.
The description and terms of the rights are set forth in a Rights
Agreement. The following summary of the Rights Agreement is not
complete and you should look at the Rights Agreement filed by us
with the SEC.
Until the distribution date, the rights will be evidenced by
the certificates for Common Shares. As soon as practicable
following the distribution date, we will mail to you separate
certificates evidencing the rights on the distribution date. Each
separate rights certificate alone will evidence the rights. Until a
right is exercised, you will have no rights as a shareholder,
including the right to vote or to receive dividends for the rights
or the Junior Preferred Shares.
Upon exercise, you will be entitled to dividends of 1,000
times the dividends per share declared on the Common Shares, unless
you are an Acquiring Person. In the event of liquidation, you will
be entitled to a minimum preferential liquidating distribution of
$1,000 per share and an aggregate liquidating distribution per share
of 1,000 times the distribution made per Common Share. The holders
of Junior Preferred Shares will vote together with holders of Common
Shares and will be entitled to 100 votes for each Junior Preferred
Share held on the record date. In the event of any merger,
consolidation or other transaction in which Common Shares are
exchanged, each Junior Preferred Share will be entitled to receive
1,000 times the amount received per Common Share. Because of the
Junior Preferred Shares' dividend and liquidation rights, the
value when issued of the one one-thousandth interest in a Junior
Preferred Share purchasable upon exercise of each right should
approximate the value of one Common Share.
In the event that any person other than you becomes an
Acquiring Person other than by a purchase pursuant to a Qualified
Offer, you will thereafter have the right to receive upon exercise
that number of Common Shares or Common Share equivalents having a
market value of two times the exercise price of the right. For
these purposes, a "Qualified Offer" is a tender offer for all
outstanding Common Shares which is determined by our non affiliated
continuing directors to be fair and otherwise in our best interests
and that of our shareholders.
In the event that, at any time after an Acquiring Person has
become such, we are acquired in a merger or other business
combination transaction (other than a merger which follows a
Qualified Offer at the same or a higher price) or 50% or more
of our consolidated assets or earning power are sold, you will
thereafter have the right to receive, upon exercise of the right
at its then current exercise price, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the right.
At any time after a person has become an Acquiring Person, our
Board of Directors may exchange the rights (other than rights owned
by the Acquiring Person), in whole or in part, at an exchange ratio
of one Common Share per right (subject to adjustment).
Up to and including the distribution date, our Board of
Directors may redeem the rights in whole, but not in part, at a
price of $.01 per right, subject to adjustment (the "Redemption
Price"). Immediately upon any redemption of the rights, you will
only have the right to receive the Redemption Price.
Our Board of Directors may amend the Rights Agreement without
your consent at any time prior to the distribution date. Thereafter
our Board of Directors may amend the Rights Agreement to make
changes which do not adversely affect your interests or which
shorten or lengthen time periods, subject to certain limitations set
forth in the Rights Agreement.
The Rights Agreement is designed to protect you in the event of
unsolicited offers to acquire our company and other coercive
takeover tactics, which in the opinion of our Board of Directors,
could impair its ability to represent shareholder interests. The
provisions of the Rights Agreement may render an unsolicited
takeover more difficult or less likely to occur or may prevent such
a takeover, even though that takeover may offer our shareholders the
opportunity to sell their shares at a price above the prevailing
market rate and may be favored by a majority of our shareholders.
CERTAIN PROVISIONS OF OUR ARTICLES AND BYLAWS
Certain provisions of our Articles and Bylaws may delay or
make more difficult acquisitions or changes of control of our
company. Certain of these provisions may also have the affect
of preventing changes in our management. The following summary
of certain of these provisions is not complete and you should
look at our Articles and Bylaws which we have filed with the SEC.
Classified Board. Our Articles provide for the classification
of our Board of Directors into one or two classes (depending upon
the number of directors), each consisting of a number of directors
as nearly equal as practicable. Our Board of Directors currently
has two classes. So long as the Board remains classified into
two classes, a minimum of two annual meetings of shareholders would
generally be required to replace our entire Board, absent
intervening vacancies.
Business Combinations. Our Articles also provide that certain
business combinations and sales of substantially all of our assets
must be approved either by the affirmative vote of a majority of our
continuing directors or by the affirmative vote of at least two
thirds of the combined voting power of our outstanding shares,
voting together as a single class, in addition to any other
approvals required by applicable law. In addition, any amendments
to our Bylaws relating to the calling of shareholders' meetings,
the bringing of business at shareholders' meetings or amending the
provisions of our Articles described in this paragraph and the
preceding paragraph must be approved by at least two-thirds of the
combined voting power of our outstanding shares, voting together as
a single class.
Directors' Liability. California law permits corporations to
limit or eliminate the personal liability of their directors in any
action, including actions brought by the corporation or its
shareholders for monetary damages for breach of a director's
fiduciary duty of care. The duty of care requires that, when
acting on behalf of the corporation, a director must act
- in good faith,
- in a manner such director believes to be in the
best interests of the corporation and its
shareholders, and
- with such care, including reasonable inquiry,
as an ordinary prudent person in a like
position would use under similar circumstances.
As a result, the relief available to a corporation and its
shareholders may be limited to equitable remedies such as
injunction or rescission if a company indemnifies its directors
to the fullest extent permitted by California law.
Our Articles and Bylaws limit the liability of our
directors to us or our shareholders (in their capacity as
directors, but not in their capacity as officers) to the
fullest extent permitted by California law. Specifically,
our directors are not personally liable to us or our
shareholders for monetary damages for breach of
a director's fiduciary duty as a director, except
- on account of profits made in connection with a
purchase or sale of securities in violation of
Section 16(b) of the Securities and Exchange Act
of 1934,
- if a court of competent jurisdiction determines
that indemnification is unlawful,
- for acts or omissions involving intentional
misconduct or knowing and culpable violations
of law,
- for acts or omissions that the director believed
to be contrary to our best interests or those of our
shareholders or that involve the absence of
good faith on the part of the director,
- for any transaction for which the director
derived an improper benefit,
- for acts or omissions that show a reckless
disregard for the director's duty to us or our
shareholders in circumstances in which the director
was aware, or should have been aware, in the
ordinary course of performing his or her duties,
of a risk of serious injury to us or our
shareholders,
- for acts or omissions that constitute an
unexcused pattern of inattention that amounts to
an abdication of the director's duties to us or
our shareholders,
- for liabilities arising out of transactions in
which the director had a personal interest,
- for the approval of distributions to our
shareholders in violation of California law, and
- for the approval of any loan of our money or
property to one of our directors or officers or
the guarantee of the obligations of any such director
or officer in violation of California law.
The inclusion of these provisions in our Articles and Bylaws
may have the effect of reducing the likelihood of litigation
against our directors, even though such an action, if successful,
might otherwise have benefited us or our shareholders.
CERTAIN PROVISIONS OF STATE AND FEDERAL LAW
Certain provisions of California and federal law may delay or
make more difficult acquisitions or changes in control of our
company. Certain of these provisions are summarized below.
California Law. Under California law, if a tender offer or a
written proposal for approval of a reorganization of a corporation
or a sale of substantially all of its assets is made by an
"interested party", the person making the offer must deliver an
affirmative opinion to each shareholder in writing as to the
fairness of the consideration to be received by the shareholders.
The term "interested party" means a person who is a party to the
transaction and who
- directly or indirectly controls the corporation
that is the subject of the tender offer or proposal,
- is, or is directly or indirectly controlled by,
an officer or director of the corporation, or
- is an entity in which a material financial
interest is held by any director or executive officer.
No person may acquire or control, either directly or
indirectly, any public utility in California without prior approval
of the CPUC. A business combination involving the company would
result in the acquisition of control of SCW.
Public Utility Holding Company Act. No person may acquire,
either directly or indirectly, 5% or more of the voting stock of an
electric utility (other than by merger), without SEC approval, if
such person owns 5% or more of the stock of another public utility
or public utility holding company. A registered public utility
holding company may not acquire any security of another electric
utility without SEC approval, unless an exemption is available under
the Public Utility Holding Company Act of 1935, as amended (the
"PUHCA"), or the regulations promulgated thereunder. The SEC may
not approve the acquisition of securities of an electric utility or
holding company unless it determines that the acquisition would tend
toward the economical and efficient development of an integrated
public utility system and would not be detrimental to investor
interests. The SEC may also condition its approval of the
acquisition of the securities of an electric utility upon a fair
offer being made for the other securities of the utility. SCW is an
electric utility under PUHCA. The company is a holding company under
PUHCA.
A person becomes a holding company required to be registered
under PUHCA upon acquisition of 10% or more of the voting stock
of a holding company or an electric utility, unless the SEC
determines that the person does not control the electric
utility or an exemption is available. The SEC may condition any
such determination upon the applicant refraining from exercising
voting rights, controlling proxies or designating officers or
directors.
We are exempt from registration as a holding company under
PUHCA. The acquisition of this company by a third party could,
however, affect the availability of this exemption. Registered
holding companies are subject to extensive regulation by the SEC and
limitations on certain of their activities. These limitations may
make it impracticable to acquire our company unless an
exemption is available.
<PAGE>
DESCRIPTION OF DEPOSITARY SHARES
We may from time to time issue fractional New Preferred Shares
that will be represented by depositary shares and receipts issued
pursuant to a deposit agreement. We have included a form of
deposit agreement (the "Deposit Agreement") as an exhibit to the
registration statement. The following summary of the general terms
of the Deposit Agreement is not complete. You should look at the
Deposit Agreement and any amendments thereto or to our Articles
setting forth the terms of the New Preferred Shares we may file with
the SEC.
GENERAL
If we elect to offer fractional interests in a series of New
Preferred Shares, a depositary will issue receipts for depositary
shares ("Depositary Shares"), each of which will represent
fractional interests of a particular series of New Preferred Shares.
The depositary will hold the New Preferred Shares under the
terms of the Deposit Agreement. The depositary will be a bank or
trust company selected by us. Subject to the terms of the Deposit
Agreement, you will be entitled to all the rights and preferences
of the New Preferred Shares underlying such Depositary Shares in
proportion to your fractional interest in the New Preferred Shares.
Those rights include dividend, voting, redemption, conversion and
liquidation rights.
The Depositary Shares will be evidenced by depositary receipts
issued under the Deposit Agreement (the "Depositary Receipts"). The
terms of the Depositary Shares, Depositary Receipts and New
Preferred Shares will be described in the Prospectus Supplement.
The Deposit Agreement will contain provisions relating to
adjustments in the fraction of New Preferred Shares represented by
a Depositary Share in the event of a split-up, combination or other
reclassification of the New Preferred Shares or upon any
recapitalization, merger or sale of substantially all or our assets
as an entirety.
Upon surrender of Depositary Receipts at the office of the
Depositary, payment of the charges provided in the Deposit Agreement
and satisfaction of other conditions in the Deposit Agreement, the
Depositary will deliver to you the whole New Preferred Shares of the
series underlying the Depositary Shares evidenced by the Depositary
Receipts. There may, however, be no market for the underlying
series of New Preferred Shares. Once you have withdrawn the
underlying series of New Preferred Shares from the Depositary, you
may not redeposit them.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received for any applicable series of New Preferred
Shares to you in proportion to the number of Depositary Shares
outstanding on the record date. The Depositary will distribute only
such amount as can be distributed without attributing to you a
fraction of one cent. The balance not distributed to you will be
added to and treated as part of the next sum received by the
Depositary for distribution to you.
If there is a distribution other than in cash, the Depositary
will distribute property received by it to you in proportion,
insofar as possible, to the number of Depositary Shares outstanding,
unless the Depositary determines (after consultation with us) that
it is not feasible to make such distribution. If this occurs, the
Depositary may, with our approval, sell such property and distribute
the net proceeds from the sale to you.
The Deposit Agreement will also contain provisions relating to
how any subscription or similar rights offered by us to you will be
made available to you.
All amounts distributed to you will be reduced by any amount
required to be withheld by us on account of taxes and other
governmental charges.
CONVERSION AND EXCHANGE
If any series of New Preferred Shares underlying the Depositary
Shares is subject to conversion or exchange, you will have the right
or obligation to convert or exchange the Depositary Shares
represented by such Depositary Receipts.
REDEMPTION OF DEPOSITARY SHARES
If a series of the New Preferred Shares underlying the
Depositary Shares is subject to redemption, the Depositary will
redeem the Depositary Shares from the proceeds received by it as a
result of the redemption. The Depositary will mail notice of
redemption to you not less than 30 and not more than 60 days prior
to the date fixed for redemption at your address appearing in the
Depositary's books. The redemption price per Depositary Share will
be equal to the applicable fraction of the redemption price per
share payable to you on such series of the New Preferred Shares.
Whenever we redeem shares of any series of New Preferred Shares held
by the Depositary, the Depositary will redeem as of the same
redemption date, the number of Depositary Shares representing the
applicable series of New Preferred Shares. If less than all the
Depositary Shares are to be redeemed, the Depositary will select the
Depositary Shares to be redeemed by lot or pro rata as determined by
the Depositary (subject to rounding to avoid fractions of Depositary
Shares).
After the date fixed for redemption, the Depositary Shares
called for redemption will no longer be outstanding. When the
Depositary Shares are no longer outstanding, all of your rights will
cease, except your right to receive money, securities or other
property payable upon such redemption and any money, securities or
other property that you were entitled to receive upon such
redemption upon surrender to the Depositary of the Depositary
Receipts evidencing your Depositary Shares.
GLOBAL DEPOSITARY RECEIPTS
If stated in the Prospectus Supplement, we may issue each
series of Depositary Receipts in the form of a global Depositary
Receipt. We will deposit the global Depositary Receipt with the
depositary referred to in the next paragraph. Unless a global
Depositary Receipt is exchanged, either in whole or in part, for
Depositary Receipts in definitive form, we may not transfer a
global Depositary Receipt except as a whole to the depositary
or its nominee or either of their successors.
Unless otherwise stated in the Prospectus Supplement, DTC
will act as depositary for each series of global Depositary Receipts.
DTC and its participants will maintain records of your beneficial
interest in our global Depositary Receipts. You may only transfer
your beneficial interest in a global Depositary Receipt through DTC
and its participants.
For additional information regarding DTC, see "DESCRIPTION OF
DEBT SECURITIES - Global Debt Securities."
Assuming DTC's nominee is the registered holder of the global
Depositary Receipt, we will treat DTC's nominee as the owner of the
global Depositary Receipt for all purposes. As a result, we will
make all payments through the Depositary to DTC's nominee. All such
payments will be the responsibility of DTC's direct and indirect
participants. Our sole responsibility is to make payments to the
Depositary. The Depositary's sole responsibility is to make payments
to DTC's nominee. Likewise, the Depositary will give all notices with
respect to the Depositary Receipts, such as notices of redemption or
conversion, through DTC, and it will be the responsibility of DTC and
its participants to provide such information to you.
We expect that DTC, upon receipt of any payment on global
Depositary Receipts, will credit its participants' accounts on the
payment date according to their respective holdings of beneficial
interests in the global Depositary Receipts as shown on DTC's
records. We also expect that payments from either direct or
indirect participants in DTC will be made to you in accordance
with standing instructions and customary practices, as is the
case with securities held for the account of customers in bearer
form or registered in "street name."
Unless otherwise provided in the Prospectus Supplement, you
may exchange Depositary Receipts represented by a global Depositary
Receipt for Depositary Receipts in definitive form in authorized
denominations only if:
- DTC notifies us that it is unwilling or unable
to continue as depositary,
- DTC ceases to be a clearing agency registered
under applicable law and a successor depositary
is not appointed by us within 90 days, or
- we, in our discretion, determine not to require
all of the Depositary Receipts of a series to be
represented by a global Depositary Receipt and notify
the Depositary of our decision.
VOTING NEW PREFERRED SHARES
Upon receipt of notice of any meeting at which you are entitled
to vote, the Depositary will mail the information contained in the
notice of such meeting to you. You may instruct the Depositary on
the exercise of your voting rights. The Depositary will try, if
practical, to vote the number of shares of New Preferred Shares
underlying your Depositary Shares according to your instructions. We
agree to take all reasonable action requested by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain
from voting, or giving consents with respect to, New Preferred
Shares to the extent it does not receive specific instructions from
you.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
We may amend the form of Depositary Receipt evidencing the
Depositary Shares and any provision of the Deposit Agreement.
However, any amendment that imposes or increases fees, taxes or
charges upon you or otherwise materially and adversely alters your
rights will not be effective unless approved by the record holders
of at least a majority of the Depositary Shares then outstanding.
Notwithstanding the foregoing, no amendment may impair your right
to receive any moneys or property to which you are entitled under
the terms of the Depositary Receipts or Deposit Agreement at the
times and in the manner and amount provided therein.
A Deposit Agreement may be terminated by us or the Depositary
only if
- all related outstanding Depositary Shares have
been redeemed,
- there has been a final distribution of the New
Preferred Shares of the relevant series in
connection with our liquidation, dissolution, or
winding up and such distribution has been distributed
to you, and
- the Depositary Shares relate to a series of New
Preferred Shares which is convertible into
other securities and all of the outstanding
Depositary Shares have been so converted.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. We will pay associated charges of the Depositary for
the initial deposit of any series of New Preferred Shares and any
redemption or withdrawal by us of any series of New Preferred
Shares. You must pay transfer and other taxes and governmental
charges and such other charges as are stated in the Deposit
Agreement to be for your account.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign by delivering notice to us, and we
may remove the Depositary. Resignations or removals will take
effect upon the appointment of a successor Depositary and its
acceptance of such appointment. The successor Depositary must be
appointed within 60 days after delivery of the notice of
resignation or removal.
MISCELLANEOUS
The Depositary will forward to you all reports and
communications from us that are delivered to the Depositary and
that we must furnish to you as the holder of the New Preferred
Shares or Depositary Receipts.
Neither the Depositary or any of its agents, the registrar nor
us will be:
- liable if it is prevented or delayed by law or
any circumstance beyond its control in performing
its obligations under the Deposit Agreement,
- subject to any liability under the Deposit
Agreement to you other than for its gross negligence
or willful misconduct, or
- obligated to prosecute or defend any legal proceeding
in respect of Depositary Receipts, Depositary Shares or
any series of New Preferred Series, unless satisfactory
indemnity is furnished by you.
We and the Depositary may rely upon written advice of counsel
or accountants, or information provided by persons presenting New
Preferred Shares for deposit, holders of Depositary Shares, or other
persons believed by us to be competent and on documents believed to
be genuine.
PLAN OF DISTRIBUTION
We may sell the securities:
- through underwriters or dealers,
- directly to one or more purchasers, or
- through agents.
Any underwriter or agent involved in the offer and sale of any of
the securities to you will be named in the applicable Prospectus
Supplement. We may also offer and sell securities in exchange for
one or more other securities.
Underwriters may offer and sell securities:
- at a fixed price or prices, which may be
changed,
- at market prices prevailing at the time of sale,
- at prices related to prevailing market prices,
or
- at negotiated prices.
We may also, from time to time authorize dealers, acting as our
agents, to offer and sell securities upon the terms and conditions
set forth in the applicable Prospectus Supplement. In connection
with the sale of securities, underwriters may receive compensation
from us in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of securities for whom they
act as agent. Underwriters may sell securities to or through
dealers. The dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they act as agent.
We may compensate underwriters or agents in connection with an
offering of securities. Any discounts, concessions or commissions
allowed by underwriters to participating dealers will be set forth
in the applicable Prospectus Supplement. Underwriters, dealers and
agents that participate in the distribution of securities may be
underwriters, and any discounts or commissions we pay them and their
profit on the resale of the securities may be treated as underwriting
discounts and commissions, under the Securities Act of 1933 (the
"Act"). We may agree to indemnify the underwriters, dealers or
agents who participate in the distribution of the securities
against certain civil liabilities, including liabilities under the
Act, or to contribute to payments which the underwriters, dealers or
agents may be required to make. Underwriters, dealers and agents
may perform other services for us in the ordinary course of
business.
If indicated in the Prospectus Supplement, we may offer or sell
the securities by remarketing any securities acquired in connection
with a redemption or repayment of securities in accordance with
their terms or otherwise. One or more remarketing firms may act as
principal for their own account or as our agent in connection with
the remarketing. We will identify the remarketing firm and will
describe the terms of the remarketing in the applicable Prospectus
Supplement. Remarketing firms may be deemed to be underwriters in
connection with the securities remarketed. We may agree to
indemnify the remarketing firms against certain liabilities,
including liabilities under the Act. Remarketing agents may perform
other services for us in the ordinary course of business.
If underwriters are used in any sale of the securities, the purchase
agreement in connection with such sale may provide for an option on
the part of the underwriters to purchase additional securities
within 30 days of the execution of such purchase agreement, which
option may be exercised solely to cover overallotments. Any such
overallotment option will be disclosed in the prospectus supplement
in connection with the securities offered thereby.
If indicated in the Prospectus Supplement, we may authorize
dealers acting as our agents to solicit offers by certain
institutions to purchase our securities from us at the public
offering price set forth in the applicable Prospectus Supplement
pursuant to delayed delivery contracts providing for payment and
delivery on the date or dates stated in the applicable Prospectus
Supplement. Each delayed delivery contract will be for an amount
not less than, and the aggregate principal amount of the securities
sold pursuant to such contracts will be not less nor more than, the
amounts set forth in the applicable Prospectus Supplement. Dealers
may enter into delayed delivery contracts with commercial and
savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other
institutions with our approval. Delayed delivery contracts will
only be subject to the following conditions:
- the purchase must be a legal investment for the
purchaser, and
- the aggregate principal amount of securities sold
to underwriters and pursuant to delayed delivery
contracts may not exceed the aggregate amount to be
sold in the offering.
LEGAL MATTERS
O'Melveny & Myers LLP will pass on the validity of the
securities offered by this Prospectus for the Company. Certain
legal matters in connection with the securities will be passed
upon for the Agents by Cahill Gordon & Reindel, a partnership
including a professional corporation, New York, New York.
They may rely upon the opinion of O'Melveny & Myers LLP as to
matters of California law in passing upon such matters.
EXPERTS
Our financial statements and schedules incorporated in this
Prospectus by reference to our Annual Report on Form 10-K for the
year ended December 31, 1997 have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports
with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in accounting and auditing in
giving said reports.
<PAGE>
AMERICAN STATES WATER COMPANY
630 East Foothill Blvd.
San Dimas, California 91773
Telephone: 909-394-3600
$60,000,000
DEBT SECURITIES
COMMON SHARES
NEW PREFERRED SHARES
DEPOSITARY SHARES
----------------------
PROSPECTUS
---------------------
________, 1998
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
<TABLE>
<CAPTION>
Item 14. Other Expenses of Issuance and Distribution.<1>
<S> <C>
Registration fee $16,680
Rating agency fees 45,000<1>
Printing and engraving expenses 75,000<1>
Accounting fees and expenses 15,000<1>
Legal fees and expenses 110,000<1>
Blue sky fees and expenses 20,000<1>
Fees and expenses of Transfer Agent, Trustee 20,000<1>
and Depositary
Miscellaneous 9,000<1>
---------
Total $441,680
- -----------
<FN>
<1> Expenses are estimated except for the registration
fee.
</FN>
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 317 of the General Corporation Law of California
provides that a corporation has the power, and in some cases is
required, to indemnify an agent, including a director or officer,
who was or is a party or is threatened to be made a party to any
proceeding, against certain expenses, judgments, fines, settlements
and other amounts under certain circumstances. Article VI of the
Company's Bylaws provides for the indemnification of directors,
officers and agents as allowed by statute. In addition, the Company
has purchased directors and officers insurance policies which
provide insurance against certain liabilities of directors and
officers of the Company.
Item 16. Exhibits.
Exhibit
Number Description of Exhibit
------ -----------------------
1.01<1> Forms of Underwriting Agreement or Distribution
Agreement.
3.01 Amended and Restated Articles of Incorporation
of the Company (incorporated by reference to
Form 8-K filed on November 2, 1998
3.02 Bylaws (incorporated by reference to Form 8-K filed on
November 2, 1998)
3.03 Rights Agreement dated August 3, 1998 between
the Company and Chase Mellon Shareholder
Services L.L.C. (incorporated by reference to
the Company's current Report on form 8-K filed
August 20, 1998)
4.01 Indenture with respect to Debt Securities.
4.02 Form of Deposit Agreement with respect to the
Depositary Shares.
4.03 Form of Certificate for Common Shares
5.01<1> Opinion of O'Melveny & Myers LLP as to the
validity of Securities issued by the Company.
12.01 Computation of Ratios of Earnings to Fixed
Charges and Combined Fixed Charges and
Preferred Share Dividends of the Company.
23.01 Consent of Arthur Andersen LLP.
23.02<1> Consent of O'Melveny & Myers LLP
(included in Exhibit 5.1).
24.01 Power of Attorney (included on page II-3).
25.01 Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939 of the Trustee.
- --------------
[FN]
<1> To be filed by amendment or pursuant to a Form 8-K.
</FN>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, unless the information
required to be included in such post-effective amendment is
contained in a periodic report filed by Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and incorporated herein by reference;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, unless the information required to be included in
such post-effective amendment is contained in a periodic
report filed by each Registrant pursuant to Section 13 or
Section 15(d) of the Securities Act of 1934 and incorporated
herein by reference. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such posteffective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of a Registrant's annual report
pursuant to Section 13(a) or Section 5(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described in Item 15 above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of San
Dimas, State of California, on November 30, 1998.
AMERICAN STATES WATER COMPANY
By: /s/ Floyd E. Wicks
-----------------------------
Name: Floyd E. Wicks
Title: Principal Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Each person whose signature appears below authorizes Floyd E.
Wicks and McClellan Harris III, and each of them, as attorneys-
in-fact, to sign any amendment, including post-effective amendments,
to this Registration Statement on his or her behalf, individually
and in each capacity stated below, and to file any such amendment.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
- ------------------ --------------------------- -----------------
Floyd E. Wicks /s/ Floyd E. Wicks November 30, 1998
---------------------------
Principal Executive Officer,
President, Chief Executive
Officer and Director
McClellan Harris III /s/ McClellan Harris III November 30, 1998
---------------------------
Principal Financial Officer and
Principal Accounting Officer,
Vice President - Finance,
Chief Financial Officer,
Treasurer and Secretary
William V. Caveney /s/ William V. Caveney November 30, 1998
---------------------------
Chairman of the Board and
Director
James L. Anderson /s/ James L. Anderson November 30, 1998
---------------------------
Director
Jean E. Auer /s/ Jean E. Auer November 30, 1998
--------------------------
Director
N.P. Dodge, Jr. /s/ N.P. Dodge, Jr. November 30, 1998
---------------------------
Director
Robert F. Kathol /s/ Robert F. Kathol November 30, 1998
---------------------------
Director
Lloyd E. Ross /s/ Lloyd E. Ross November 30, 1998
---------------------------
Director
Anne Holloway /s/ Anne Holloway November 30, 1998
---------------------------
Director
</TABLE>
<PAGE>
EXHIBIT 4.01
AMERICAN STATES WATER COMPANY
AND
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION
TRUSTEE
-------------------
INDENTURE
Dated as of December 1, 1998
-------------------
DEBT SECURITIES
<PAGE>
PARTIAL CROSS-REFERENCE TABLE
Indenture Section TIA Section
2.04.......................................... 317(b)
2.05.......................................... 312(a)
2.10.......................................... 316(a) (last sentence)
4.04......................................... 314(a)(4)
4.05......................................... 314(a)(1)
6.04..........................................316(a)(1)(B)
6.05..........................................316(a)(1)(A)
6.07..........................................317(a)(1)
7.04.......................................... 315(b)
7.05.......................................... 313(a)
7.05.......................................... 313(d)
7.07..........................................310(a), 310(b)
7.10..........................................310(b)(1)
8.02..........................................310(a), 310(b)
9.04.......................................... 316(c)
10.01......................................... 318(a)
10.02......................................... 313(c)
10.03......................................... 314(c)(1)
314(c)(2)
10.04......................................... 314(e)
<PAGE>
ARTICLE 1 - DEFINITIONS. . . . . . . . . . . . . . . . .. . . 1
SECTION 1.01 Definitions. . . . . . . . . . . . . .. . . 1
SECTION 1.02 Other Definitions. . . . . . . . . . .. . . 2
SECTION 1.03 Rules of Construction. . . . . . . . .. . . 2
ARTICLE 2 - THE SECURITIES. . . . . . . . . . . . . . . . . . 3
SECTION 2.01 Issuable in Series . . . . . . . . . .. . . 3
SECTION 2.02 Execution and Authentication. . . . . .. . . 4
SECTION 2.03 Securities Agents. . . . . . . . . . .. . . 5
SECTION 2.04 Paying Agent to Hold Money in Trust. .. . . 5
SECTION 2.05 Securityholder Lists. . . . . . . . . . . . 5
SECTION 2.06 Transfer and Exchange . . . . . . . . .. . . 6
SECTION 2.07 Replacement Securities. . . . . . . . .. . . 6
SECTION 2.08 Outstanding Securities. . . . . . . . .. . . 6
SECTION 2.09 Discounted Securities. . . . . . . . .. . . 7
SECTION 2.10 Treasury Securities. . . . . . . . . .. . . 7
SECTION 2.11 Global Securities. . . . . . . . . . .. . . 7
SECTION 2.12 Temporary Securities. . . . . . . . . . . . 7
SECTION 2.13 Cancellation. . . . . . . . . . . . . .. . . 8
SECTION 2.14 Defaulted Interest. . . . . . . . . . .. . . 8
ARTICLE 3 - REDEMPTION.. . . . . . . . . . . . . . . . .. . . 8
SECTION 3.01 Notices to Trustee. . . . . . . . . . .. . . 8
SECTION 3.02 Selection of Securities to Be Redeemed.. . . 8
SECTION 3.03 Notice of Redemption. . . . . . . . . .. . . 9
SECTION 3.04 Effect of Notice of Redemption. . . . .. . . 9
SECTION 3.05 Payment of Redemption Price. . . . . .. . . 9
SECTION 3.06 Securities Redeemed in Part. . . . . .. . . 10
ARTICLE 4 - COVENANTS. . . . . . . . . . . . . . . . . .. . . 10
SECTION 4.01 Certain Definitions. . . . . . . . . .. . . 10
SECTION 4.02 Payment of Securities. . . . . . . . .. . . 10
SECTION 4.03 Overdue Interest. . . . . . . . . . . . . . 10
SECTION 4.04 No Lien Created, etc.. . . . . . . . .. . . 10
SECTION 4.05 Compliance Certificate. . . . . . . . .. . .11
SECTION 4.06 SEC Reports. . . . . . . . . . . . . .. . . 11
ARTICLE 5 - SUCCESSORS. . . . . . . . . . . . . . . . . . . . 11
SECTION 5.01 When Company May Merge, etc. . . . . . .. . .11
ARTICLE 6 - DEFAULTS AND REMEDIES. . . . . . . . . . . .. . . 11
SECTION 6.01 Events of Default. . . . . . . . . . .. . . 11
SECTION 6.02 Acceleration. . . . . . . . . . . . . . . .13
SECTION 6.03 Other Remedies. . . . . . . . . . . . .. . .13
SECTION 6.04 Waiver of Past Defaults. . . . . . . .. . . 13
SECTION 6.05 Control by Majority. . . . . . . . . .. . . 14
SECTION 6.06 Limitation on Suits. . . . . . . . . .. . . 14
SECTION 6.07 Collection Suit by Trustee. . . . . . . . . 14
SECTION 6.08 Priorities. . . . . . . . . . . . . . .. . .15
ARTICLE 7 - TRUSTEE.. . . . . . . . . . . . . . . . . . .. . .15
SECTION 7.01 Rights of Trustee. . . . . . . . . . .. . . 15
SECTION 7.02 Individual Rights of Trustee. . . . . .. . .16
SECTION 7.03 Trustee's Disclaimer. . . . . . . . . .. . .17
SECTION 7.04 Notice of Defaults. . . . . . . . . . .. . .17
SECTION 7.05 Reports by Trustee to Holders. . . . .. . . 17
SECTION 7.06 Compensation and Indemnity. . . . . . .. . .17
SECTION 7.07 Replacement of Trustee. . . . . . . . .. . .18
SECTION 7.08 Successor Trustee by Merger, etc.. . .. . . 19
SECTION 7.09 Trustee's Capital and Surplus. . . . .. . . 19
ARTICLE 8 - DISCHARGE OF INDENTURE.. . . . . . . . . . .. . . 19
SECTION 8.01 Defeasance. . . . . . . . . . . . . . .. . .19
SECTION 8.02 Conditions to Defeasance. . . . . . . .. . .20
SECTION 8.03 Application of Trust Money. . . . . . .. . .20
SECTION 8.04 Repayment to Company. . . . . . . . . .. . .21
ARTICLE 9 - AMENDMENTS.. . . . . . . . . . . . . . . . .. . . 21
SECTION 9.01 Without Consent of Holders. . . . . . .. . .21
SECTION 9.02 With Consent of Holders. . . . . . . .. . . 21
SECTION 9.03 Compliance with Trust Indenture Act. .. . . 22
SECTION 9.04 Effect of Consents. . . . . . . . . . .. . .22
SECTION 9.05 Notation on or Exchange of Securities.. . . 22
SECTION 9.06 Trustee Protected. . . . . . . . . . .. . . 23
ARTICLE 10 - MISCELLANEOUS.. . . . . . . . . . . . . . .. . . 23
SECTION 10.01 Trust Indenture Act. . . . . . . . . .. . .23
SECTION 10.02 Notices. . . . . . . . . . . . . . . .. . .23
SECTION 10.03 Certificate and Opinion as to Conditions
Precedent. . . . . . . . . . . . . . .. . .24
SECTION 10.04 Statements Required in Certificate or
Opinion. . . . . . . . . . . . . . . .. . .24
SECTION 10.05 Rules by Company and Agents. . . . . .. . .24
SECTION 10.06 Legal Holidays. . . . . . . . . . . .. . . 25
SECTION 10.07 No Recourse Against Others. . . . . .. . . 25
SECTION 10.08 Counterparts. . . . . . . . . . . . .. . . 25
SECTION 10.09 Governing Law. . . . . . . . . . . . .. . .26
<PAGE>
INDENTURE dated as of December 1, 1998 between AMERICAN STATES
WATER COMPANY, a California corporation ("Company"), and CHASE
MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association, as trustee ("Trustee").
Each party agrees as follows for the benefit of the Holders of
the Company's debt securities issued under this Indenture:
ARTICLE 1 - DEFINITIONS
SECTION 1.01 Definitions.
"Affiliate" means any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company (other than any trust or other entity subject to the
Employee Retirement Income Security Act of 1974, as amended from
time to time and any successor statute).
"Agent" means any Registrar, Transfer Agent or Paying Agent
with respect to the Securities.
"Board" means the Board of Directors of the Company or any
authorized committee of the Board.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Default" means any event which is, or after notice or passage
of time would be, an Event of Default.
"Discounted Security" means a Security where the amount of
principal due upon acceleration is less than the stated principal amount.
"Holder" or "Securityholder" means the person in whose name a
Security is registered as to principal and interest by the Registrar.
"Indenture" means this Indenture and any Securities Resolution
as amended or supplemented from time to time.
"Officer" means the Chairman, the President, the Chief
Financial Officer, any Executive Vice-President, any Senior Vice-
President, any Vice-President, the Treasurer, the Secretary, any
Assistant Treasurer, or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"principal" of a debt security means the principal of the
security plus the premium, if and when applicable, on the security.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this
Indenture.
"Securities Resolution" means a resolution authorizing a series
of Securities adopted by the Board.
"series" means a series of Securities or the Securities of the
series.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date shown above.
"Trustee" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"United States" means the United States of America, its
territories and possessions and other areas subject to its
jurisdiction.
SECTION 1.02 Other Definitions.
Term Defined in Section
"Indenture" 7.02
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"Lien" 4.01
"Paying Agent" 2.03
"Registrar" 2.03
"Subsidiary" 4.01
"Transfer Agent" 2.03
"U.S. Government Obligations" 3.02
"Voting Stock" 4.01
"Yield to Maturity" 4.01
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally
accepted accounting principles in the United States;
(3) generally accepted accounting principles are those
applicable from time to time;
(4) all terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or
defined by SEC rule under the TIA have the meanings
assigned to them by such definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the
plural include the singular.
ARTICLE 2 - THE SECURITIES
SECTION 2.01 Issuable in Series.
The aggregate principal amount of Securities that may be issued
under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series. Each series shall be
created by a Securities Resolution or a supplemental indenture that
establishes the terms of the series, which may include the
following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate or rates, if any, or method of
calculating the interest rate or rates;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the
Company or by the Holder;
(11) the denominations in which Securities are issuable;
(12) whether and upon what terms Securities may be exchanged;
(13) the terms on which Securities may be converted;
(14) whether any Securities will be represented by a Security
in global form and the terms of any global Security;
(15) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the
manner for determining such amounts;
(16) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(17) the amount or portion of principal payable upon
acceleration of a Discounted Security;
(18) any Events of Default or covenants in addition to or in
lieu of those set forth in this Indenture;
(19) whether and upon what terms Securities may be defeased;
(20) the form of the Securities;
(21) any terms that may be required by or advisable under
U.S. or other applicable laws; and
(22) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same
time and, unless otherwise provided in the Securities Resolution or
supplemental indenture for such series, a series may be reopened for
issuances of additional Securities of such series.
SECTION 2.02 Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated or delivered,
the Security shall nevertheless be valid.
A Security shall not be valid until the Security is
authenticated by the manual signature of the Registrar. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
Each Security shall be dated the date of its authentication.
Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without
the signatures or seal contemplated by this Section 2.02.
SECTION 2.03 Securities Agents.
The Company shall maintain an office or agency where Securities
may be authenticated ("Registrar"), where Securities may be
presented for registration of transfer or for exchange ("Transfer
Agent") and where Securities may be presented for payment ("Paying
Agent"). Whenever the Company must issue or deliver Securities
pursuant to this Indenture, the Registrar shall authenticate the
Securities at the Company's request contained in an Officer's
Certificate delivered to the Registrar. The Transfer Agent shall
keep a register of the Securities and of their transfer and
exchange.
The Company may appoint more than one Registrar, Transfer Agent
or Paying Agent for a series. The Company shall notify the Trustee
of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Transfer Agent or
Paying Agent for a series, the Trustee shall act as such.
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other
than the Trustee to agree in writing that the Paying Agent will hold
in trust for the benefit of the persons entitled thereto all money
held by the Paying Agent for the payment of principal of or interest
on the series, and will notify the Trustee of any default by the
Company in making any such payment.
While any such default continues, the Trustee may require a
Paying Agent to pay all money so held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money held
by it to the Trustee upon delivery to the Paying Agent of an
Officer's Certificate so stating. Upon payment over to the Trustee
of all money held by it in trust, the Paying Agent shall have no
further liability for the money.
If the Company or an Affiliate acts as Paying Agent for a
series, it shall segregate and hold as a separate trust fund all
money held by it as Paying Agent for the series.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the
names and addresses of Securityholders. If the Trustee is not the
Transfer Agent, the Company shall furnish, or cause the Registrar to
furnish, to the Trustee semiannually and at such other times as the
Trustee may reasonably request a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses
of Holders.
SECTION 2.06 Transfer and Exchange.
Where Securities of a series are presented to the Transfer
Agent with a request to register a transfer or to exchange them for
an equal principal amount of Securities of other denominations of
the series, the Transfer Agent shall register the transfer or make
the exchange if its requirements for such transactions are
met. The Transfer Agent need not exchange or register the transfer
of any Security or portion of a Security selected for redemption.
Also, it need not exchange or register the transfer of any
Securities for a period of 15 days before a selection of Securities
to be redeemed.
The Transfer Agent may require a Holder to pay a sum sufficient
to cover any taxes imposed on a transfer or exchange.
SECTION 2.07 Replacement Securities.
If the Holder of a Security claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the
Company or the Trustee that the Security has been acquired by a bona
fide purchaser, the Company shall issue a replacement Security if
the Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction
or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and
any taxes for replacing the Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Registrar except for those cancelled by it,
those delivered to it for cancellation, and those described in this
Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona
fide purchaser.
If Securities are considered paid under Section 4.02, they
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company
or an Affiliate holds the Security.
SECTION 2.09 Discounted Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, the principal amount of a Discounted Security shall be the
amount of principal that would be due as of the date of such
determination if payment of the Security were accelerated on that
date.
SECTION 2.10 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or an Affiliate shall be
disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so
owned shall be so disregarded.
SECTION 2.11 Global Securities.
If the Securities Resolution or supplemental indenture so
provides, the Company may issue some or all of the Securities of a
series in temporary or permanent global form. A global Security may
be in registered form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that amount
of Securities of a series as specified in the global Security or as
endorsed thereon from time to time. At the Company's request, the
Registrar shall endorse a global Security to reflect the amount of
any increase or decrease in the Securities represented thereby.
The Company may issue a global Security only to a depository
designated by the Company. A depository may transfer a global
Security only as a whole to its nominee or to a successor
depository.
The Securities Resolution or supplemental indenture may
establish, among other things, the manner of paying principal and
interest on a global Security and whether and upon what terms a
beneficial owner of an interest in a global Security may exchange
such interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not
be responsible for any acts or omissions of a depository, for any
depository records of beneficial ownership interests or for any
transactions between the depository and beneficial owners.
SECTION 2.12 Temporary Securities.
Until definitive Securities of a series are ready for delivery,
the Company may use temporary Securities. Temporary Securities shall
be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary
Securities. Temporary Securities may be in global form. Without
unreasonable delay, the Company shall deliver definitive Securities
in exchange for temporary Securities. Until so exchanged, the
temporary Securities are entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Registrar
for cancellation. The Transfer Agent and the Paying Agent shall
forward to the Registrar any Securities surrendered to them for
payment, exchange or registration of transfer. The Registrar shall
cancel all Securities surrendered for payment, registration of
transfer, exchange or cancellation which have been received by it.
The Registrar shall destroy cancelled Securities unless the Company
otherwise directs.
Unless the Securities Resolution or supplemental indenture
otherwise provides, the Company may not issue new Securities to
replace Securities that the Company has paid or that the Company has
delivered to the Registrar for cancellation.
SECTION 2.14 Defaulted Interest.
If the Company defaults in a payment of interest on Securities,
it need not pay the defaulted interest to Holders on the regular
record date. The Company may fix a special record date for
determining Holders entitled to receive defaulted interest or the
Company may pay defaulted interest in any other lawful manner.
ARTICLE 3 - REDEMPTION
SECTION 3.01 Notices to Trustee.
Securities of a series that are redeemable before maturity
shall be redeemable in accordance with their terms and, unless the
Securities Resolution or supplemental indenture otherwise provides,
in accordance with this Article.
In the case of a redemption by the Company, the Company shall
notify the Trustee and the Transfer Agent of the redemption date and
the principal amount of Securities to be redeemed. The Company
shall notify the Trustee and Transfer Agent at least 45 days before
the redemption date unless a shorter notice is satisfactory
to the Trustee.
If the Company is required to redeem Securities, it may reduce
the principal amount of Securities required to be redeemed to the
extent it is permitted a credit by the terms of the Securities and
it notifies the Trustee of the amount of the credit and the basis
for it. If the reduction is based on a credit for acquired or
redeemed Securities that the Company has not previously delivered
to the Registrar for cancellation, the Company shall deliver the
Securities at the same time as the notice.
SECTION 3.02 Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select the Securities to be redeemed by a method
the Trustee considers fair and appropriate, which shall reflect any
method required by applicable law or stock exchange regulations.
The Trustee shall make the selection from the outstanding Securities
of the series not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series.
Securities and portions thereof selected for redemption shall be in
amounts equal to the minimum denomination for the series or an
integral multiple thereof. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions
of Securities called for redemption. At least 20 days before a
redemption date, the Trustee shall notify the Company, the
Registrar, the Transfer Agent and each Paying Agent of the
Securities to be redeemed and, if a Security is to be redeemed only
in part, the principal amount thereof so to be redeemed.
SECTION 3.03 Notice of Redemption.
At least 20 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first-class
mail to each Holder whose Securities are to be redeemed.
A notice shall identify the Securities of the series to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, in whole or in
part, must be surrendered to the Paying Agent to collect
the redemption price; and
(5) that interest on Securities, or portions thereof,
called for redemption ceases to accrue on and after
the redemption date.
At the Company's written request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
SECTION 3.04 Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given,
Securities called for redemption become due and payable on the
redemption date at the redemption price stated in the notice.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption"), and such notice
of Conditional Redemption shall be of no effect unless all
such conditions to the redemption have occurred on or before such
date or have been waived by the Company in its sole discretion.
SECTION 3.05 Payment of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price
of and accrued interest, if any, on all Securities to be redeemed on
that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay, or
cause the Paying Agent to pay, to the Holder on the redemption date
the redemption price and accrued interest, if any, to such date,
except that the Company will pay any such interest (except defaulted
interest) to Holders on the record date (as such term is defined in
the applicable Securities Resolution) if the redemption date occurs
on an interest payment date (as such term is defined in the
applicable Securities Resolution).
SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall deliver or cause the Transfer Agent to deliver to the
Holder a new Security of the same series equal in principal amount
to the unredeemed principal amount of the Security surrendered.
ARTICLE 4 - COVENANTS
SECTION 4.01 Certain Definitions.
"Lien" means any mortgage, pledge, security interest or lien.
"Subsidiary" means a corporation a majority of whose Voting
Stock is owned by the Company or a Subsidiary.
"Voting Stock" means capital stock having voting power under
ordinary circumstances to elect directors.
"Yield to Maturity" means the yield to maturity on a Discounted
Security at the time of its issuance or at the most recent
determination of interest on the Discounted Security.
SECTION 4.02 Payment of Securities.
The Company shall pay the principal of and interest on a series
in accordance with the terms of the Securities for the series and
this Indenture. Principal and interest on a series shall be
considered paid on the date due if the Paying Agent for the series
holds on that date money sufficient to pay all principal and
interest then due on the series.
SECTION 4.03 Overdue Interest.
Unless the Securities Resolution or supplemental indenture
otherwise provides, the Company shall pay interest on overdue
principal of a Security of a series at the rate (or Yield to
Maturity in the case of a Discounted Security) borne by the series;
it shall pay interest on overdue installments of interest at the
same rate or Yield to Maturity to the extent lawful.
SECTION 4.04 No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge
or encumbrance on any property of the Company or any Subsidiary.
SECTION 4.05 Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, a brief certificate
signed on its behalf by the principal executive officer, principal
financial officer or principal accounting officer of the Company, as
to the signer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture as of the end of such
fiscal year (determined without regard to any period of grace or
requirement of notice provided herein).
Any other obligor on the Securities also shall deliver to the
Trustee such a certificate similarly signed as to its compliance
with this Indenture within 120 days after the end of each of its
fiscal years.
SECTION 4.06 SEC Reports.
The Company shall file with the Trustee, within 15 days after
the Company is required to file the same with the SEC, copies of the
annual reports and of the information, documents, and other reports
(or such portions of the foregoing as the SEC may prescribe) which
the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the
above items which it is required to file with the SEC pursuant to
those Sections.
ARTICLE 5 - SUCCESSORS
SECTION 5.01 When Company May Merge, etc.
The Company shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, any person
unless:
(1) the person is organized under the laws of the
United States or a State thereof;
(2) the person assumes by supplemental indenture all the
obligations of the Company under this Indenture and the
Securities; and
(3) immediately after the transaction no Default exists.
The successor shall be substituted for the Company, and
thereafter all obligations of the Company under this Indenture and
the Securities shall terminate.
ARTICLE 6 - DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" on a series occurs if:
(1) the Company defaults in any payment of interest on any
Securities of the series when the same becomes due and
ayable and the Default continues for a period of 60
days;
(2) the Company defaults in the payment of the principal of
any Securities of the series when the same becomes due
and payable at maturity or upon redemption, acceleration
or otherwise and the Default continues for a period of
three business days;
(3) the Company defaults in the payment or satisfaction of
any sinking fund obligation with respect to any
Securities of a series as required by the Securities
Resolution or supplemental indenture establishing such
series and the Default continues for a period of three
business days;
(4) the Company defaults in the performance of any of its
other agreements applicable to the series and the
Default continues for 90 days after the notice
specified below;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a Custodian
for it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit
of its creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian for the Company or
for all or substantially all of its property, or
(C) orders the liquidation of the Company; and
the order or decree remains unstayed and in
effect for 60 days; or
(7) any other Event of Default provided for in the series
occurs.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or a
similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee or the Holders of at least 33-1/3% in principal amount of
the series notify the Company of the Default and the Company does
not cure the Default within the time specified after receipt of the
notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." If
Holders notify the Company of a Default, they shall notify the
Trustee at the same time.
The failure to redeem any Security subject to a Conditional
Redemption is not an Event of Default if any event on which such
redemption is so conditioned does not occur and is not waived before
the scheduled redemption date.
A Default on any series of Securities shall not constitute a
Default on any other series unless so provided in such other series.
SECTION 6.02 Acceleration.
If an Event of Default occurs and is continuing on a series,
the Trustee by notice to the Company, or the Holders of at least 33-
1/3% in principal amount of the series by notice to the Company and
the Trustee, may declare the principal of and accrued interest on
all the Securities of the series to be due and payable
immediately. Discounted Securities may provide that the amount of
principal due upon acceleration is less than the stated principal
amount.
The Holders of a majority in principal amount of the series by
notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment
or decree and if all existing Events of Default on the series have
been cured or waived except nonpayment of principal or interest that
has become due solely because of the acceleration.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing on a series,
the Trustee may pursue any available remedy to collect principal or
interest then due on the series, to enforce the performance of any
provision applicable to the series, or otherwise to protect the
rights of the Trustee and Holders of the series.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
Unless the Securities Resolution or supplemental indenture
otherwise provides, the Holders of a majority in principal amount of
a series by notice to the Trustee may waive an existing Default or
Event of Default on the series and its consequences except:
(1) an Event of Default under clauses (1), (2) or (3) of
Section 6.01, or
(2) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each
Securityholder affected.
SECTION 6.05 Control by Majority.
The Holders of a majority in principal amount of a series may
direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or of exercising any trust or
power conferred on the Trustee, with respect to the series.
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture.
SECTION 6.06 Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect
to the series only if:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default on the series;
(2) the Holders of at least 33-1/3% in principal amount of
the series make a request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of
indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the series do not give the Trustee
a direction inconsistent with such request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal and (except as
contemplated by Section 2.14) interest on such Security on the
respective stated maturities expressed in such Security and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 6.07 Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or
sinking fund payment specified in Section 6.01(1), (2) or (3) occurs
and is continuing on a series, the Trustee may recover judgment in
its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid
on the series.
SECTION 6.08 Priorities.
If the Trustee collects any money for a series pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and
unpaid for principal and interest, ratably, without
reference or priority of any kind, according to the
amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to
Securityholders.
ARTICLE 7 - TRUSTEE
SECTION 7.01 Rights of Trustee.
(1) The Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in
reliance on the Certificate or Opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any
agent appointed with due care, unless such Agent is
affiliated with the Trustee.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section
6.05.
(5) The Trustee may refuse to perform any duty or
exercise any right or power which it reasonably
believes may expose it to any loss, liability or
expense unless it receives indemnity satisfactory to
it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may
agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except
to the extent required by law.
(7) The Trustee shall have no duty with respect to
a Default unless it has actual knowledge of the
Default.
(8) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it
believes to be authorized and within its powers.
(9) Any Agent shall have the same rights and be
protected to the same extent as if it were Trustee.
(10) The right of the Trustee to perform any
discretionary act specified in or contemplated by
this Indenture shall not be construed as a duty.
(11) The Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial
liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights and
powers.
(12) The Trustee may consult with counsel (who may be
counsel for the Company or for the Holders), and with
other experts, and the written advice or opinion of such
counsel or other experts shall be full and complete
authorization and protection in respect of any action
taken, suffered, or omitted by it hereunder in good
faith and in reliance thereon.
(13) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a written
order signed in the name of the Company by any Officer
of the Company and delivered to the Trustee or by
resolution duly adopted by the Board.
(14) Whether or not therein expressly provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this
Section.
(15) Except during the continuance of an Event of Default,
the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
SECTION 7.02 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights.
The Trustee is hereby authorized to act as trustee under that
certain indenture between Southern California Water Company and the
Trustee, dated September 1, 1993 (the "1993 Indenture") notwithstanding
any provisions of this Indenture or the 1993 Indenture affecting the
relative rights of holders of securities issued under such indentures
to payment thereon and to security given to secure such payment. Subject
to the acceptance of appointment by a successor trustee under Section 7.07
of this Indenture and/or Section 7.07 of the 1993 Indenture, as applicable,
the Trustee is further authorized to resign from either or both of its
appointments as Trustee hereunder and as trustee under the 1993 Indenture
in the event that the Trustee determines in good faith that its performance
hereunder or thereunder subjects the Trustee to a conflict of interest.
SECTION 7.03 Trustee's Disclaimer.
The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities;it shall not be
accountable for the Company's use of the
proceeds from the Securities; it shall not be responsible
for any statement in the Securities; it shall not be
responsible for any overissue; it shall not be responsible for
determining whether the form and terms of any Securities were
established in conformity with this Indenture; and it shall not be
responsible for determining whether any Securities were issued in
accordance with this Indenture.
SECTION 7.04 Notice of Defaults.
If a Default occurs and is continuing on a series and if it is
actually known to the Trustee, the Trustee shall mail a notice of
the Default within 90 days after it occurs to Holders of Securities
of the series. Except in the case of a Default in payment on a
series, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that
withholding the notice is in the interest of Holders of the series.
SECTION 7.05 Reports by Trustee to Holders.
Any report required by TIA Section 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before June 30
of each year.
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange
on which any Securities are listed. The Company shall notify the
Trustee when any Securities are listed on a stock exchange. The
Trustee shall send a copy of each such report to the Company.
SECTION 7.06 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses
incurred by it in connection with this Indenture. Such expenses
shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee and each of the
Trustee's directors, officers, employees, agents, successors and
assigns against any loss or liability incurred in connection with
the exercise or performance of the powers or duties as Trustee,
Registrar, Transfer Agent or Paying Agent. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel, reasonably
acceptable to the Company, and the Company shall pay the reasonable
fees and expenses of such counsel.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or
willful misconduct.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in
trust to pay principal or interest on particular Securities. Such
lien shall survive the removal or resignation of the Trustee for
such period as any amount shall remain due and payable to the
Trustee (including any successor Trustee).
SECTION 7.07 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA Section 310(a) or
TIA Section 310(b) or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the
Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6)
occurs with respect to the Trustee.
The Company also may remove the Trustee with or without cause
if the Company so notifies the Trustee 30 days in advance and if no
Default occurs during the 30-period.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal
amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA Section 310(a) or TIA
Section 310(b) or with Section 7.09, any Securityholder may petition
any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon
the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders.
The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided
for in Section 7.06.
SECTION 7.08 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business
to, another corporation, the successor corporation without any
further act shall be the successor Trustee.
SECTION 7.09 Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published report of condition; provided, however, that the initial
Trustee hereunder shall have a combined capital and surplus of at
least $10,000,000 and shall be a wholly owned subsidiary of a
bank with combined capital and surplus of at least $50,000,000.
ARTICLE 8 - DISCHARGE OF INDENTURE
SECTION 8.01 Defeasance.
Securities of a series may be defeased in accordance with their
terms and, unless the Securities Resolution or supplemental
indenture otherwise provides, in accordance with this Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of a series and any
related coupons ("legal defeasance option"). The Company at any
time may terminate as to a series its obligations, if any, under
any restrictive covenants which may be applicable to a particular
series ("covenant defeasance option"). However, in the case of the
legal defeasance option, the Company's obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 7.06, 7.07 and 8.04 shall survive until the
Securities of the series are no longer outstanding; thereafter the
Company's obligations in Section 7.06 shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option, a
series may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants
which may be applicable to a particular series so defeased under
the terms of the series.
The Trustee upon request shall acknowledge in writing the
discharge of those obligations that the Company terminates.
SECTION 8.02 Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance
option or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the
Trustee or another trustee money or U.S. Government
Obligations;
(2) the Company delivers to the Trustee a certificate from
a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal
and interest when due on the deposited U.S. Government
Obligations without reinvestment plus any deposited
money without investment will provide cash at such times
and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities of
the series to maturity or redemption, as the case may
be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any
other agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a
conflicting interest under TIA Section 310(a) or TIA
Section 310(b) as to another series;
(6) the Company delivers to the Trustee an Opinion of
Counsel to the effect that Holders of the series will
not recognize income, gain or loss for Federal income
tax purposes as a result of the defeasance; and
(7) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(4)
or(5) occurs that is continuing at the end of the
period.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
"U.S. Government Obligations" means direct obligations of the
United States which have the full faith and credit of the United
States pledged for payment and which are not callable at the
issuer's option, or certificates representing an ownership interest
in such obligations.
SECTION 8.03 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.02. It shall
apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and interest on Securities
of the defeased series.
SECTION 8.04 Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to
the Company upon written request any money or securities held by
them at any time in excess of amounts required under the terms of
the Securities Resolution to be held by them.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or
interest that remains unclaimed for one year. After payment to the
Company, Securityholders entitled to the money must look to the
Company for payment as unsecured general creditors unless an
abandoned property or similar law designates another person.
ARTICLE 9 - AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may amend this Indenture and the
Securities without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide that specific provisions of this Indenture
shall not apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more
series;
(6) to make any change that does not materially adversely
affect the rights of any Securityholder under this
Indenture or the Securities; or
(7) to make any change that may be necessary to comply with
the TIA.
SECTION 9.02 With Consent of Holders.
Unless the Securities Resolution otherwise provides, the
Company and the Trustee may amend this Indenture and the Securities
with the written consent of the Holders of a majority in principal
amount of the Securities of all series affected by the amendment
voting as one class. However, without the consent of each
Securityholder affected, an amendment under this Section may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment;
(2) reduce the interest on or change the time for payment of
interest on any Security;
(3) change the dates on which principal and interest on any
Security are payable;
(4) change the times at which principal or sinking fund
payments are payable pursuant to, or the amounts of
principal or sinking fund payments subject to,
provisions, if any, relating to mandatory redemption;
(5) reduce the principal of any non-Discounted Security or
reduce the amount of principal of any Discounted
Security that would be due upon an acceleration thereof;
or
(6) make any change in Section 6.04 or 9.02, except to
increase the amount of Securities whose Holders must
consent to an amendment or waiver or to provide that
other provisions of this Indenture cannot be amended or
waived without the consent of each Securityholder
affected thereby.
An amenment applicable solely to one or more series, or a
provision included solely for the benefit of one or more series,
does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a
proposed amendment or waiver; it is sufficient if they consent to
the substance thereof.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment pursuant to Section 9.01 or 9.02 shall be set
forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.04 Effect of Consents.
An amendment or waiver becomes effective in accordance with its
terms and thereafter binds every Securityholder entitled to consent
to it.
A consent to an amendment or waiver by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of
a Security that evidences the same debt as the consenting Holder's
Security. Any Holder or subsequent Holder may revoke the consent as
to his Security if the Trustee receives notice of the revocation
before the amendment or waiver becomes effective.
The Company may fix a record date for the determination of
Holders entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written
solicitation of Securityholders.
SECTION 9.05 Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation
about an amendment or waiver on any Security thereafter
authenticated. The Company may issue in exchange for affected
Securities new Securities that reflect the amendment or waiver.
SECTION 9.06 Trustee Protected.
The Trustee need not sign any supplemental indenture that
adversely affects its rights.
ARTICLE 10 - MISCELLANEOUS
SECTION 10.01 Trust Indenture Act.
The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a
part of and govern this Indenture, whether or not expressly set
forth herein.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in
this Indenture by the TIA, the required provision shall control.
SECTION 10.02 Notices.
Any notice by one party to another is duly given if in writing
and delivered in person, sent by facsimile transmission confirmed by
mail or mailed by first-class mail to the other's address shown below:
Company: American States Water Company
630 East Foothill Boulevard
San Dimas, California 91773
Attention: Chief Financial Officer
Trustee: Chase Manhattan Bank and Trust Company, National Association
101 California Street, Suite 2725
San Francisco, California 94111
Attention: Paula Oswald
A party by notice to the other parties may designate additional
or different addresses for subsequent notices. Any notice mailed to
a Securityholder shall be mailed to his address shown on the
register kept by the Transfer Agent. Failure to mail a notice to a
Securityholder or any defect in a notice mailed to a Securityholder
shall not affect the sufficiency of the notice mailed to other
Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice to Securityholders, it shall mail
a copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published,
the Company may give such substitute notice as the Trustee approves.
Failure to publish a notice as required or any defect in it shall
not affect the sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of
publication.
A "notice" includes any communication required by this
Indenture.
SECTION 10.03 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall if so
requested furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any,
have been complied with.
SECTION 10.04 Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance with
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) as to each certificate, a statement that, in the opinion
of such person, he has made such examination or
investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been
complied with.
SECTION 10.05 Rules by Company and Agents.
The Company may make reasonable rules for action by or at a
meeting of Securityholders. An Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.06 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in California or New York are not required to
be open. If a payment date is a Legal Holiday at a place of
payment, unless the Securities Resolution otherwise provides,
payment may be made at that place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 10.07 No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
SECTION 10.08 Counterparts.
This Indenture may be executed by the parties in counters, each
of which shall be an original, but all of such counterparts shall
together constitute one and the same instrument.
SECTION 10.09 Governing Law.
The laws of the State of California shall govern this Indenture
and the Securities, unless federal law governs.
SIGNATURES
AMERICAN STATES WATER COMPANY
By /s/ McClellan Harris III
------------------------------
McClellan Harris III
Chief Financial Officer
Vice President - Finance
Treasurer and Corporate
Secretary
CHASE MANHATTAN BANK AND
TRUST COMPANY, NATIONAL ASSOCIATION
By /s/ Paula Oswald
-----------------------------
Paula Oswald
Assistant Vice President
<PAGE>
EXHIBIT 4.02
[FORM OF DEPOSIT AGREEMENT]
AMERICAN STATES WATER COMPANY,
___________________, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
--------------------
DEPOSIT AGREEMENT
--------------------
Dated as of _____________, ____
<PAGE>
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . .. . . . 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts. . . . . . . . . . . 2
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . . . . .. . 3
SECTION 2.3 Redemption of Stock. . . . . . . . . . . . . . . . 3
SECTION 2.4 Conversion of Stock into Common Shares. . . . . . 5
SECTION 2.5 Registration of Transfer of Receipts. . . . . . . 5
SECTION 2.6 Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. . . 5
SECTION 2.7 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. . . . . . . . 6
SECTION 2.8 Lost Receipts, etc. . . . . . . . . . . . . . . . 7
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts. . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . .. . .. . . 7
SECTION 3.2 Payment of Taxes or Other Governmental
Charges. . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.3 Warranty as to Stock. . . . . . . . . . ... . . . 8
SECTION 3.4 Covenants and Warranties as to Common Shares. . . 8
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions. . . . . . . . . . . . . . . . 8
SECTION 4.2 Distributions Other than Cash. . . . . . . . . . . 8
SECTION 4.3 Subscription Rights, Preferences or Privileges. . 9
SECTION 4.4 Notice of Dividends, etc.; Fixing of Record
Date for Holders of Receipts. . . . . . . . . . . 9
SECTION 4.5 Voting Rights. . . . . . . . . . . . . . . . . . 10
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. . . . 10
SECTION 4.7 Delivery of Reports. . . . . . . . . . . . . . . 11
SECTION 4.8 List of Receipt Holders. . . . . . . . . . . . . 11
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS
AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary. . . . . . . . . . . . . 11
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents or the
Company. . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.3 Obligations of the Depositary, the
Depositary's Agents and the Company. . . . . . . 12
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. . . . . . . 12
SECTION 5.5 Corporate Notices and Reports. . . . . . . . . . 13
SECTION 5.6 Indemnification by the Company. . . . . . . . . . 13
SECTION 5.7 Charges and Expenses. . . . . . . . . .. . . . . 13
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. . . . . . . . . . . . . . . . . . . . 14
SECTION 6.2 Termination. . . . . . . . . . . . . . . . . . . 14
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. . . . . . . . . . . . . . . . . . 14
SECTION 7.2 Exclusive Benefit of Parties. . . . . . . . . . 14
SECTION 7.3 Invalidity of Provisions. . . . . . . . . . . . 15
SECTION 7.4 Notices. . . . . . . . . . . . . . . . . . . . . 15
SECTION 7.5 Depositary's Agents. . . . . . . . . . . . . . . 15
SECTION 7.6 Holders of Receipts Are Parties. . . . . . . . . 15
SECTION 7.7 Governing Law. . . . . . . . . .. . . . . . . . 15
SECTION 7.8 Inspection of Deposit Agreement. . . . . . . . . 16
SECTION 7.9 Headings. . . . . . . . . . . . . . . . . . . . 16
<PAGE>
DEPOSIT AGREEMENT dated as of
__________________, among
AMERICAN STATES WATER COMPANY,
a California corporation,
_________________________,
a __________ ________________,
and the holders from time to time of
the Receipts described herein.
WHEREAS it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of _____%
__________ New Preferred Shares, no par value, of AMERICAN STATES
WATER COMPANY with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance
hereunder of Receipts (as hereinafter defined) evidencing Depositary
Shares (as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this
Deposit Agreement and the Receipts:
"Certificate" shall mean the certificate of determination filed
with the Secretary of State of the State of California establishing
the Stock as a series of preferred stock of the Company.
"Common Shares" shall mean the shares of the Company's common
stock, no par value.
"Company" shall mean American States Water Company, a
California corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean ____________________, and any successor
as Depositary and registrar to register ownership and transfers of
Depositary Shares hereunder as herein provided.
"Depositary Shares" shall mean Depositary Shares, each
representing a __________ interest in a share of Stock and evidenced
by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary in __________, _______________, at which at any
particular time its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Stock" shall mean shares of the Company's _____% __________
New Preferred Shares, no par value.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution
and Delivery, Transfer, Surrender and
Redemption of Receipts
SECTION 2.1. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed and shall be
substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the
Company delivered in compliance with Section 2.2, shall execute and
deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of
the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay.
After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at an office described in the
third paragraph of Section 2.2, without charge to the holder. Upon
surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits
under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary. No
Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall
have been executed manually by a duly authorized officer of the
Depositary. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement as may be required by the
Company or the Depositary or required to comply with any applicable
law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument
of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that
until transfer of a Receipt shall be registered on the books of
the Depositary as provided in Section 2.5, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder
thereof at such time as the absolute owner thereof for the purpose
of determining the person entitled to receive distributions of
dividends or other distributions, withdraw any Stock underlying the
Depositary Shares, exercise any conversion rights or to receive any
notice provided for in this Deposit Agreement and for all other
purposes.
SECTION 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of
this Deposit Agreement, the Company may from time to time deposit
shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of,
the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares relating to such
deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above
specified, and upon recordation of the Stock so deposited on the
books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon the order
of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a
Receipt or Receipts for the number of Depositary Shares relating to
the Stock so deposited and registered in such name or names as may
be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's
Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends
or other distributions of Stock, if any, there shall be deposited
hereunder not more than __________ shares of Stock.
SECTION 2.3. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions
of the Certificate, it shall (unless otherwise agreed in writing
with the Depositary) mail notice to the Depositary of such
proposed redemption, by first class mail, postage prepaid not less
than 45 nor more than 75 days prior to the date fixed for redemption
of Stock by the Company in accordance with Section 2 of the
Certificate. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed, as set forth in the
Certificate, plus any accrued and unpaid dividends thereon to and
including the Redemption Date (as defined below), the Depositary
shall redeem the Depositary Shares relating to such Stock. The
Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class mail, postage
prepaid, not less than 30 and not more than 60 days prior to the
date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such
holders as they appear on the records of the Depositary; but neither
failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to other holders.
Each such notice shall state:(i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all
the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price (which shall include any
accrued and unpaid dividends to and including the Redemption Date);
(iv) the place or places where Receipts evidencing Depositary Shares
are to be surrendered for payment of the redemption price; (v)
that dividends in respect of the Stock underlying the Depositary
Shares to be redeemed will cease to accumulate after the close of
business on such Redemption Date; and (vi) that the right, if any,
to convert Depositary Shares into Common Shares or other securities
will expire after the close of business on the _____ day preceding
the Redemption Date, and, if applicable, the then-effective
conversion price, if applicable, and the place or places where
Receipts evidencing such Depositary Shares are to be surrendered for
conversion. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be
selected by lot or pro rata (subject to rounding to avoid fractions
of Depositary Shares) as may be determined by the Depositary to be
equitable. A notice of redemption may provide that it is subject to
the occurrence of any event before the date fixed for such
redemption as described in such notice ("Conditional Redemption"),
and such notice of Conditional Redemption shall be of no effect
unless all such conditions to the redemption shall have occurred
on or before such date or have been waived by the Company in its
sole discretion.
Notice having been mailed by the Depositary as aforesaid
(unless the Company shall have failed to redeem the shares of Stock
to be redeemed by it as set forth in the Company's notice provided
for in the preceding paragraph), (i) after the close of business
on the fifth day preceding the Redemption Date, all conversion
rights in respect of the Depositary Shares called for redemption
on such Redemption Date will terminate and (ii) from and after the
Redemption Date all dividends in respect of the Depositary Shares so
called for redemption shall cease to accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed no longer
to be outstanding, all remaining rights of the holders of
Receipts evidencing such Depositary Shares (except the right to
receive the redemption price without interest) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender
in accordance with such notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary
Share equal to __________ of the redemption price per share paid in
respect of the shares of Stock plus all money and other property, if
any, paid with respect to such Depositary Shares, including all
amounts paid by the Company in respect of dividends which on the
Redemption Date have accumulated on the shares of Stock to be so
redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder
of such Receipt upon its surrender to the Depositary, together with
the redemption payment, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
SECTION 2.4. Conversion of Stock into Common Shares. The
Company hereby agrees to accept the delivery of Receipts for
purposes of effecting conversions of the Stock utilizing the same
procedures as those provided for delivery of certificates for the
Stock to effect such conversions in accordance with the terms and
conditions of the Stock as provided in the Certificate. Any whole
number of Depositary Shares (whether or not evenly divisible by
____) represented by a Receipt may be surrendered for conversion.
If the Depositary Shares represented by a Receipt are to be
converted in part only, a new Receipt or Receipts will be issued by
the Depositary for the Depositary Shares not to be converted.
No fractional Common Shares will be issued upon conversion, and if
such conversion will result in a fractional share being issued, an
amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common
Shares on the last business day prior to the conversion. For this
purpose, a holder of a Receipt or Receipts must surrender such
Receipt or Receipts to the Company, together with a duly completed
and executed Notice of Conversion in the form included in the
Receipt. In all cases the foregoing shall be conditioned upon
compliance in full by the holders with the applicable terms and
conditions of the Stock as provided in the Certificate and of this
Deposit Agreement. The Company and the Depositary will thereafter
effect the cancellation of each Receipt surrendered for such
conversion and of the related Stock so converted. In the event that
the conversion of Depositary Shares results in issuance of a
fraction of a share of Stock, the Depositary will make appropriate
adjustment in its records to reflect such issuance and, if
appropriate, the combination of any fractions of shares into one or
more whole shares of Stock.
Upon conversion no adjustments will be made for accrued
dividends and, therefore, Depositary Shares surrendered for
conversion after the record date next preceding a dividend payment
date for the Stock and prior to such dividend payment date must
be accompanied by payment of an amount equal to the applicable
fraction of the dividend thereon which is to be paid on such
dividend payment date (unless the Depositary Shares surrendered
for conversion have been called for redemption prior to such
dividend payment date). No adjustment of the conversion price
will be required to be made in any case until cumulative
adjustments amount to 1% or more of the conversion price.
SECTION 2.5 Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or
upon the order of the person entitled thereto.
SECTION 2.6 Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock. Upon surrender of a Receipt
or Receipts at the Depositary's Office or at such other offices
as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the denominations
requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts evidencing at least
________ Depositary Shares may withdraw the number of whole shares
of Stock underlying such Depositary Shares and all money and other
property, if any, relating thereto by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or
at such other offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the Depositary
shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares
of Stock and all money and other property, if any, relating to the
Depositary Shares evidenced by the Receipts so surrendered for
withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive
Receipts evidencing Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating
to other than a number of whole shares of Stock, the Depositary
shall at the same time, in addition to such number of whole
shares of Stock and such money and other property, if any, to
be so withdrawn, deliver to such holder, or (subject to Section
3.2) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the Stock and money and
other property being withdrawn may be made by delivery of such
certificates, documents of title and other instruments as the
Depositary may deem appropriate. The Depositary may require a
holder of Depositary Receipts to pay a sum sufficient to cover
any taxes imposed upon any such withdrawal.
HOLDERS ACKNOWLEDGE THAT THERE MAY BE NO MARKET FOR
THE UNDERLYING STOCK AND THAT UPON WITHDRAWAL OF THE
STOCK, HOLDERS THEREOF WILL NOT BE ENTITLED THEREAFTER TO
DEPOSIT SUCH STOCK UNDER THIS DEPOSIT AGREEMENT.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record
holder of the Receipts being surrendered for withdrawal of Stock,
such holder shall execute and deliver to the Depositary a written
order so directing the Depositary, and the Depositary may require
that the Receipt or Receipts surrendered by such holder for
withdrawal of such shares of Stock be properly endorsed in blank
or accompanied by a properly executed instrument of transfer.
Delivery of the Stock and the money and other property, if
any, underlying the Depositary Shares evidenced by the Receipts
surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense
of the holder surrendering such Receipts and for the account
of such holder, such delivery may be made at such other place as
may be designated by such holder.
SECTION 2.7 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to
the execution and delivery, registration of transfer, split-up,
combination, surrender, exchange or redemption of any Receipt, the
withdrawal of any Stock underlying the Depositary Shares or the
exercise of any conversion rights, the Depositary, any of the
Depositary's Agents or the Company may require payment to it of a
sum sufficient for the payment (or, in the event that the Depositary
or the Company shall have made such payment, the reimbursement to
it) of any charges or expenses payable by the holder of a Receipt
pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if
any, as the Depositary or the Company may establish consistent with
the provisions of this Deposit Agreement.
The exercise of any conversion rights or the withdrawal of any
Stock underlying the Depositary Shares may be suspended, the
delivery of Receipts against Stock may be suspended, the
registration of transfer of Receipts may be refused and the
registration of transfer, surrender, exchange or redemption of
outstanding Receipts may be suspended (i) during any period when
the register of shareholders of the Company is closed or (ii) if
any such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government
or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor
in exchange and substitution for such mutilated Receipt, or in lieu
of and in substitution for such destroyed, lost or stolen Receipt,
upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss
or theft of such Receipt, of the authenticity thereof and of his or
her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be canceled by the Depositary. Except as
prohibited by applicable law or regulation, the Depositary is
authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to
execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt, the exercise of any conversion rights, the
withdrawal of any Stock underlying the Depositary Shares or the
distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the
Depositary of certain taxes, charges and expenses, as provided in
Section 5.7. Registration of transfer of any Receipt, the exercise
of any conversion rights, any withdrawal of Stock and delivery of
all money or other property, if any, represented by the Depositary
Shares evidenced by such Receipt may be refused until any such
payment due is made, and any dividends, interest payments or other
distributions may be withheld or all or any part of the Stock or
other property relating to the Depositary Shares evidenced by such
Receipt and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied
to any payment of such taxes, charges or expenses, the holder of
such Receipt remaining liable for any deficiency.
SECTION 3.3 Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and
warranty shall survive the deposit of the Stock and the issuance of
Receipts.
SECTION 3.4 Covenants and Warranties as to Common Shares. The
Company covenants that it will keep reserved or otherwise available
a sufficient number of authorized and unissued Common Shares to meet
conversion requirements in respect of the Depositary Shares and that
it will give written notice to the Depositary of any adjustments in
the conversion price made pursuant to the Certificate. The Company
represents and warrants that the Common Shares issued upon
conversion of the Depositary Shares will be validly issued, fully
paid and non-assessable.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
the record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such dividend or distribution as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall
be required to withhold and shall withhold from any cash dividend or
other cash distribution in respect of the Stock an amount on account
of taxes and governmental charges, the amount made available for
distribution or distributed in respect of Depositary Shares shall be
reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any holder of
Receipts a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of
the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.2 Distributions Other than Cash. Whenever the
Depositary shall receive any distribution other than cash on the
Stock, the Depositary shall, subject to Sections 3.1 and 3.2,
distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.4 such amounts of the securities or property
received by it as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may
deem equitable and practicable for accomplishing such distribution.
If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other
reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes and governmental charges) the
Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or
property thus received, or any part thereof, at such place or places
and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.1 and 3.2, be distributed or
made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.1
in the case of a distribution received in cash.
SECTION 4.3 Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company
any rights, preferences or privileges to subscribe for or to
purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall in
each such instance be made available by the Depositary to the record
holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the
approval of the Company; provided, however, that (i) if at the time
of issue or offer of any such rights, preferences or privileges the
Depositary determines that it is not lawful or (after consultation
with the Company) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of warrants
or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences
or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, preferences
or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell
such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to
Sections 3.1 and 3.2, be distributed by the Depositary to the record
holders of Receipts entitled thereto as provided by Section 4.1 in
the case of a distribution received in cash.
If registration under the Securities Act of 1933, as amended
(the "Act"), of the securities to which any rights, preferences or
privileges relate is required in order for holders of Receipts to
offer or sell the securities to which such rights, preferences or
privileges relate, the Company agrees with the Depositary that the
Company will notify the Depositary and file promptly a registration
statement pursuant to such Act with respect to such rights,
preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration
statement shall have become effective, or unless the offering
and sale of such securities to such holders are exempt from
registration under the provisions of the Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be
made available to holders of Receipts, the Company agrees with
the Depositary that the Company will notify the Depositary and use
its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.4 Notice of Dividends, etc.; Fixing of Record Date
for Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than
cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to the Stock, or whenever the
Depositary shall receive notice of any meeting or action to be taken
by written consent at or as to which holders of Stock are entitled
to vote or consent, or of which holders of Stock are entitled to
notice, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive a distribution
in respect of such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of any rights to vote or consent at
any such meeting or with respect to any such action, or who
shall be entitled to receive notice of such meeting or such action.
SECTION 4.5 Voting Rights. Upon receipt of notice of any
meeting or action to be taken by written consent at or as to which
the holders of the Stock are entitled to vote or consent, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting or action and
(ii) a statement informing holders of Receipts that they may
instruct the Depositary as to the exercise of the voting rights or
the giving or refusal of consent, as the case may be, pertaining to
the amount of Stock underlying their respective Depositary Shares
and a brief statement as to the manner in which such instructions
may be given. Upon the written request of the holders of
Receipts on the record date (which shall be the same date as the
record date for the Stock), the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, or give or withhold
consent with respect to, in accordance with the instructions set
forth in such requests, the maximum number of whole shares of Stock
underlying the Depositary Shares evidenced by all Receipts as to
which any particular voting or consent instructions are received.
The Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted or give or withhold
consent with respect to such Stock. In the absence of specific
instructions from the holder of a Receipt, the Depositary will
abstain from voting, or giving consents (but, at its discretion, not
from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of a majority of the
Receipts) to the extent of the Stock underlying the Depositary
Shares evidenced by such Receipt. Notwithstanding the foregoing,
the Depositary may, if and as directed by the Company, vote on any
matter on which brokers have discretionary authority to vote (unless
directed to the contrary by the holders of a majority of the
Receipts). The Company also agrees that it will at all times comply
with the proxy rules of the Securities Exchange Act of 1934, as
amended.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par
value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it
is a party or sale of the Company's assets substantially as an
entirety, the Depositary may in its discretion, with the approval
of, and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make
such adjustments in (a) the fraction of an interest in one share of
Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a
share of the Stock, in each case as may be necessary fully to
reflect the effects of such change in par value, split-up,
combination or other reclassification of the Stock, or of such
recapitalization, reorganization, merger, amalgamation or
consolidation or sale and (ii) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or
in respect of the Stock as new deposited securities so received in
exchange for or upon conversion of or in respect of such Stock. In
any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new
deposited securities.
SECTION 4.7 Delivery of Reports. The Depositary will forward
to record holders of Receipts, at their respective addresses
appearing in the Depositary's books, all notices, reports and
communications received from the Company which are delivered to the
Depositary and which the Company is required to furnish to the
holders of Stock or Receipts.
SECTION 4.8 List of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it
a list, as of a recent date, of the names, addresses and holdings of
Stock of all persons in whose names Receipts are registered on the
books of the Depositary.
ARTICLE V
The Depositary, The Depositary's Agents and the Company
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary. Upon execution of this Deposit Agreement,
the Depositary shall maintain at the Depositary's Office, facilities
for the execution and delivery, registration and registration of
transfer, surrender and exchange of Receipts, and at the offices of
the Depositary's Agents, if any, facilities for the delivery,
registration of transfer, surrender and exchange of Receipts, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which
books at all reasonable times shall be open for inspection by the
record holders of Receipts; provided, that any such holder
requesting to exercise such right shall certify to the Depositary
that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on
the New York Stock Exchange or any other stock exchange, the
Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer,
surrender, exchange, redemption or conversion of such Receipts, such
Depositary Shares or such Stock as applicable and as may be required
by law or applicable stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. Neither the
Depositary nor any Depositary's Agent nor the Company shall incur
any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of
the United States of America or of any other governmental authority
or, in the case of the Depositary or any Depositary's Agent, by
reason of any provision, present or future, of the Company's Amended
and Restated Articles of Incorporation (including the Certificate)
or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any Depositary's
Agent or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent or the Company incur any
liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of
any act or thing which the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the gross
negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.3 Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any Depositary's
Agent nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Receipts
other than for the relevant party's gross negligence or willful
misconduct.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Stock,
the Depositary Shares or the Receipts which in its opinion may
involve it in expense or liability unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be
required.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be liable for any action or any failure to act by it
in reliance upon the written advice of legal counsel or accountants,
or information from any person presenting Stock for deposit, any
holder of a Receipt or any other person believed by it in good faith
to be competent to give such information. The Depositary, any
Depositary's Agent and the Company may each rely and shall each be
protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote or give or withhold consent, with
respect to any of the shares of Stock or for the manner or effect of
any such vote or consent, as long as any such action or non-action
is in good faith. The Depositary undertakes to perform such
duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be
read into this Deposit Agreement against the Depositary. The
Depositary will indemnify the Company against any liability which
may arise out of acts performed or omitted by the Depositary or its
agents due to its or their gross negligence or willful misconduct.
The Depositary, the Depositary's Agents and the Company may own and
deal in any class of securities of the Company and its affiliates
and in Receipts. The Depositary may also act as transfer agent and
registrar of any of the securities of the Company and its
affiliates.
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by written notice of its election so
to do delivered to the Company, such resignation to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such
removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter
provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the
delivery of the notice of resignation or removal, as the case may
be, appoint a successor Depositary, which shall be a bank or trust
company having its principal office in the United States of America
and having a combined capital and surplus of at least $50,000,000.
Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and
for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and
on the written request of the Company, shall execute and deliver
an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and
deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts.
Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or, any
further act. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of
the successor Depositary.
SECTION 5.5 Corporate Notices and Reports. The Company agrees
that it will transmit to the Depositary all notices, reports and
communications (including without limitation financial statements)
required by law, the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or
by the Company's Amended and Restated Articles of Incorporation
(including the Certificate) to be furnished by the Company to
holders of the Stock or Receipts.
SECTION 5.6 Indemnification by the Company. The Company shall
indemnify the Depositary and any Depositary's Agent against, and
hold each of them harmless from, any loss, liability or expense
(including the costs and expenses of defending itself) which may
arise out of (i) acts performed or omitted in connection with this
Deposit Agreement and the Receipts (a) by the Depositary or any
Depositary's Agent, except for any liability arising out of the
gross negligence or willful misconduct on the respective parts of
any such person or persons, or (b) by the Company or any of its
agents, or (ii) the offer, sale or registration of the Receipts or
the Stock pursuant to the provisions hereof.
SECTION 5.7 Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. The Company
shall pay all charges of the Depositary in connection with the
initial deposit of the Stock and the initial issuance of the
Receipts, any redemption of the Stock at the option of the Company
and any withdrawals of Stock by holders of Receipts. All other
transfer and other taxes and governmental charges shall be at the
expense of holders of Depositary Shares. If, at the request of a
holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent hereunder
(including, in each case, fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be
paid by the Company after consultation and agreement between the
Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement
for charges and expenses to the Company once every three months or
at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.1 Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time
to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment which imposes
or increases any fees, taxes or charges upon holders of
Depositary Shares or Receipts or which materially and adversely
alters the existing rights of such holders shall be effective unless
such amendment shall have been approved by the record holders of
Receipts evidencing at least a majority of the Depositary Shares
then outstanding. A holder of a Receipt at the time any such
amendment so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be
bound by this Deposit Agreement as amended thereby. Notwithstanding
the foregoing, no such amendment may impair the right of any holder
of Depositary Shares or Receipts to receive any moneys or
other property to which such holder may be entitled under the terms
of such Receipts or this Deposit Agreement at the times and in the
manner and amount provided for therein and herein.
SECTION 6.2 Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after the
occurrence of any of the following events: (i) all outstanding
Depositary Shares shall have been redeemed and any accumulated and
unpaid dividends on the Stock represented by the Depositary Shares,
together with all other moneys and property, if any, to which
holders of the related Receipts are entitled under the terms of
such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision
therefor has been duly made pursuant to Section 2.3, (ii) there
shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the
holders of Receipts pursuant to Section 4.1 or 4.2, as applicable or
(iii) all outstanding Depositary Shares shall have been converted
pursuant to Section 2.4 hereof.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary and any
Depositary's Agent under Sections 5.6 and 5.7.
ARTICLE VII
Miscellaneous
SECTION 7.1 Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same
instrument.
SECTION 7.2 Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and
their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
SECTION 7.4 Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or telecopier confirmed by letter, addressed to the
Company at 630 East Foothill Boulevard, San Dimas, California
91773, to the attention of McClellan Harris III, or at any other
address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by
telecopier confirmed by letter, addressed to the Depositary at the
Depositary's Office, at________________________,________________,
_________________________, to the attention of___________________,
or at any other address of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or by telecopier confirmed by letter, addressed to such
record holder at the address of such record holder as it appears on
the books of the Depositary, or if such holder shall have
filed with the Depositary a written request that notices intended
for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telecopier shall be
deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a
telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any
telecopier message received by it from the other or from any holder
of a Receipt, notwithstanding that such telecopier message shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may from time
to time, with the prior approval of the Company appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of
this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any
such action.
SECTION 7.6 Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance of delivery thereof.
SECTION 7.7 Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS
HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA.
SECTION 7.8 Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business
hours at the Depositary's Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.9 Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth
in Exhibit A hereto have been inserted for convenience only and are
not to be regarded as a part of this Deposit Agreement or the
Receipts or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above
set forth, and all holders of Receipts shall become parties hereto
by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
AMERICAN STATES WATER COMPANY
By:
----------------------------
----------------------------
By:
-----------------------------
<PAGE>
[FORM OF DEPOSIT RECEIPT]
EXHIBIT A
[FORM OF FACE]
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ___________
INTEREST IN A SHARE OF ___%
__________ NEW PREFERRED SHARES
(No Par Value)
OF
AMERICAN STATES WATER COMPANY
(Incorporated under the Laws of the State of California)
This Depositary Receipt is transferable in
Los Angeles, California and New York, New York
NUMBER OF DEPOSITARY SHARES
THIS CERTIFIES THAT ______________________________
IS THE REGISTERED OWNER OF DEPOSITARY SHARES
______________, with an office at the time of the execution of
the Deposit Agreement (as defined below) at ______________________,
as Depositary and Registrar (the "Depositary"), hereby certifies
that the registered owner specified above is the registered owner of
Depositary Shares ("Depositary Shares"), each Depositary Share
representing a __________ interest in a share of _________% ________
New Preferred Shares, no par value (the "Stock"), of American States
Water Company, a corporation duly organized and existing under the
laws of the State of California (the "Company"), on deposit with
the Depositary, subject to the terms and entitled to the benefits of
the Deposit Agreement (the "Deposit Agreement") dated as of
________,___ between the Company, the Depositary and all holders
from time to time of Depositary Receipts (the "Receipts"). By
accepting this Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit
Agreement.
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, through the
Depositary, to all the rights and preferences of the Stock relating
thereto, including dividend, voting, conversion, redemption and
liquidation rights contained in the certificate of determination
adopted by the Company's Board of Directors setting forth the
number, terms, powers, designations, rights, preferences,
qualifications, restrictions and limitations of the Stock (the
"Certificate of Determination"), copies of which are on file at the
Depositary's Office.
This receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless
this Receipt shall have been executed by the manual signature of a
duly authorized officer of the Depositary.
Dated:
---------------------------
Depositary and Registrar
By
--------------------------
Authorized Officer
[FORM OF REVERSE]
1. The Deposit Agreement. The Receipts, of which this
Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement. The Deposit Agreement (copies of
which are on file at the Depositary's Office) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary
and the Company in respect of the Stock deposited, and any and all
other property and cash deposited from time to time, thereunder.
The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are
subject to the detailed provisions thereof, to which reference is
hereby made. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto
in the Deposit Agreement.
[INSERT THE FOLLOWING IF THE STOCK IS REDEEMABLE]
[2.] Redemption. Whenever the Company shall elect, in
accordance with the provisions of the Certificate of Determination
relating to the Stock, to redeem shares of the Stock, it shall
(unless otherwise agreed in writing with the Depositary) mail notice
to the Depositary of such redemption not less than 45 nor more than
75 days prior to the date fixed for redemption. The Depositary
shall mail notice of such redemption and the simultaneous redemption
of the number of Depositary Shares relating to the Stock to be
redeemed not less than 30 and not more than 60 days prior to the
date fixed for redemption to the holders of record of Receipts
evidencing the number of Depositary Shares to be redeemed. Each
such notice shall state: (a) the date of such proposed redemption;
(b) the number of Depositary Shares to be redeemed; (c) the
redemption price (which shall include full cumulative dividends
thereon to the redemption date); (d) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; (e) any conditions to the
redemption if a Conditional Redemption; (f) subject to satisfaction
of any conditions, if a Conditional Redemption, that dividends
in respect of the Stock underlying the Depositary Shares to be
redeemed will cease to accumulate at the close of business on such
redemption date; and (g) subject to satisfaction of any conditions,
if a Conditional Redemption, that the right to convert Depositary
Shares into Common Shares or other securities will expire at the
close of business on the fifth day preceding the redemption date;
the then-effective conversion price and the place or places where
Receipts for such Depositary Shares are to be surrendered for
conversion. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall
be selected by lot or pro rata (subject to rounding to avoid
fractions of Depositary Shares) as may be determined by the
Depositary to be equitable. From and after the date set for
redemption, all dividends in respect of the Depositary Shares so
called for redemption shall cease to accumulate, such Depositary
Shares shall no longer be deemed outstanding and all remaining
rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price and to
convert Depositary Shares into Common Shares or other securities
until the close of business on the _______ day preceding the
redemption date) shall cease and terminate. From and after the
redemption date, upon surrender in accordance with the redemption
notice of the Receipts evidencing any such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per share equal to ___________ of
the redemption price per share paid in respect of the shares of
Stock plus any money or other property relating thereto.
[3.] Transfer, Split-ups and Combinations. This Receipt is
transferable on the books of the Depositary upon surrender of this
Receipt to the Depositary, properly endorsed or accompanied by a
properly executed instrument of transfer, and upon such transfer the
Depositary shall execute a new Receipt to or upon the order of the
person entitled thereto, as provided in the Deposit Agreement. This
Receipt may be split into other Receipts or combined with other
Receipts into one Receipt, representing the same aggregate number of
Depositary Shares as the Receipt or Receipts surrendered.
[4.] Surrender of Receipts and Withdrawal of Stock, Conversion
of Stock. Any holder of a Receipt or Receipts evidencing at least
______ Depositary Shares may withdraw the number of whole shares of
Stock underlying such Depositary Shares and all money and other
property relating thereto by surrendering Receipts evidencing such
Depositary Shares. Thereafter, the Depositary shall deliver to such
holder the number of whole shares of Stock and all money and other
property underlying the Depositary Shares evidenced by the Receipts
so surrendered, but holders of such whole shares of Stock
will not thereafter be entitled to deposit such Stock under the
Deposit Agreement or to receive Receipts evidencing Depositary
Shares therefor. If a Receipt delivered by a holder to the
Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares relating to other than a whole number
of shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and
other property to be so withdrawn, deliver to such holder a new
Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn
may be made by delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person other than the record holder of the
Depositary Shares evidenced by the Receipts being surrendered, such
holder shall deliver a written order so directing the Depositary.
The Depositary may require that Receipts surrendered for
withdrawal of Stock be properly endorsed in blank or accompanied by
a properly executed instrument of transfer.
Delivery of the Stock and the money and other property
underlying the Depositary Shares evidenced by the Receipts
surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense
of the holder surrendering such Receipts and for the account of such
holder, such delivery may be made at such other place as may be
designated by such holder.
THE HOLDER HEREOF ACKNOWLEDGES THAT THERE MAY BE NO MARKET FOR
THE UNDERLYING STOCK AND THAT UPON WITHDRAWAL OF THE STOCK, THE
HOLDER HEREOF WILL NOT BE ENTITLED THEREAFTER TO DEPOSIT SUCH STOCK
UNDER THE DEPOSIT AGREEMENT.
[INSERT THE FOLLOWING PARAGRAPH IF THE STOCK IS CONVERTIBLE
INTO COMMON SHARES. IF CONVERTIBLE INTO OTHER SECURITIES, INCLUDE A
MODIFIED VERSION OF THIS PARAGRAPH.]
The Stock and Depositary Shares are convertible into the Common
Shares. The Company has agreed in Section 2.4 of the Deposit
Agreement to accept the delivery of Receipts for purposes of
effecting conversions of the Stock utilizing the same procedures as
those provided for delivery of certificates for the Stock to effect
such conversions in accordance with the terms and conditions
of the Stock as provided in the Certificate of Determination. Any
whole number of Depositary Shares (whether or not evenly divisible
by _____) represented by a Receipt may be surrendered for
conversion. If the Depositary Shares represented by a Receipt are
to be converted in part only, a new Receipt or Receipts will be
issued by the Depositary for the Depositary Shares not to be
converted. No fractional Common Shares will be issued upon
conversion, and if such conversion will result in a fractional share
being issued, an amount will be paid in cash by the Company equal to
the value of the fractional interest based upon the closing price of
the Common Shares on the last business day prior to the conversion.
For this purpose, a holder of a Receipt or Receipts must surrender
such Receipt or Receipts to the Company, together with a duly
completed and executed Notice of Conversion in the form included
herein. In all cases the foregoing shall be conditioned upon
compliance in full by the holder hereof with the terms and
conditions of the Stock as provided in the Certificate of
Determination and the Deposit Agreement. As more fully set forth in
Section 2.4 of the Deposit Agreement, no adjustments will be made
for accrued dividends upon conversion.
[5.] Suspension of Delivery, Transfer, etc. The transfer or
surrender of this Receipt may be suspended during any period when
the register of shareholders of the Company is closed or if any such
action is deemed necessary, or advisable by the Depositary, any
Depositary's Agent, or the Company at any time or from time to time
because of any requirement of law or of any government or
governmental body or commission, or under any provision of the
Deposit Agreement.
[6.] Filing Proofs, Certificates and Other Information. Any
holder of a Depositary Receipt may be required to file such proof of
residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper.
The Depositary or the Company may withhold the delivery, or delay
the registration of transfer, redemption, exchange or
conversion, of any Receipts, the withdrawal of any Stock underlying
Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof
until such proof or other information is filed or such certificates
are executed or such representations and warranties are made.
[7.] Payment of Taxes or Other Governmental Charges. Except as
otherwise noted herein and in the Deposit Agreement, if any tax or
other governmental charge shall become payable by or on behalf of
the Depositary with respect to this Receipt, such tax (including
transfer taxes, if any) or governmental charge shall be payable by
the holder hereof. Transfer of this Receipt, any withdrawal of
Stock and delivery of all money or other property, if any,
represented by the Depositary Shares evidenced by this Receipt may
be refused until such payment is made, and any dividends, interest
payments or other distributions may be withheld on all or any part
of the Stock or other property relating to this Receipt and
not theretofore sold may be sold for the account of the holder
hereof (after attempting by reasonable means to notify such holder
prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any
payment of such tax or charge, the holder of this Receipt remaining
liable for any deficiency.
[INSERT THE FOLLOWING PARAGRAPH OR A MODIFIED VERSION THEREOF
IF THE STOCK IS CONVERTIBLE.]
[8.] Warranty by Company. The Company has warranted that the
Stock and the Common Shares issuable upon conversion of the
Depositary Shares, when issued, will be validly issued, fully paid
and nonassessable.
[9.] Amendment. The form of the Receipts and any provisions of
the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable; provided,
however, that no such amendment which imposes or increases any fees,
taxes or charges upon holders of Depositary Shares or Receipts
or which materially and adversely alters the existing rights of such
holders shall be effective unless such amendment shall have been
approved by the record holders of Receipts evidencing at least a
majority of the Depositary Shares then outstanding. Notwithstanding
the foregoing, no such amendment may impair the right of any
holder of Depositary Shares or Receipts to receive any moneys or
other property to which such holder may be entitled under the terms
of such Receipts or the Deposit Agreement at the times and in the
manner and amount provided for therein or impair any right the
holder of a Receipt would have if such holder were the record holder
of the Stock to which such Receipt entitles such holder to receive.
A holder of a Receipt at the time any such amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
[10.] Charges of Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements, and all charges
of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Receipts, any redemption of
the Stock at the option of the Company and any withdrawals of
Stock by holders of the Receipts. All other transfer and other
taxes and other governmental charges shall be at the expense of
holders of Depositary Shares. Certain other charges and expenses of
the Depositary and any Depositary's Agent will be paid upon
consultation and agreement between the Depositary and the Company.
[11.] Title to Receipts. This Receipt (and the Depositary
Shares evidenced hereby), when properly endorsed or accompanied by a
properly executed instrument of transfer, is transferable by
delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary, the
Depositary may, notwithstanding any notice to the contrary, treat
the record holder of such Receipt at such time as the absolute owner
thereof for the purpose of determining the person entitled to
receive distributions of dividends or other distributions, withdraw
any Stock underlying the Depositary Shares, exercise any conversion
or voting rights or to receive any notice provided for in the
Deposit Agreement and for all other purposes.
[12.] Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on the Stock,
the Depositary will, subject to the provisions of the Deposit
Agreement, make such distribution to the Receipt holders as nearly
as practicable in proportion to the number of Depositary Shares
evidenced by the Receipts held by them; provided, however, that the
amount distributed will be reduced by any amounts required to be
withheld by the Company or the Depositary on account of taxes and
governmental charges. Other distributions received on the Stock may
be distributed to holders of Receipts as provided in the Deposit
Agreement.
[13.] Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution
other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to Stock, or
whenever the Depositary shall receive notice of any meeting or
action to be taken by written consent at or as to which holders
of Stock are entitled to vote or consent, or of which holders of
Stock are entitled to notice, the Depositary shall in each instance
fix a record date (which shall be the record date fixed by the
Company with respect to the Stock), for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds
of the sale thereof, or to give instructions for the exercise of
rights to vote or consent at any such meeting, or who shall be
entitled to notice of such meeting or action.
[14.] Voting Rights. Upon receipt of notice of any meeting or
action to be taken by written consent at or as to which holders of
Stock are entitled to vote or consent, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a
notice, including any proxy statement, which shall contain (i) such
information as is contained in such notice of meeting or action and
(ii) a statement informing holders of Receipts that they may
instruct the Depositary as to the exercise of the voting rights or
the giving or refusal of consent, as the case may be, pertaining to
the amount of Stock underlying their respective Depositary Shares
and a brief statement as to the manner in which such instructions
may be given. Upon the written request of a holder of a Receipt on
the record date (which will be the same date as the record
date for the Stock), the Depositary shall endeavor insofar as
practicable to vote or cause to be voted or give or withhold consent
with respect to, the amount of Stock underlying such Receipt in
accordance with the instructions set forth in such request. In the
absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting or giving consents (but, at
its discretion, not from appearing at any meeting with respect to
such Stock unless directed to the contrary by the holders of a
majority of Receipts) to the extent of the Stock underlying the
Depositary Shares evidenced by such Receipt.
[15.] Changes Affecting Deposited Stock. Upon any change in
par value, split-up, combination or any other reclassification of
the Stock or upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it
is a party, or upon the sale of the Company's assets
substantially as an entirety, the Depositary may in its discretion
with the approval of, and shall upon the instructions of, the
Company, and in such manner as the Depositary may deem equitable,
(i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of
the redemption price per Depositary Share to the redemption
price of a share of Stock, in each case as may be necessary fully to
reflect the effect of such change and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities
so received in exchange for or upon conversion of or in respect of
such Stock. In any such case the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of outstanding Receipts to
be exchanged for new Receipts specifically describing such new
deposited securities.
[16.] Liability and Obligations of the Depositary, the
Depositary's Agents or the Company. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall
be subject to any liability under the Deposit Agreement to any
holder of any Receipt, other than for its gross negligence or
willful misconduct. Neither the Depositary nor any Depositary's
Agent nor the Company shall incur any liability to any holder of any
Receipt if by reason of any provision of any present or future law
or regulation thereunder of the United States of America or any
other governmental authority or, in the case of the Depositary
or any Depositary's Agent, by reason of any provision, present or
future, of the Company's Amended and Restated Articles of
Incorporation (including the Certificate of Determination) or by
reason of any act of God or war or other circumstance beyond their
control, the Depositary, any Depositary's Agent or the Company shall
be prevented or forbidden from doing or performing any act or thing
which the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the
Company incur any liability to any holder of a Receipt by reason of
nonperformance or delay, caused as aforesaid, in performance of any
act or thing which by the terms of the Deposit Agreement it is
provided shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in
the Deposit Agreement, other than for its gross negligence or
willful misconduct. Neither the Depositary nor any Depositary's
Agent nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect
of the Stock, the Depositary Shares or the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished.
The Deposit Agreement contains various other exculpatory,
indemnification and related provisions, to which reference is
hereby made.
[17.] Resignation and Removal of Depositary. The Depositary
may at any time (i) resign by written notice of its election to do
so delivered to the Company, such resignation to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment, or (ii) be removed by the Company effective upon the
appointment of a successor Depositary and its acceptance of such
appointment.
[18.] Termination of Deposit Agreement. The Deposit Agreement
may be terminated by the Company or the Depositary only after the
occurrence of any of the following events: (i) all outstanding
Depositary Shares shall have been redeemed and any accumulated and
unpaid dividends on the Stock represented by the Depositary
Shares, together with all other moneys and property, if any, to
which holders of the related Receipts are entitled under the terms
of such Receipts or the Deposit Agreement, have been paid or
distributed as provided in the Deposit Agreement or provision
therefor has been duly made or (ii) there shall have been made a
final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the holders of the
Receipts [or (iii) all outstanding Depositary Shares shall have been
converted]. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations thereunder except
for its obligations to the Depositary with respect to indemnification,
charges and expenses.
[19.] Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY
DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A
STATEMENT OF THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE
DEPOSIT AGREEMENT WHICH APPEARS IN THE RECEIPTS. THE DEPOSITARY
MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY,
GENUINENESS OR SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH
THE DEPOSITARY HEREUNDER OR OF THE DEPOSITARY SHARES, AS TO THE
VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF
THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE
RECORDHOLDERS OF THE RECEIPTS TO THE DEPOSITARY SHARES.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER
WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF
STOCK OR SERIES THEREOF WHICH THE COMPANY IS AUTHORIZED TO ISSUE AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE
___________ OF THE COMPANY.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ____________ Custodian _________________
(Cust) (Minor)
under the Uniform Gifts to Minors Act __________
(State)
Additional abbreviations may also be used though not in the
above list.
For value received, ____________________hereby sell(s), assign(s)
and transfer(s) unto ________________________________
(Please insert social security or
other identifying number of Assignee)
_________________________________________________________________
(Please print or typewrite Name and address including postal
zip code of Assignee)
_______________ Depositary Shares represented by the within Receipt
and all rights thereunder, and do hereby irrevocably constitute and
appoint _____________ Attorney to transfer said Depositary Shares on
the books of the within-named Depositary with full power of
substitution in the premises.
Dated: _______________________
____________________________________
NOTICE. The signature(s) to this
assignment must correspond with
the name(s) as written upon the
face of this instrument in every
particular, without alteration
or enlargement or any change
whatever.
SIGNATURE(S) GUARANTEED
By: _________________________
[INCLUDE THE FOLLOWING OR A MODIFIED VERSION
IF THE STOCK IS CONVERTIBLE]
NOTICE OF CONVERSION
The undersigned holder of this Receipt for Depositary Shares
(the "Depositary Shares") hereby irrevocably exercises the option to
convert _______ Depositary Shares evidenced thereby into Common
Shares (and any other applicable securities or property) of the
Company in accordance with the terms and conditions of the Deposit
Agreement, dated as of _______, _____, among the Company,
___________________________, as Depositary, and the holders from
time to time of Receipts referred to in such Deposit Agreement, and
directs that certificates for the securities deliverable upon such
conversion be registered in the name of and delivered, together with
a check in payment for any fractional shares and any other property
deliverable upon which conversion to the undersigned unless a
different name has been indicated below. If securities are to be
registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect
thereto. If the number of Depositary Shares indicated above is less
than the number of Depositary Shares evidenced by this Receipt, the
undersigned directs the Depositary to issue to the undersigned,
unless a different name is indicated below, a new Receipt evidencing
the Depositary Shares not so converted.
Dated: ______________________ Signature __________________________
NOTE: The signature(s) to this
exercise notice must correspond
with the name(s)as written upon
the face of the Receipt in
every particular, without
alteration or enlargement, or
any change whatever.
(Please print name and address of registered holder)
Name ______________________________________________
Taxpayer Identification Number ____________________
Address ___________________________________________
(Please indicate other delivery instructions, if
applicable)
Name ______________________________________________
Address ___________________________________________
<PAGE>
EXHIBIT 4.03
FORM OF CERTIFICATE FOR COMMON SHARES
[Front of Certificate]
COMMON STOCK
AMERICAN STATES WATER COMPANY
SHARES [Box for indicating number of shares]
See reverse for statements relating to rights, preferences, privileges
and restrictions, if any.
CUSIP 029899 10 1
Incorporated under the laws of the State of Delaware.
This Certificate is transferable in the cities of Ridgefield Park, NJ
or New York, NY.
[LOGO]
Fully paid and nonassessable shares of the Common Stock, no par value, of
AMERICAN STATES WATER COMPANY
transferable on the books of the Corporation by the holder hereof in
person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. This Certificate is not valid until countersigned by
the Transfer Agent and registered by the Registrar.
["CERTIFICATE OF STOCK" is overlaid on the preceding paragraph]
WITNESS the seal of the Corporation and the facsimile signatures of its
duly authorized officers.
Dated:
/s/ McClellan Harris III
- ---------------------------
Secretary
[CORPORATE SEAL]
/s/ Floyd E. Wicks
- ---------------------
President
Countersigned and registered: ChaseMellon Shareholder Services, L.L.C.
Transfer Agent and Registrar
By:__________________
Authorized Signature
[Back of Certificate]
The Corporation is authorized to issue two classes of stock, Common Stock
and Preferred Stock. The Board of Directors of the Corporation has the
authority to fix the number of shares and the designation of any series of
Preferred Stock and to determine or alter the rights, preferences, privileges
and restrictions granted to or imposed upon any unissued series of Preferred
Stock.
A statement of the rights, preferences, privileges and restrictions granted to
or imposed upon the respective classes or series of shares and upon the
holders thereof as established by the Articles of Incorporation of the
Corporation and by any certificate of determination, and the number of
shares constituting each class or series and the designations thereof,
may be obtained by any shareholder of the Corporation upon written request
and without charge from the Secretary of the Corporation at its corporate
headquarters.
KEEP THIS CERTIFICATE IN A SAFE PLACE, IF IT IS LOST, STOLEN OR DESTROYED
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE
ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________________ Custodian _______________________
(cust) (minor)
under Uniform Gift to Minors Act _______________________
(state)
UNIF TRF MIN ACT ________________ Custodian (until age )
(cust)
under Uniform Transfers __________________________
(minor)
to Minors Act ____________________________________
(state)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _________________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE [Box for
indicating Social Security Number]
- -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- -------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------
Shares of the capital stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint
Attorney
- -----------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
---------------------
X
-----------------------------------
X
-----------------------------------
The signature(s) to the assignment must correspond with the name(s) as written
upon the face of the certificate in every particular, without alteration or
enlargement or any change whatsoever.
Signature(s) Guaranteed
By
------------------------
The signature(s) must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program). Pursuant
to SEC Rule 17Ad-15.
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent (as the same may
be amended from time to time, the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Company. Under certain circumstances,
as set forth in the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by this certificate.
The Company will mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring Person or any
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement) or certain transferees of any subsequent holder, may be limited
as provided in Section 7(f) of the Rights Agreement.
<PAGE>
EXHIBIT 12.01
RATIOS OF EARNINGS TO FIXED CHARGES AND TOTAL FIXED CHARGES
<TABLE>
<CAPTION>
======================================================================================
12 Months Ended Year Ended December 31,
September 30, 1998 1997 1996 1995 1994 1993
------------------ --------------------------------------------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Income from Continuing $14,607 $14,059 $13,460 $12,165 $11,338 $ 2,016
Operations
Taxes on Income $11,098 $ 9,830 $10,283 $ 8,784 $ 8,865 $ 5,491
Interest Charges $10,979 $10,157 $10,500 $ 9,559 $ 7,828 $ 8,378
Earnings Available for $36,684 $34,046 $34,243 $30,508 $28,031 $25,895
Fixed Charges
Total Fixed Interest Charges $10,979 $10,157 $10,500 $ 9,559 $7,828 $ 8,378
Ratio of Earnings to Fixed 3.34 3.35 3.26 3.19 3.58 3.09
Charges
Preferred Dividends $91 $92 $94 $96 $98 $100
Effective Tax Rate 43.3% 42.3% 43.7% 41.8% 45.0% 23.5%
Tax-effected Preferred Dividends $160 $159 $167 $165 $178 $131
Ratio of Earnings to Total
Fixed Charges 3.29 3.30 3.21 3.14 3.50 3.04
</TABLE>
<PAGE>
EXHIBIT 23.01
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration of our reports dated
February 12, 1998 incorporated by reference in Southern California
Water Company's Form 10-K for the year ended December 31, 1997 and to
all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
--------------------------
ARTHUR ANDERSEN LLP
Los Angeles, California
November 30, 1998
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM T-1
Statement of Eligibility and Qualification
Under the Trust Indenture
Act of 1939 of a Corporation
Designated to Act as Trustee
-----------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(B)(2)___
-----------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified
in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------------
SOUTHERN CALIFORNIA WATER COMPANY
(Exact name of Obligor as specified in its charter)
CALIFORNIA
(State or other jurisdiction of incorporation or organization)
95-1243678
(I.R.S. Employer Identification No.)
630 EAST FOOTHILL BOULEVARD
SAN DIMAS, CA
(Address of principal executive offices)
91773
(Zip Code)
---------------------------
Debt Securities
(Title of Indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the Obligor is an affiliate of the trustee, describe
each such affiliation.
None.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES
(a) Title of the securities outstanding under each such
other indenture:
$30,600,000 Series A Medium Term Notes issued under
Indenture dated as of 9/1/93
$45,000,000 Series B Medium Term Notes issued under
Indenture dated as of 9/1/93
(b) A brief statement of the facts relied upon as a
basis for the claim that no conflicting interest
within the meaning of Section 310(b)(1)of the Act
arises as a result of the trusteeship under any
such other indenture, including a statement as
to how the indenture securities with rank as
compared with the securities issued under such
other indenture.
The Trustee is not deemed to have a conflicting
interest within the meaning of Section 310 (b)(1)
of the Act because(i)the indenture securities
referenced in (a)above(the "Prior Securities")
are not in default and (ii)proviso(i)under
310(b)(1)is applicable and excludes the
operations of 310 (b)(1) as the indenture
to be qualified and the indenture entered into
in connection with the Prior Securities (the
"Prior Indenture") are wholly unsecured and rank
equally and the Prior Indenture is specifically
described in the indenture to be qualified.
<PAGE>
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement
of eligibility.
Exhibit 1. Articles of Association of the Trustee
as Now in Effect(see Exhibit 1 to Form
T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated
by reference).
Exhibit 2. Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1
filed in connection with Registration Statement
No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise
Corporate Trust powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by
reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section
321 (b) of the Act (see Exhibit 6 to Form T-1
filed in connection with Registration Statement
No. 333-41329, which is incorporated by
reference).
Exhibit 7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the
requirements of its supervising or examining
authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National
Association, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of San Francisco, and
State of California, on the 13th day of November, 1998.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ Paula Oswald
----------------------------
Paula Oswald
Assistant Vice President
<PAGE>
EXHIBIT 7. Report of Condition of the Trustee.
CONSOLIDATED REPORT OF CONDITION OF
Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
LOCATED AT 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
------------------------------------------------------
(Street) (City) (State)(Zip)
AS OF CLOSE OF BUSINESS ON September 30, 1998
------------------
<TABLE>
<CAPTION>
==================================================================================
ASSETS
DOLLAR AMOUNTS IN THOUSANDS
<S> <C> <C>
1. Cash and balances due from
a. Noninterest-bearing balances and currency and coin <1><2> 911
b. Interest bearing balances <3> 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A) 0
b. Available-for-sale securities (from Schedule RC-B, column D) 1,080
3. Federal Funds sold <4> and securities purchased agreements
to resell 47,620
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) 11
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 11
5. Trading assets 0
6. Premises and fixed assets (including capitalized leases) 350
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 0
9. Customers liability to this bank on acceptances outstanding 0
10. Intangible assets (from Schedule RC-M) 1,470
11. Other assets (from Schedule RC-F) 3,288
12a. TOTAL ASSETS 54,730
b. Losses deferred pursuant to 12 U.S.C. 1823 (j) 0
c. Total assets and losses deferred pursuant to 12 U.S.C. 1823 (j)
(sum of items 12.a and 12.b) 54,730
==================================================================================
<FN>
<1> includes cash items in process of collection and unposted
debits.
<2> The amount reported in this item must be greater than or equal
to the sum of Schedule RC-M, items 3.a and 3.b
<3> includes time certificates of deposit not held for trading.
<4> Report "term federal funds sold" in Schedule RC, item 4.a
"Loans and leases, net of unearned income" and in Schedule
RC-C, part 1.
</FN>
</TABLE>
<PAGE>
<TABLE>
==================================================================================
LIABILITIES
<CAPTION>
<S> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E) 24,839
(1) Noninterest-bearing 6,558
(2) Interest-bearing 18,281
b. In foreign offices, Edge and Agreement subsidiaries,
and IBF
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under agreements
to repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year through three years 0
c. With a remaining maturity of more than three years 0
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 5,033
21. Total liabilities (sum of items 13 through 20) 29,872
22. Not applicable
<CAPTION>
EQUITY CAPITAL
<S> <C> <C>
23. Perpetual preferred stock and related surplus 0
24. Common stock 600
25. Surplus (exclude all surplus related to preferred stock) 12,590
26. a. Undivided profits and capital reserves 11,667
b. Net unrealized holding gains (losses) on available-for-sale
securities 1
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 24,858
b. Losses deferred pursuant to 12 U.S.C. 1823 (j) 0
c. Total equity capital and losses deferred pursuant to
12 U.S.C. 1823 (j) (sum of items 28.a and 28.b) 24,858
29. Total liabilities, equity capital, and losses deferred pursuant
to 12 U.S.C. 1823 (j) (sum of items 21 and 28.c) 54,730
===================================================================================
</TABLE>
