<PAGE> 1
As filed with the Securities and Exchange Commission on March 21, 1994.
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
_______________
CENTRAL POWER AND LIGHT COMPANY
(Exact name of registrant as specified in its charter)
Texas 74-0550600
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
539 North Carancahua Street
Corpus Christi, Texas 78401-2802
(512) 881-5300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_______________
ROBERT R. CAREY GEORGE J. FORSYTH, Esq.
President and Chief Executive Officer Milbank, Tweed, Hadley & McCloy
Central Power and Light Company 1 Chase Manhattan Plaza
539 North Carancahua Street New York, New York 10005
Corpus Christi, Texas 78401-2802 (212) 530-5000
(512) 881-5300
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
______________
Approximate date of commencement of proposed sale to the public: From
time to time after the Registration Statement becomes effective.
_______________
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, as amended, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
_______________
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be Price Offering Registration
to be Registered Registered Per Unit* Price* Fee
- ----------------------------------------------------------------------------
Preferred Stock,
$100 par value 750,000 shares $100.00 $75,000,000 $25,862
============================================================================
*Estimated solely for the purpose of calculating the registration fee.
_______________
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, as amended, or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
============================================================================
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*************************************************
* SUBJECT TO COMPLETION, DATED March 21, 1994 *
*************************************************
PROSPECTUS
750,000 SHARES
CENTRAL POWER AND LIGHT COMPANY
PREFERRED STOCK, $100 PAR VALUE
_______________
Central Power and Light Company (the "Company") intends to offer from
time to time, in one or more series, up to 750,000 shares of Preferred Stock,
$100 par value per share ("New Preferred Stock") on terms to be determined at
the time of offering.
The series designation, aggregate number of shares, initial public
offering price, dividend rate (or method of calculation thereof), dividend
payment dates, redemption and sinking fund provisions (if any), and any other
specific terms of each series of the New Preferred Stock in respect of which
this Prospectus is being delivered ("Offered Preferred Stock"), will be set
forth in a Prospectus Supplement (the "Prospectus Supplement") to be delivered
at the time of the offering and sale of the Offered Preferred Stock. See
"DESCRIPTION OF THE NEW PREFERRED STOCK" herein.
The Company may sell the New Preferred Stock in one or more series to or
through underwriters or dealers designated from time to time through
competitive bidding, or through negotiation, or directly to other purchasers
or through agents. The Prospectus Supplement applicable to any series of
Offered Preferred Stock will set forth the initial public offering price, the
proceeds to the Company, the names of any purchasers, underwriters or agents
and any applicable discounts or commissions with respect to the New Preferred
Stock being offered. See "PLAN OF DISTRIBUTION" herein.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_______________
The Date of this Prospectus is _____________, 1994.
<PAGE> 4
****************************************************************************
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed with *
* the Securities and Exchange Commission. These securities may not be sold*
* nor may offers to buy be accepted prior to the time the registration *
* statement becomes effective. This Prospectus shall not constitute an *
* offer to sell or the solicitation of an offer to buy nor shall there be *
* any sale of these securities in any State in which such offer, solici- *
* tation or sale would be unlawful prior to registration or qualification *
* under the securities laws of any such State. *
****************************************************************************
<PAGE> 5
No dealer, salesman or any other person has been authorized to give
any information or to make any representation not contained or incorporated
by reference in this Prospectus and, with respect to any series of New
Preferred Stock, the Prospectus Supplement relating thereto, and if given or
made, such information or representation must not be relied upon as having
been authorized by the Company or any underwriter, dealer or agent. Neither
this Prospectus nor any Prospectus Supplement constitutes an offer to sell
or a solicitation of an offer to buy any of the securities offered hereby or
thereby in any jurisdiction to any person to whom it is unlawful to make
such offer in such jurisdiction. Neither the delivery of this Prospectus or
any Prospectus Supplement nor any sale made hereunder or thereunder shall,
under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or thereof or
that the information contained or incorporated by reference herein or
therein is correct as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549-1004; and at the Commission's Regional Offices at 500
West Madison St., Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can
also be obtained at prescribed rates from the Public Reference Section of
the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549.
It is the Company's current practice to prepare and mail to the
holders of its Preferred Stock copies of the Company's annual financial
reports. Such reports contain certain financial information that is
examined and reported upon, with an opinion expressed, by the Company's
independent public accountants.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated by reference in
this Prospectus.
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
2. The Company's Current Report on Form 8-K dated March 10, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the New Preferred Stock
shall be deemed to be incorporated by reference into this Prospectus from
their respective dates of filing.
<PAGE> 6
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH
PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS HAS BEEN
DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF
ANY OR ALL OF THE FOREGOING DOCUMENTS INCORPORATED HEREIN BY REFERENCE
(OTHER THAN EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY
INCORPORATED BY REFERENCE INTO THE INFORMATION THAT THE REGISTRATION
STATEMENT INCORPORATES). WRITTEN OR TELEPHONE REQUESTS SHOULD BE DIRECTED
TO DAVID P. SARTIN, CONTROLLER, CENTRAL POWER AND LIGHT COMPANY, 539 NORTH
CARANCAHUA STREET, CORPUS CHRISTI, TEXAS 78401-2802, TELEPHONE NUMBER (512)
881-5300.
<PAGE> 7
PROSPECTUS SUMMARY
The following material is qualified in its entirety by, and should be
read in conjunction with, the information appearing elsewhere in this
Prospectus, in the applicable Prospectus Supplement and in the documents,
financial statements and other information incorporated by reference in this
Prospectus.
THE COMPANY
Business....................... A public utility engaged in the
production, purchase, transmission,
distribution and sale of electricity
Service Area................... Approximately 44,000 square miles in
South Texas
Population of Service Area
(December 31, 1993)........... Approximately 1,945,000
Customers (December 31, 1993).. Approximately 589,000
SELECTED FINANCIAL INFORMATION
(Dollars in Thousands)
Year Ended December 31,
1993 1992 1991
----------------------------------------
Operating Revenues.............. $1,223,528 $1,113,423 $1,098,730
Operating Income................ 190,079 266,665* 249,573*
Net Income before cumulative
effect of a change in
accounting principles.......... 145,130 218,511 217,206
Cumulative effect of changes
in accounting principles....... 27,295 - -
Net Income...................... 172,425 218,511 217,206
Net Utility Plant............... 3,453,306 3,406,088* 3,450,007*
_____________________
* For comparison purposes, certain financial statement items have
been reclassified to conform to the 1993 presentation.
Capitalization at
December 31, 1993
---------------------
Long-Term Debt...................... $1,363,258 44.5%
Preferred Stock..................... 275,841 9.0
Common Equity....................... 1,424,195 46.5
---------- ------
$3,063,294 100.0%
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<PAGE> 8
THE COMPANY
Central Power and Light Company, a Texas corporation (the "Company"),
is a public utility company engaged in the production, purchase,
transmission, distribution and sale of electricity in South Texas. Central
and South West Corporation ("CSW"), a registered public utility holding
company under the Public Utility Holding Company Act of 1935, as amended
(the "1935 Act"), owns all of the issued and outstanding Common Stock of the
Company. The Company's executive offices are located at 539 North
Carancahua Street, Corpus Christi, Texas 78401-2802, telephone number (512)
881-5300.
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends
(unaudited):
Year Ended December 31,
-----------------------------------------------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
2.31 2.77 2.65 2.50 1.99
For computation of the ratio: (i) earnings consist of operating
income plus Federal income taxes, deferred income taxes and investment tax
credits, other income and deductions, allowance for funds (both borrowed and
equity) used during construction, STP carrying costs and mirror CWIP
amortization; (ii) combined fixed charges consist of interest on long-term
debt and short-term debt, and other interest charges; and (iii) preferred
stock dividends consist of an amount equal to the pre-income tax earnings
necessary to cover the preferred dividend requirements of the Company.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement, the Company
intends to use the net proceeds from the sale of the New Preferred Stock
offered hereby to redeem, repurchase or reimburse the Company's treasury for
the redemption or repurchase of certain of the Company's outstanding
Preferred Stock. Any net proceeds not used for such purposes, will be used
to repay outstanding short-term borrowings incurred and expected to be
incurred, to provide working capital and for other general corporate
purposes.
DESCRIPTION OF THE NEW PREFERRED STOCK
General. The total authorized capital stock of the Company is
3,035,000 shares of Preferred Stock, par value $100 per share, issuable in
series, and 12,000,000 shares of Common Stock, par value $25 per share
("Common Stock"). At March 1, 1994 2,758,750 shares of Preferred Stock and
6,755,535 shares of Common Stock were issued and outstanding. Each issue of
New Preferred Stock will be a series of the Preferred Stock and the
aggregate amount of shares of New Preferred Stock issued will not exceed
750,000 shares. The term "Preferred Stock," unless the context otherwise
indicates, means all shares of Preferred Stock of all series now outstanding
and hereafter issued, including the New Preferred Stock.
<PAGE> 9
The terms and provisions of the New Preferred Stock are set forth in
the Restated Articles of Incorporation, as amended, of the Company (the
"Articles") and in resolutions to be adopted by the Board of Directors or a
Committee thereof authorizing and establishing each series of the New
Preferred Stock. The following description sets forth certain general terms
and provisions of the New Preferred Stock to which any Prospectus Supplement
may relate. The particular terms of the New Preferred Stock offered by any
Prospectus Supplement and the extent, if any, to which such general
provisions may apply to the New Preferred Stock so offered will be described
therein. The statements herein, which make use of defined terms and are not
complete, are qualified by and subject to all provisions of the Articles, a
copy of which is filed as an exhibit to the Registration Statement.
Authorized and unissued shares of Preferred Stock may be issued as
additional shares of any outstanding series thereof, or in one or more other
series with such varying designations, dividend and redemption provisions,
liquidation prices and other characteristics as the Board of Directors may
authorize (subject to restriction now or hereafter provided by law or in the
Articles or amendments thereto). All shares of Preferred Stock of all
series constitute one class of stock, are of equal rank and, except as to
the characteristics referred to above, confer equal rights.
Dividend Rights. Holders of Preferred Stock are entitled, in respect
of each share held, to cumulative dividends on the par value thereof at the
annual rate specified in the designation of the series in which such share
is issued, in preference to the Common Stock. Holders of Preferred Stock
are not entitled to receive any other dividends. Dividends on each series
of the New Preferred Stock will be payable on the dates and as provided in
the resolutions authorizing the initial issue of shares of such series,
when, as and if declared by the Board of Directors. Dividends are payable
out of the surplus or net profits of the Company available for the purpose.
When full cumulative dividends have been paid on or declared and set aside
for payment in respect of all shares of the Preferred Stock, the Board of
Directors may then declare dividends on the Common Stock.
Redemption Provisions. The optional redemption provisions, if any,
for each series of New Preferred Stock will be described in the Prospectus
Supplement relating thereto.
The Company, on the sole authority of its Board of Directors, may
redeem shares of any outstanding series of the Preferred Stock in accordance
with, and at the redemption price or prices as provided in, the Articles and
the resolutions authorizing and establishing the applicable series of
Preferred Stock. The redemption price paid by the Company for the
redemption of shares of any series of the Preferred Stock shall include
accrued and unpaid dividends to the date of redemption. The Articles
provide that the Company shall not redeem, purchase or otherwise acquire
less than all the outstanding shares of the Preferred Stock if at the time
of such redemption, purchase or other acquisition, dividends payable on the
Preferred Stock are in default in whole or in part, unless prior thereto all
such defaults in dividends shall have been cured, or unless the Commission
ordered, approved or permitted such action under the 1935 Act.
<PAGE> 10
Sinking Fund. The sinking fund provisions, if any, for each series of
New Preferred Stock will be described in the Prospectus Supplement relating
thereto.
Liquidation Rights. In the event of the involuntary liquidation,
dissolution or winding up of the Company, the holders of the Preferred Stock
shall be entitled to be paid in full, out of the net assets of the Company,
the par value of their shares plus accrued dividends on such shares, and no
more, before any amount shall be paid or distributed to holders of Common
Stock. In the event of the voluntary liquidation, dissolution or winding up
of the Company, the holders of the Preferred Stock shall be entitled to
receive the then effective redemption price thereof plus accrued dividends,
and no more. With respect to the Company's outstanding 4% Preferred Stock,
the liquidation preference is the par value thereof plus accrued dividends
in the case of both voluntary and involuntary liquidation.
Voting Rights. The Preferred Stock has no voting rights for the
election of directors or otherwise, except as expressly provided in the
Articles and summarized under this subcaption and under the subcaption
"Restrictions on Certain Corporate Action" below, and except as may be
required by law. In such excepted cases, each share of Preferred Stock is
entitled to one vote. During any period when dividends on the Preferred
Stock are in default in an amount equal to annual dividend payments or more
per share, and thereafter until all dividends in default on such stock have
been paid, the Preferred Stock as a class is entitled to elect the smallest
number of directors necessary to constitute a majority of the full Board.
Restrictions on Certain Corporate Action. The vote or consent of at
least two-thirds of the outstanding shares of the Preferred Stock of all
series voting as a class is required for (i) the authorization or creation
of any class of stock ranking prior to the Preferred Stock as to dividends
or assets or any security convertible into such prior stock, or for the
issue of any of such prior stock or convertible security more than one year
after such vote or consent; or (ii) any adverse change in the rights,
preferences or powers of the holders of the Preferred Stock. The vote or
consent of a majority of the outstanding shares of the Preferred Stock of
all series voting as a class is required for (i) any merger or
consolidation, or any sale or disposition of substantially all the assets of
the Company, unless ordered, approved or permitted under the 1935 Act; (ii)
the issue of any shares of Preferred Stock or of any stock on a parity
therewith, except in exchange for or to effect the retirement of at least an
equal amount of the Preferred Stock or of such parity stock, unless (1) the
gross income of the Company (computed as provided in the Articles) for
twelve consecutive calendar months ending within the fifteen calendar months
immediately preceding the issue of such additional shares is at least one
and one-half times the sum of (a) the annual interest charges on all
indebtedness of the Company represented by bonds, notes or other securities
to be outstanding after the issue of the additional shares, and (b) the
annual dividend requirements on the Preferred Stock and on all prior or
parity stock to be outstanding after the issue of the additional shares, and
(2) common stock equity of the Company (computed as provided in the
Articles) is not less than the total amount payable upon involuntary
liquidation, dissolution or winding up of the Company in respect of the
Preferred Stock and all prior or parity stock to be outstanding after the
<PAGE> 11
issue of the additional shares; or (iii) the issue or assumption of any
unsecured notes, debentures or other securities representing unsecured
indebtedness ("unsecured obligations") except to refund outstanding
unsecured obligations resulting in later maturities or to fund existing
unsecured indebtedness not represented by unsecured obligations, if
immediately after such issue or assumption (1) the principal amount of
unsecured obligations would exceed 20 percent of the aggregate of the
principal amount of secured indebtedness and the total capital stock and
surplus of the Company, or (2) the principal amount of all unsecured
obligations maturing in less than ten years (computed as provided in the
Articles) would exceed ten percent of such aggregate.
Limitations on Dividends on Common Stock. So long as any shares of
Preferred Stock are outstanding, the Articles limit the declaration or
payment of dividends on Common Stock in any 12-month period ending with and
including the date on which a particular dividend is proposed to be paid (a)
to 75 percent of the net income available for Common Stock dividends for the
12 months ending within 60 days next preceding the month in which such
dividend is proposed to be declared if the ratio of Common Stock equity to
total capitalization of the Company is or would be 20 percent or more but
less than 25 percent, and (b) to 50 percent of such net income if the ratio
is or would be less than 20 percent; plus any amounts that could have been
declared as dividends pursuant to such limitations, but which were not
actually declared, during any previous year or years. If such ratio is 25
percent or more, the total amount of all Common Stock dividends may not
exceed a sum which would reduce such ratio below 25 percent, except to the
extent permitted by clauses (a) or (b) above. At December 31, 1993, such
ratio was approximately 46.5 percent.
Miscellaneous. The Preferred Stock has no conversion rights nor any
preemptive right to subscribe for or purchase any securities issued by the
Company. The New Preferred Stock, when issued as herein contemplated, will
be fully paid and nonassessable. The Company reserves the right in its
Articles to increase or decrease its authorized capital stock or any class
or series thereof, or to reclassify the same, and to change any provision
contained in its Articles or any future amendment thereto as then in effect,
in the manner now or hereafter prescribed by law, but subject to the
conditions and limitations prescribed in the Articles as then in effect; and
all rights granted to shareholders in the Articles or any future amendment
thereto, are granted subject to such reservation.
The Transfer Agent and Registrar for the New Preferred Stock is
Central and South West Services, Inc., a subsidiary of CSW.
PLAN OF DISTRIBUTION
The Company may sell the New Preferred Stock offered hereby (i)
through competitive bidding; (ii) through negotiation with one or more
underwriters; (iii) through one or more agents designated from time to time;
(iv) directly to purchasers; or (v) any combination of the above. The
Prospectus Supplement with respect to the Offered Preferred Stock will set
forth the terms of the offering of the Offered Preferred Stock, including
the name or names of any underwriters and the amount of Offered Preferred
Stock to be purchased by each underwriter, the purchase price of such
<PAGE> 12
Offered Preferred Stock and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid
to dealers may be changed from time to time.
If an underwriter or underwriters are utilized in the sale, the
Company will execute an underwriting agreement with such underwriters at the
time of sale. The Offered Preferred Stock will be acquired by the
underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of the
sale. Unless otherwise indicated in the Prospectus Supplement, the
underwriting agreement will provide that the underwriter or underwriters are
obligated to purchase all of the Offered Preferred Stock offered in the
Prospectus Supplement if any are purchased.
If any of the New Preferred Stock is sold through an agent or agents
designated by the Company from time to time, the Prospectus Supplement will
name any such agent, set forth any commissions payable by the Company to any
such agent and the obligations of such agent with respect to the Offered
Preferred Stock. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment.
The New Preferred Stock of any series, when first issued, will have no
established trading market. Any underwriters or agents to or through whom
New Preferred Stock is sold by the Company for public offering and sale may
make a market in such New Preferred Stock, but such underwriters or agents
will not be obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity of the
trading market for any New Preferred Stock.
In connection with the sale of the New Preferred Stock, any
purchasers, underwriters or agents may receive compensation from the Company
or from purchasers in the form of concessions or commissions. The
underwriters will be, and any agents and any dealers participating in the
distribution of the New Preferred Stock may be, deemed to be underwriters
within the meaning of the Securities Act of 1933, as amended (the "Act").
The agreement between the Company and any purchasers, underwriters or agents
will contain reciprocal covenants of indemnity, and will provide for
contribution by the Company in respect of its indemnity obligations, between
the Company and the purchasers, underwriters, or agents against certain
liabilities, including liabilities under the Act.
Certain of the underwriters or agents and their associates may engage
in transactions with, or perform services for, the Company and its
affiliates in the ordinary course of business.
<PAGE> 13
LEGAL OPINIONS
Certain legal matters in connection with the New Preferred Stock will
be passed upon for the Company by Milbank, Tweed, Hadley & McCloy, New York,
New York as to U.S. Federal and New York State law and Vinson & Elkins
L.L.P., Dallas, Texas as to Texas law, and for the Underwriters by Sidley &
Austin, Chicago, Illinois.
EXPERTS
The audited financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the Registration Statement
have been audited by Arthur Andersen & Co., independent public accountants,
as indicated in their reports dated February 25, 1994, with respect thereto,
and are incorporated herein by reference in reliance upon the authority of
said firm as experts in accounting and auditing in giving said reports.
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and
distribution of the securities being registered, other than underwriting
compensation, are:
Filing fee for Registration Statement . . . . . . . . . . . . $25,862*
Public Utility Holding Company Act filing fee . . . . . . . . 2,000*
Printing of Registration Statement, Prospectus and
Stock Certificates . . . . . . . . . . . . . . . . . . . . 15,000
Fees of rating agencies . . . . . . . . . . . . . . . . . . . 33,750
Fees of accountants . . . . . . . . . . . . . . . . . . . . 10,000
Reimbursement of underwriters' expenses and
counsel fees in connection with qualification or
registration of the New Preferred Stock under state
securities or "blue sky" laws . . . . . . . . . . . . . . 5,000
Expenses of Central and South West Services, Inc.
(includes Transfer Agent and Registrar fees) . . . . . . . . 15,000
Counsel Fees:
Milbank, Tweed, Hadley & McCloy
New York, New York . . . . . . . . . . . . . . . . . . . 65,000
Vinson & Elkins L.L.P.
Dallas, Texas. . . . . . . . . . . . . . . . . . . . . 10,000
Miscellaneous and incidental expenses, including
travel, telephone, copying, postage . . . . . . . . . . . 8,388
--------
Total . . . . . . . . . . . . . . . . . . . . . . .$190,000
========
_______________
* Actual Amount
Item 15. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides that any
director or officer of a Texas corporation may be indemnified against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with or in defending any action, suit or
proceeding in which he was, is or is threatened to be made a party by reason
of his position. With respect to any proceeding arising from actions taken
in his official capacity, as a director or officer, he may be indemnified so
long as it shall be determined that he conducted himself in good faith and
that he reasonably believed that such conduct was in the corporation's best
interest. In cases not concerning conduct in his official capacity as a
director or officer, a director or officer may be indemnified so long as it
shall be determined that he conducted himself in good faith and that he
reasonably believed that his conduct was not opposed to the corporation's
best interest. In the case of any criminal proceeding, a director or
officer may be indemnified if he had no reasonable cause to believe his
<PAGE> 15
conduct was unlawful. If a director or officer is found liable to the
corporation on the basis that personal benefit was improperly received by
him, the indemnification is limited to reasonable expenses actually incurred
in connection with such proceeding. No indemnification may be made if such
officer or director is found liable for willful or intentional misconduct in
the performance of his duty to the corporation. If a director or officer is
wholly successful, on the merits or otherwise, in connection with such a
proceeding, such indemnification is mandatory.
Section 8 of Article IX of the Company's Bylaws requires the
indemnification of officers and directors to the fullest extent permitted by
the Texas Business Corporation Act or any other applicable Act. The Company
also has policies insuring its officers and directors against certain
liabilities for actions taken in such capacities, including liabilities
under the Securities Act.
Article 7.06 of the Texas Miscellaneous Corporation Laws Act provides
that:
The articles of incorporation of a corporation may provide that a
director of the corporation shall not be liable, or shall be liable
only to the extent provided in the articles of incorporation, to the
corporation or its shareholders or members for monetary damages for an
act or omission in the director's capacity as a director, except that
this article does not authorize the elimination or limitation of the
liability of a director to the extent the director is found liable
for:
(i) a breach of the director's duty of loyalty to the
corporation or its shareholders or members;
(ii) an act or omission not in good faith that constitutes a
breach of duty of the director to the corporation or an act
or omission that involves intentional misconduct or a
knowing violation of the law;
(iii) a transaction from which the director received an improper
benefit, whether or not the benefit resulted from an action
taken within the scope of the director's office;
(iv) an act or omission for which the liability of a director is
expressly provided for by an applicable statute.
Article VII of the Articles provides that, to the full extent
permitted by the Texas Miscellaneous Corporation Laws Act, or any other
applicable laws as presently or hereafter in effect, no director of the
Company shall be liable to the Company or its shareholders for monetary
damages for or with respect to any acts or omissions in his capacity as
director of the corporation.
<PAGE> 16
Item 16. Exhibits.
Exhibit No. Description of Exhibits
1 - Form of Underwriting Agreement.
4(a) - Restated Articles of Incorporation of the Company,
as amended (incorporated herein by reference to
Exhibit 3(a) to the Company's Annual Report on Form
10-K for the year ended December 31, 1993).
4(b) - Form of Resolution providing for the establishment
of the terms of a series of the New Preferred Stock.
5 - Opinion of Vinson & Elkins L.L.P. as to the legality
of the New Preferred Stock.
12(a) - Statement re: computation of Ratio of Earnings to
Combined Fixed Charges and Preferred Dividends for
the five years ended December 31, 1993.
23(a) - Consent of Arthur Andersen & Co.
23(b) - Consent of Vinson & Elkins L.L.P. (contained in
Exhibit 5 above).
24 - Power of Attorney (included on the signature page of
this Registration Statement).
26 - Form of Invitation for Competitive Bids.
<PAGE> 17
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;
(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;
(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;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the registration statement is on Form S-3 and the
information required to be included in a post-effective amendment by these
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective 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 the registrant's annual report
pursuant to Section 13(a) or Section 15(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.
(5) To use its best efforts to distribute prior to the opening of bids
to prospective bidders, underwriters and dealers, a reasonable number of
copies of a prospectus which at that time meets the requirements of Section
10(a) of the Securities Act of 1933, and relating to the securities offered
at competitive bidding, as contained in the registration statement, together
with any supplements thereto.
<PAGE> 18
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 foregoing provisions, 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 Act 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 whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE> 19
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 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 Corpus Christi, State of Texas, on March 21, 1994.
CENTRAL POWER AND LIGHT COMPANY
By /s/ DAVID P. SARTIN
David P. Sartin
Controller
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
David P. Sartin and Melanie J. Richardson or either of them, as his or her
attorney-in-fact, with full power of substitution and resubstitution to sign
and file on his or her behalf individually and in each such capacity stated
below any and all amendments and post-effective amendments to this
Registration Statement, as fully as such person could do in person, hereby
verifying and confirming all that said attorney-in-fact, or either of them, or
their, or his or her substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on March 21, 1994.
SIGNATURE TITLE
--------- -----
/s/ ROBERT R. CAREY President and Chief Executive Officer
----------------------------- (principal executive officer); Director
Robert R. Carey
/s/ DAVID P. SARTIN Controller (principal accounting officer)
----------------------------- and Secretary
David P. Sartin
/s/ MELANIE J. RICHARDSON Vice President Administration and
----------------------------- Treasurer (principal financial officer);
Melanie J. Richardson Director
/s/ B. W. TEAGUE Vice President Marketing and
----------------------------- Business Development; Director
B. W. Teague
<PAGE> 20
SIGNATURE TITLE
--------- -----
/s/ J. G. SANDOVAL Vice President Operations/Engineering;
----------------------------- Director
J. G. Sandoval
/s/ GERALD E. VAUGHN Vice President Nuclear Affairs; Director
-----------------------------
Gerald E. Vaughn
/s/ E. R. BROOKS Director
-----------------------------
E. R. Brooks
/s/ HARRY D. MATTISON Director
-----------------------------
Harry D. Mattison
Director
-----------------------------
Ruben M. Garcia
Director
-----------------------------
Robert A. McAllen
Director
-----------------------------
Pete Morales, Jr.
Director
-----------------------------
S. Loyd Neal, Jr.
Director
-----------------------------
Jim L. Peterson
Director
-----------------------------
H. Lee Richards
<PAGE> 1
INDEX TO EXHIBITS
EXHIBIT TRANSMISSION
NUMBER EXHIBIT METHOD
- ------- ------- ------------
1 Form of Underwriting Agreement. Electronic
4(a) Restated Articles of Incorporation of the ---
Company, as amended (incorporated herein by
reference to Exhibit 3(a) to the Company's
Annual Report on Form 10-K for the year
ended December 31, 1993.
4(b) Form of Resolution providing for the Electronic
establishment of the terms of a series of
the New Preferred Stock.
5 Opinion of Vinson & Elkins L.L.P. as to the Electronic
legality of the New Preferred Stock.
12(a) Statement re: computation of Ratio of Earnings Electronic
to Combined Fixed Charges and Preferred
Dividends for the five years ended December 31,
1993.
23(a) Consent of Arthur Andersen & Co. Electronic
23(b) Consent of Vinson & Elkins L.L.P. (contained ---
in Exhibit 5 above).
24 Power of Attorney (included on the signature ---
page of this Registration Statement).
26 Form of Invitation for Competitive Bids. Electronic
<PAGE> 1
EXHIBIT 1
<PAGE> 2
CENTRAL POWER AND LIGHT COMPANY
PREFERRED STOCK
UNDERWRITING AGREEMENT
___________ __ , 19__
Central Power and Light Company
539 North Carancahua Street
Corpus Christi, Texas 78401-2802
Dear Sirs:
We (the "Managers") understand that Central Power and Light Company, a
Texas corporation (the "Company"), proposes to issue and sell an aggregate
of _______ shares of its Preferred Stock, $100 par value per share,
designated ____% Preferred Stock (the "Offered Securities"). Subject to the
terms and conditions set forth herein or incorporated by reference herein,
the Company hereby agrees to sell and the underwriter or underwriters named
in Schedule I hereto (such underwriter or underwriters being herein called
the "Underwriters") agree to purchase, severally and not jointly, the
respective aggregate number of such Offered Securities set forth opposite
their names in Schedule I hereto at a purchase price of $____ per share plus
accrued dividends, if any, from ____ to the date of payment and delivery at
a compensation of $______ per share.
The Underwriters will pay for such Offered Securities at the offices of
Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York
10005 at 10:00 a.m., New York Time, on ___________, 19__ or at such other
place and time, not later than __________, 19__, as shall be mutually
agreed. The Offered Securities shall be concurrently delivered to the
Underwriters at the offices of ______________________________.
The Offered Securities shall have the following terms:
Initial Per
Share Offering Price: $_______ per share
--------------------
Underwriting Compensation: $_______ per share, payable by the
------------------------- Company on the Closing Date by
[payment method].
Dividend Rate: %
-------------
Mandatory and Optional
Sinking Fund Provisions: As described in the Prospectus and
----------------------- applicable Prospectus Supplement for
Offered Securities
Optional Redemption Provisions: As described in the Prospectus and
------------------------------ applicable Prospectus Supplement for
the Offered Securities
Dividend Payment Dates: _________, __________, _________ and
---------------------- _________ commencing ________ __, 19__
<PAGE> 3
Address for Notices
to Managers under
Underwriting Agreement:
----------------------
Payment Method:
--------------
All the provisions contained in the document entitled Central Power and
Light Company Underwriting Agreement Standard Provisions (Preferred Stock-
Shelf) dated __________________, 19__, a copy of which you and we have
previously received, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Underwriting Agreement to the same
extent as if such provisions had been set forth in full herein. References
herein and therein to numbered sections of the Underwriting Agreement shall
mean the numbered sections of such Standard Provisions.
Please confirm your agreement by having an authorized officer sign a
copy of this Underwriting Agreement in the space set forth below and
returning the signed copy to us. This Underwriting Agreement may be signed
in any number of counterparts with the same effect as if the signature
thereto and hereto were upon the same instrument. It is understood that our
acceptance of this agreement on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement Among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request.
Very truly yours,
_________________________________
By:______________________________
Title:___________________________
(Acting severally on behalf of
themselves and the several
Underwriters named in Schedule I
hereto)
Accepted:
CENTRAL POWER AND LIGHT COMPANY
By:_______________________________
<PAGE> 4
Schedule I
----------
Number of
Shares of
Underwriters Offered Securities
------------ ------------------
-----------
Total
===========
<PAGE> 5
CENTRAL POWER AND LIGHT COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (PREFERRED STOCK-SHELF)
Dated __________ __, 19__
From time to time Central Power and Light Company, a Texas corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated
by reference in any such underwriting agreement and any such underwriting
agreement, including the provisions incorporated therein by reference, is
herein referred to as the "Underwriting Agreement".
The Company proposes to issue the series of Preferred Stock specified
in the Underwriting Agreement (the "Offered Securities"). The Offered
Securities will have the terms and rights, including the dividend rate and
times of payment of dividends, selling price and redemption terms, as set
forth in the Underwriting Agreement and Prospectus (as hereinafter defined).
The Underwriting Agreement shall be in the form of an executed writing
(which may be in counterparts) and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed
to produce a written record of communications transmitted.
1. Representations and Warranties of the Company.
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File No. 33-_____),
including a prospectus, relating to the Offered Securities, and the offering
thereof from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "Securities Act"), and such registration
statement has become effective. The Company has prepared or will promptly
prepare for filing with, or transmission for filing to, the Commission,
pursuant to Rule 424 under the Securities Act, a Prospectus Supplement (the
"Supplement") for the purpose of supplying information in respect of the
public offering of the Offered Securities, the names of the underwriter or
group of underwriters and other matters. Said registration statement, as
amended at the time it became effective, including the information contained
in the final prospectus filed with the Commission pursuant to Rule 424(b) of
the Securities Act, and the prospectus, as supplemented by the Supplement,
relating to the Offered Securities in final form as filed with the
Commission pursuant to Rule 424 under the Securities Act are hereinafter
called the "Registration Statement" and the "Prospectus", respectively. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "preliminary prospectus" means a preliminary prospectus
supplement, if any, relating to the Offered Securities together with the
Basic Prospectus. Whenever the word "Registration Statement", "registration
statement", "Prospectus", "preliminary prospectus" or "prospectus" is used
herein it shall be deemed to include all documents incorporated therein by
reference pursuant to the requirements of Form S-3 under the Securities Act
(the "Incorporated Documents").
<PAGE> 6
[(b) The Company has filed with the Commission a Form U-1 Application-
Declaration with respect to the issue and sale of the Offered Securities and
has no reason to believe that the Commission will not enter an order under
the Public Utility Holding Company Act of 1935, as amended (the "Holding
Company Act"), permitting such Application-Declaration to become effective
prior to the purchase by the Underwriters of the Offered Securities pursuant
to the Underwriting Agreement. A copy of such order and any supplemental
order entered into by the Commission pursuant to Rule 50 under the Holding
Company Act with respect to such Application-Declaration will be delivered
to the Underwriters on or prior to the Closing Date.] [OR]
[(b) The Commission has entered an order under the Public Utility
Holding Company Act of 1935, as amended (the "Holding Company Act"),
permitting to become effective the Form U-1 Application-Declaration filed by
the Company with respect to the issue and sale of the Offered Securities. A
copy of such order heretofore entered by the Commission has been or will be
delivered to the Underwriters.]
(c) Except as otherwise contemplated herein, no approval,
authorization, consent, certificate or order of any State commission or
regulatory authority is necessary with respect to the issuance or the sale
of the Offered Securities by the Company.
(d) The Basic Prospectus filed as a part of the registration statement
relating to the Offered Securities as originally filed, or as a part of any
amendment thereto, any preliminary prospectus at the time of its issuance,
and the Registration Statement and the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus as of their
effective or issue dates, and as of the Closing Date (as hereinafter
defined), complied or will comply, in each case in all material respects,
with the provisions of the Securities Act and the rules and regulations of
the Commission thereunder, and neither the Registration Statement nor any
amendment thereto contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
and the Basic Prospectus, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto does not include and will not include an
untrue statement of a material fact and does not omit and will not omit to
state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made
not misleading; provided that the foregoing representations and warranties
in this subsection (d) shall not apply to omissions from the Registration
Statement or Prospectus resulting from the failure of any of the
Underwriters to furnish the Company with the information pertaining to such
Underwriters and the underwriting of the Offered Securities required to
complete the Registration Statement or the Prospectus, or to statements in
or omissions from the Prospectus made in reliance upon and in conformity
with information furnished in writing to the Company by any of the
Underwriters for use in connection with the preparation of the Prospectus.
The Incorporated Documents that were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), complied at their respective times
of filing, and any documents deemed to be incorporated in the Registration
Statement and Prospectus at all times during which a prospectus is required
to be delivered under the Securities Act will comply at their respective
times of filing, with the provisions of the Exchange Act and the rules and
regulations of the Commission thereunder.
<PAGE> 7
(e) Except as the Company may have furnished supplemental information
to each prospective Underwriter or to the Managers prior to the receipt of
proposals to purchase the Offered Securities as to matters to be reflected
in the Prospectus, since the respective dates as of which information is
given in the Registration Statement and in the Prospectus, there has been no
(A) material adverse change in the condition, financial or otherwise, or in
the earnings of the Company, or (B) adverse development concerning the
Company's business or assets which would result in a material adverse change
in its prospective financial condition or results of operations, except such
changes as are set forth or contemplated in such Registration Statement
(including the financial statements and notes thereto included or
incorporated by reference in the Registration Statement) or the Prospectus.
(f) At or prior to the acceptance by the Company of a proposal for the
purchase of the Offered Securities, the Company will have taken all
corporate action necessary to be taken by it to authorize the acceptance of
such proposal and, at or before the Closing Date, will have taken all
corporate action necessary to be taken by it to authorize the performance by
it of all obligations on its part to be performed under the Underwriting
Agreement; and the consummation of the transactions contemplated in, and the
fulfillment of the terms of, the Underwriting Agreement will not result in a
breach of any of the terms and provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party at the Closing Date, or the Restated Articles
of Incorporation of the Company, as amended, or any order, rule or
regulation applicable to the Company of any court or of any state or Federal
regulatory body or administrative agency having jurisdiction over the
Company or over its property.
(g) Arthur Andersen & Co. are independent accountants with respect to
the Company as required by the Securities Act and the applicable rules and
regulations thereunder.
2. Purchase, Sale and Delivery of Underwriters' Securities.
The Company is advised by the Managers that the Underwriters propose to
make a public offering of their respective number of shares of the Offered
Securities as soon after the Underwriting Agreement is entered into as in
the Managers' judgment is advisable. The terms of the public offering of
the Offered Securities are or will be set forth in the Prospectus.
Payment for the Offered Securities shall be made by certified or
official bank check or checks payable to the Company or its order in
immediately available Federal funds (unless the Underwriting Agreement shall
otherwise specify) at the time and place set forth in the Underwriting
Agreement upon delivery to the Managers for the respective accounts of the
several Underwriters of the Offered Securities registered in such names and
in such denominations as the Managers shall request in writing not less than
two full business days prior to the date of delivery. The Company agrees to
have the certificates representing the Offered Securities available for
inspection, checking and packaging by the Managers at the location indicated
in the Underwriting Agreement not later than 1:00 P.M. on the business day
next prior to the Closing Date. The time and date of such payment and
delivery with respect to the Offered Securities are herein referred to as
the "Closing Date".
<PAGE> 8
3. Covenants of the Company.
The Company covenants and agrees with each of the Underwriters that:
(a) As soon as practicable after the acceptance of a proposal to
purchase the Offered Securities, the Company will file the Supplement with
the Commission pursuant to Rule 424(b) of the Securities Act. The Company
will not file at any time prior to the Closing Date any other amendment to
the Registration Statement or any supplement to the Prospectus, or any other
amended prospectus or any document that upon the filing thereof would become
an Incorporated Document of which Sidley & Austin ("Underwriters' Counsel")
shall not previously have been advised and furnished with a copy or to which
the Managers shall reasonably object in writing.
(b) The Company will advise the Managers immediately, and confirm such
advice promptly in writing, of the effectiveness of any amendment to the
Registration Statement.
(c) The Company will notify promptly each of the Underwriters in the
event of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or in the event of the
institution or notice of intended institution by the Commission of any
action or proceeding for that purpose. In the event the Commission shall
enter a stop order suspending the effectiveness of the Registration
Statement, whether before or after the Offered Securities have been
delivered to the Managers or the Underwriters and paid for as provided in
the Underwriting Agreement, the Company will make every reasonable effort to
obtain, as promptly as possible, the entry by the Commission of an order
setting aside any such stop order or otherwise reinstating the effectiveness
of the Registration Statement.
(d) The Company will deliver to the Managers, on or before the Closing
Date, one signed copy of the registration statement as originally filed and
of each amendment thereto (in each case including all exhibits thereto,
other than exhibits incorporated by reference), and will also deliver to the
Managers, for distribution to the Underwriters, a sufficient number of
conformed copies of each of the foregoing (but without exhibits) so that one
copy of each may be distributed to each of the Underwriters. The Company
will also send to the Managers or to the Underwriters, without expense to
them, as soon as practicable after the date hereof, and thereafter from time
to time during a period of nine months after such date, as many copies of
any preliminary prospectus and the Prospectus as the Managers may reasonably
request for the purposes contemplated by the Securities Act.
(e) The Company will use its best efforts, when and as requested by
the Managers, to furnish information and otherwise cooperate in qualifying
or registering the Offered Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Managers may
designate, but the Company shall not thereby be obligated to qualify as a
foreign corporation in, or to execute or file any general consent to service
of process under the laws of, any jurisdiction. The Company will pay the
Underwriters' Counsel all reasonable fees (including counsel fees) and
expenses incurred by them in connection with such qualification or
registration of the Offered Securities for offer or sale, not exceeding,
however, $5,000 in the aggregate.
<PAGE> 9
(f) If the Underwriting Agreement shall be terminated pursuant to the
provisions of Section 4 or 6(a), the Company will pay the reasonable fees
and disbursements of Underwriters' Counsel in connection with the
contemplated issue and sale of the Offered Securities, unless such
termination is caused by any default by the Managers or any of the
Underwriters in the performance of their respective obligations hereunder.
Except as provided in this subsection (f), the Underwriters shall pay the
fees of Underwriters' Counsel and reimburse such counsel for their
reasonable expenses paid or incurred in connection with the issue and sale
of the Offered Securities. The Company shall not in any event be liable to
any of the Underwriters for damages on account of loss of anticipated
profits.
(g) The Company will, so long as any of the Offered Securities shall
be outstanding, deliver to the Managers upon their request, and to each
other Underwriter who may so request, copies of all public reports and all
reports and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(h) During a period of nine months after the date of the Prospectus,
if any event relating to or affecting the Company or its subsidiaries, if
any, or of which the Company shall be advised in writing by the Managers
shall occur as a result of which it is necessary, in the opinion of counsel
for the Company, to supplement or amend the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser of Offered Securities from any of the
Underwriters, the Company will forthwith at its expense prepare and furnish
to the Managers or to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus
(in form satisfactory to Underwriters' Counsel) which will supplement or
amend the Prospectus so that, as so supplemented or amended, it will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to such a purchaser, not misleading. In
case any of the Underwriters is required to deliver a prospectus descriptive
of the Offered Securities after the expiration of nine months after the date
of the Prospectus, the Company, upon the request of the Managers, will
furnish to the Managers, at the expense of such Underwriter, a reasonable
quantity of amendments or supplements to the Prospectus complying with
Section 10 of the Securities Act. For the purpose of this subsection (h),
the Company will furnish such information with respect to itself and its
subsidiaries, if any, as the Managers may from time to time reasonably
request, and during said nine-month period, the Company will prepare and
continue to file with the Commission all documents required to be filed
under the Exchange Act.
(i) The Company will make generally available to its security holders,
as soon as practicable, an earnings statement (which need not be audited)
covering a period of at least twelve months beginning not earlier than the
date of the Prospectus, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
<PAGE> 10
4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the Offered
Securities shall be subject to the performance by the Company of its
obligations to be performed under the Underwriting Agreement at or prior to
the Closing Date, to the continued accuracy in all material respects of the
representations and warranties of the Company contained in the Underwriting
Agreement, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
and in accordance with Section 1(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the Securities Act, or proceedings therefor instituted or
threatened by the Commission, on or prior to the Closing Date.
(b) At or prior to the Closing Date the Underwriters shall have
received from Underwriters' Counsel an opinion (subject to the reservation
that they have relied upon the opinion of Vinson & Elkins L.L.P., Dallas,
Texas, counsel for the Company, as to all matters governed by Texas law), to
the effect that:
(i) the Company has been duly incorporated and is a validly
existing corporation under the laws of the State of Texas;
(ii) the issue and sale of the Offered Securities by the Company
in accordance with the terms of the Underwriting Agreement have been
duly authorized by the Company. The Offered Securities, when
certificates therefor have been duly executed, countersigned and
registered and delivered to and paid for by the Managers or the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable shares
of Preferred Stock of the Company;
(iii) the Offered Securities conform as to legal matters, in all
material respects, with the statements concerning them made in the
Prospectus under the caption "Description of the New Preferred Stock"
and in the Prospectus Supplement under the caption "Supplemental
Description of the New Preferred Stock," and such statements accurately
set forth, in all material respects, the matters respecting the Offered
Securities and the resolutions establishing such series of Preferred
Stock which are required to be set forth in the Prospectus, as
supplemented by the Prospectus Supplement, by the Securities Act and
the rules and regulations thereunder (other than the accounting
provisions thereof, with respect to the requirements of which such
counsel need express no opinion or belief);
(iv) the order of the Commission referred to in subsection (b) of
Section 1 of the Underwriting Agreement has been duly entered and, to
the knowledge of said counsel, is in full force and effect. Except for
the order of the Commission entered into with respect to the
Registration Statement as contemplated by paragraph (v) below, no
further approval, authorization, consent, certificate or order of any
Federal commission or regulatory authority is necessary with respect to
the issue and sale of the Offered Securities by the Company as
contemplated in the Underwriting Agreement;
<PAGE> 11
(v) the Registration Statement has become effective under the
Securities Act, and, to the knowledge of said counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for such purpose have been instituted or are
pending or threatened under the Securities Act;
(vi) the Registration Statement, the Prospectus and the
Prospectus Supplement, in each case excluding the Incorporated
Documents (other than financial statements, financial data, statistical
data and supporting schedules included or incorporated by reference
therein, with respect to which such counsel need express no opinion or
belief), as of their respective effective or issue dates, complied as
to form, in all material respects, with the requirements of the
Securities Act and the rules and regulations of the Commission
thereunder; and
(vii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
Such counsel shall also state that while, except as otherwise required
or stated in said opinion, said counsel have not independently checked the
accuracy or completeness of, or otherwise verified, and accordingly are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Prospectus Supplement, and relying as to
materiality, to a large extent, upon the judgment of officers and
representatives of the Company, nothing has come to the attention of said
counsel which would lead said counsel to believe that the Registration
Statement relating to the Offered Securities or any amendment thereto (other
than financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein, as to which said
counsel need express no opinion or belief), at the time it became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that (with the foregoing exception) the
Prospectus, as supplemented by the Prospectus Supplement, as of the date of
such opinion includes any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) At or prior to the Closing Date, the Underwriters shall have
received from Milbank, Tweed, Hadley & McCloy, counsel for the Company, an
opinion (subject to the same reservation as that expressed in subsection (b)
of this Section 4), in form and substance satisfactory to Underwriters'
Counsel, to the same effect, in general, with respect to all matters
enumerated in subsection (b) of this Section 4.
(d) At or prior to the Closing Date, the Underwriters shall have
received from Vinson & Elkins L.L.P., Dallas, Texas, special Texas counsel
for the Company, an opinion, in form and substance satisfactory to
Underwriters' Counsel, to the effect that:
(i) the Company is a corporation, duly incorporated and validly
existing under the laws of the State of Texas;
<PAGE> 12
(ii) the Company is a public utility (as defined in the Public
Utility Regulatory Act ("PURA") of the State of Texas), duly authorized
by its Restated Articles of Incorporation, as amended and filed with
the Secretary of State of the State of Texas, through the date of such
opinion, to conduct the business of generating and supplying gas,
electric light and motor power to the public; the Company is authorized
under the laws of the State of Texas to operate as an electric utility
(as defined in PURA) in the areas of the State of Texas in which it
currently does so, except where the failure to be so authorized could
not reasonably be expected to result in a material adverse change in
the financial condition, results of operations or business of the
Company (a "Material Adverse Effect");
(iii) the Company has valid and subsisting municipal franchises,
licenses or permits authorizing it to operate as an electric utility in
all of the municipalities listed on an exhibit to such opinion (which
municipalities the Company has certified to such counsel are all the
municipalities served by it in which the Company derives a material
amount of electric operating revenues) wherein such a franchise,
license or permit is required;
(iv) except as set forth in the Prospectus, there is no
litigation or other legal proceedings pending to which the Company is a
party or to which property of the Company is subject that could
reasonably be expected to result in a Material Adverse Effect and, to
the best of such counsel's knowledge, no such litigation or proceedings
have been threatened;
(v) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the issuance and sale of the Offered Securities by the
Company in accordance with the terms of the Underwriting Agreement have
been duly authorized by the Company; the Offered Securities, when the
certificates therefor have been duly executed, countersigned and
registered and delivered to the Managers or to the Underwriters in the
manner set forth in the Underwriting Agreement, against payment to the
Company of the agreed consideration therefor, will be validly issued,
fully paid and nonassessable shares of Preferred Stock of the Company;
(vii) no approval, authorization, consent, certificate or order
of any commission or regulatory authority of the State of Texas (other
than in connection with the "blue sky" or securities laws or
regulations of the State of Texas, about which such counsel need
express no opinion) is necessary with respect to the issuance and sale
of the Offered Securities by the Company to the Underwriters as
contemplated by the Underwriting Agreement;
Such counsel shall also state that, in their role as special Texas
counsel to the Company in connection with the offering of the Offered
Securities, such counsel reviewed the Registration Statement and the
Prospectus (however, such counsel did not participate in their preparation)
and although such counsel has not independently verified, and does not
warrant or pass upon the accuracy or completeness of the statements
contained in the Registration Statement and the Prospectus (relying, with
<PAGE> 13
respect to materiality, to the extent such counsel deems such reliance
proper, upon the opinions of officers and other representatives of the
Company) no facts have come to such counsel's attention as a result of the
foregoing review which lead such counsel to believe that either (i) the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or (ii) the Prospectus as of its date or as of the Closing Date
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, such counsel need express no belief as to (a)
the financial statements and schedules and other financial and statistical
data included in the Registration Statement or the Prospectus or any
amendment or supplement thereto or (b) regulatory and other legal matters
not governed by the laws of the State of Texas.
(e) At or prior to the Closing Date, the Underwriters shall have
received from Arthur Andersen & Co. a letter confirming that they are
independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder and that the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them and stating in effect (1)
that in their opinion the financial statements and schedules of the Company
incorporated by reference in the Registration Statement and Prospectus and
which are stated therein to have been certified or audited by them, comply
as to form, in all material respects, with the applicable accounting
requirements of the Securities Act and the published rules and regulations
thereunder; (2) that nothing has come to their attention which causes them
to believe (A) that any unaudited dollar amounts or ratios which may appear
in the Registration Statement and the Prospectus under the caption "The
Company" were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited financial statements
incorporated by reference in the Registration Statement and the Prospectus;
(B) that any unaudited condensed financial statements of the Company
included in any of the Company's Form 10-Q Quarterly Reports, which may be
incorporated by reference in the Registration Statement and the Prospectus,
do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the applicable published
rules and regulations thereunder, or that material modifications should be
made to such unaudited financial statements for them to be in conformity
with generally accepted accounting principles; or (C) that, except in all
instances as set forth or contemplated in the Registration Statement or the
Prospectus, (i) at the date of the latest available unaudited financial
statements of the Company read by them and at a subsequent date, not more
than five business days before the Closing Date, there has been any change
in the capital stock or long-term debt of the Company, as compared with
amounts shown in the latest balance sheet of the Company included or
incorporated by reference in the Registration Statement and the Prospectus,
except for normally scheduled reductions in the Company's long-term debt,
(ii) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the date of the
latest available interim financial statements read by them and to the
aforementioned date not more than five business days prior to the Closing
Date there was any decrease, as compared with the corresponding period in
<PAGE> 14
the preceding 12 month period, in the Company's operating revenues,
operating income or net income, or (iii) there was any decrease in the ratio
of earnings to combined fixed charges and preferred stock dividends for the
12 months ended the date of such latest available interim financial
statements as compared to such ratio for the twelve months ended the date of
the latest financial statements included or incorporated by reference in the
Prospectus, except as set forth in such letter, in which latter case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless such explanation is not deemed necessary by the
Managers; and (3) that they have compared certain dollar amounts designated
by the Company disclosed in the Registration Statement and Prospectus with
such dollar amounts contained in the general accounting records of the
Company or derived directly from such records by analysis or computation,
and have found such dollar amounts to be in agreement therewith, except as
otherwise specified in such letter, in which latter case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless such explanation is not deemed necessary by the Managers.
The form of letter shall reflect the inclusion of any subsequently
dated financial information, the incorporation by reference of any
subsequently filed Annual Report on Form 10-K or Quarterly Report on Form
10-Q and/or the inclusion in the Prospectus of any statistical or financial
information.
Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter required by this subsection (e)
which is, in the judgment of the Managers, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Offered Securities as contemplated by the Registration
Statement and the Prospectus.
(f) At the Closing Date the Managers shall have received a
certificate, dated as of the Closing Date, signed by the President or a Vice
President and the Treasurer or the Secretary of the Company, to the effect
that (i) to the best of the knowledge of the signers, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been instituted or
threatened by the Commission, (ii) the order of the Commission referred to
in subsection (b) of Section 1 of the Underwriting Agreement is, to the best
of the knowledge of the signers, in full force and effect, and (iii) since
the respective dates as of which information is given in the Registration
Statement or Prospectus, there has been no (A) material adverse change in
the condition, financial or otherwise, or in the earnings of the Company or
(B) adverse development concerning the Company's business or assets which
would result in a material adverse change in its prospective financial
condition or results of operations, except such changes as are set forth or
contemplated in the Registration Statement or the Prospectus (including
financial statements and notes thereto contained in the Incorporated
Documents).
<PAGE> 15
(g) All proceedings to be taken in connection with the issuance and
sale of the Offered Securities by the Company as contemplated in the
Underwriting Agreement shall be satisfactory in form and substance to
Underwriters' Counsel.
In case any of the conditions specified in this Section 4 shall not
have been fulfilled, the Underwriting Agreement may be terminated by the
Managers with the consent of Underwriters who have agreed to purchase in the
aggregate more than fifty percent of the total numbers of shares of the
Offered Securities upon delivering written notice thereof to the Company.
Any such termination shall be without liability of any party to any other
party except as otherwise provided in subsection (f) of Section 3 of the
Underwriting Agreement.
5. Indemnification
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any of the Underwriters
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act, the Exchange Act or the
common law or otherwise, and to reimburse each such Underwriter or such
controlling person for any reasonable legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by it or
them in connection with defending against any such losses, claims, damages
or liabilities, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in (1) the Registration
Statement, the Basic Prospectus, any preliminary prospectus, or the
Prospectus or any amendment to the Registration Statement or amendment or
supplement to the Prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (2) the Prospectus or the
Prospectus as amended or supplemented, if such losses, claims, damages or
liabilities arise out of or are based upon the use of the Prospectus or the
Prospectus as amended or supplemented after the Company shall have amended
or supplemented the Prospectus, or any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement contained in
this subsection (a) shall not apply to any such losses, claims, damages or
liabilities arising out of or based upon (i) any such untrue statement or
alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by any of the Underwriters
for use in the Registration Statement or the Prospectus or any amendment or
supplement to either thereof or (ii) the failure of any Underwriter to
deliver (either directly or through the Managers) a copy of the Prospectus
(excluding the Incorporated Documents), or of the Prospectus as amended or
supplemented after it shall have been amended or supplemented by the Company
(excluding the Incorporated Documents), to any person to whom a copy of any
preliminary prospectus shall have been delivered by or on behalf of such
Underwriter to whom any Offered Securities shall have been sold by such
Underwriter, as such delivery may be required by the Securities Act and the
rules and regulations of the Commission thereunder.
<PAGE> 16
(b) Each of the Underwriters agrees to indemnify and hold harmless the
Company, each of its officers who signs the Registration Statement, each of
its directors, each person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each
other Underwriter and each person, if any, who so controls any such other
Underwriter, from and against any and all losses, claims, damages or
liabilities, joint or several, to which any one or more of them may become
subject under the Securities Act, the Exchange Act or the common law or
otherwise, and to reimburse each of them for any reasonable legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with defending against any such losses,
claims, damages or liabilities of the character above specified arising out
of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or
any amendment to the Registration Statement or amendment or supplement to
the Prospectus or upon any omission or alleged omission to state in any
thereof a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or omission was made
in reliance upon and in conformity with information furnished in writing to
the Company by such Underwriter for use in the Registration Statement or the
Prospectus or any amendment or supplement to either thereof, or (ii) the
failure of such Underwriter to deliver (either directly or through the
Managers) a copy of the Prospectus (excluding the Incorporated Documents),
or of the Prospectus as amended or supplemented after it shall have been
amended or supplemented by the Company (excluding the Incorporated
Documents), to any person to whom a copy of any preliminary prospectus shall
have been delivered by or on behalf of such Underwriter and to whom any
Offered Securities shall have been sold by such Underwriter, as such
delivery may be required by the Securities Act and the rules and regulations
of the Commission thereunder.
(c) Promptly after receipt by a party indemnified under this Section 5
(an "indemnified party") of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
a party granting an indemnity under this Section 5 (the "indemnifying
party"), notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 5. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof (thereby conceding
that the action in question is subject to indemnification by the
indemnifying party hereunder), with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
and conduct such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of its
<PAGE> 17
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Managers in the
case of subsection (a), representing the indemnified parties under
subsection (a) who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 5 shall be
unenforceable under applicable law by an indemnified party, the Company
agrees to contribute to such indemnified party with respect to any and all
losses, claims, damages and liabilities for which such indemnification
provided for in this Section 5 shall be unenforceable, in such proportion as
shall be appropriate to reflect the relative fault of the Company on the one
hand and the indemnified party on the other in connection with the
statements or omissions which have resulted in such losses, claims, damages
and liabilities, as well as any other relevant equitable considerations;
provided, however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from the Company if the Company is
not guilty of such fraudulent misrepresentation. Relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and each of the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this subparagraph were to be determined solely by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to above.
(e) The indemnity and contribution agreements contained in this
Section 5 and the representations and warranties of the Company in the
Underwriting Agreement shall remain operative and in full force regardless
of (i) any termination of the Underwriting Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or
any person controlling the Company and (iii) delivery of and payment for any
of the Offered Securities.
<PAGE> 18
6. Termination.
(a) If the Offered Securities are being purchased for the purpose of
resale, the Underwriting Agreement may be terminated, at any time prior to
the Closing Date, by the Managers with the consent of Underwriters who have
agreed to purchase in the aggregate more than fifty percent of the total
number of shares of the Offered Securities, if (a) there shall have occurred
any general suspension or material limitation on trading in securities on
the New York Stock Exchange or by the Commission or by any federal or state
agency or by the decision of any court any limitation on prices for such
trading or any restrictions on the distribution of securities, (b) trading
in any securities of the Company shall have been suspended by the Commission
or a national securities exchange, (c) a general banking moratorium on
commercial banking activities in New York shall have been declared either by
federal or New York State authorities, (d) the rating assigned by any
nationally recognized securities rating agency to any securities of the
Company as of the date of the Underwriting Agreement shall have been lowered
since that date or (e) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of which
on the financial markets of the United States is such as to make it, in the
judgment of the Managers, impracticable to market the Offered Securities.
(b) Any termination of the Underwriting Agreement pursuant to this
Section 6 shall be without liability of any party to any other party except
as otherwise provided in subsection (f) of Section 3.
7. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay for any
of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under the
Underwriting Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Offered Securities set forth opposite their names in Schedule I to
the Underwriting Agreement bears to the aggregate number of Offered
Securities set opposite the names of all the remaining Underwriters) the
Offered Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the
aggregate number of Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase (less such aggregate number of
Offered Securities as are purchased by substituted underwriters selected by
the Managers with the approval of the Company or selected by the Company
with the approval of the Managers) shall exceed 10% of the aggregate number
of Offered Securities set forth in such Schedule I, the remaining
Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Offered Securities, and if such
nondefaulting Underwriters do not purchase all the Offered Securities, the
Underwriting Agreement will terminate without liability to any nondefaulting
Underwriter or the Company (except as otherwise provided in subsection (f)
of Section 3). In the event of a default by an Underwriter as set forth in
this Section 7, the Closing Date shall be postponed for such period, not
exceeding seven calendar days, as the Company and the Managers shall
<PAGE> 19
determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in the Underwriting Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default thereunder.
8. Notice.
All communications under the Underwriting Agreement will be effective
only on receipt, and, if sent to the Managers, will be mailed, delivered or
telegraphed and confirmed to them, at the address, or telephoned to them at
the number, specified in the Underwriting Agreement and to Sidley & Austin,
One First National Plaza, Chicago, Illinois 60603, attention: Wilbur C.
Delp, Jr.; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 539 North Carancahua Street, Corpus
Christi, Texas 78401-2802, attention of the Treasurer or telephoned to it at
(512) 881-5300 attention of the Treasurer, in each case with written
confirmation of such communication sent to the Company in care of Central
and South West Corporation, 1616 Woodall Rodgers Freeway, P.O. Box 660164,
Dallas, Texas 75202, attention of the Treasurer and to Milbank, Tweed,
Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York 10005,
attention George J. Forsyth, Esq..
9. Successors.
The Underwriting Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 5 of the
Underwriting Agreement, and no other person will have any right or
obligation hereunder and no other person (including a purchaser, as a
purchaser, from any Underwriter of any of the Offered Securities) shall
acquire or have any rights under or by virtue of the Underwriting Agreement.
10. Governing Law.
The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 1
EXHIBIT 4(b)
<PAGE> 2
STATEMENT OF RESOLUTION ESTABLISHING SERIES OF SHARES
of
% PREFERRED STOCK
of
CENTRAL POWER AND LIGHT COMPANY
(Pursuant to Article 2.13 of the
Texas Business Corporation Act)
__________________
STATEMENT OF RESOLUTION
ESTABLISHING SERIES OF SHARES
TO THE SECRETARY OF STATE OF THE STATE OF TEXAS:
Pursuant to the provisions of Article 2.13 of the Texas Business
Corporation Act, the undersigned corporation submits the following
statement for the purpose of establishing and designating a series of
shares and fixing and determining the preferences, limitations and
relative rights thereof:
A. The name of the corporation is CENTRAL POWER AND LIGHT COMPANY
(the "Corporation").
B. The following resolution, establishing and designating a series
of shares and fixing and determining the preferences, limitations and
relative rights thereof, was duly adopted by all necessary action on
behalf of the Corporation by a committee of the board of directors of the
Corporation on _____________, 1994, which committee was established and
empowered by resolutions of the board of directors of the Corporation on
October 12, 1993 and April ___, 1994, acting pursuant to authority granted
by such resolutions as permitted by Article 2.36 of the Texas Business
Corporation Act:
RESOLVED, that pursuant to Article VI of the Restated Articles
of Incorporation, as amended (the "Articles"), of Central
Power and Light Company (the "Corporation"), a series of
Preferred Stock of the par value of $100 per share of the
Corporation ("Preferred Stock") is hereby created and
established out of the authorized and unissued shares of
Preferred Stock, and that the designations, preferences,
limitations and relative rights for all shares of such series
shall be as follows:
1. Designation and Amount. The designation of the
series of Preferred Stock created by this resolution shall be
" % Preferred Stock", and the number of shares
constituting such series shall be . Such
series is referred to herein as the " % Preferred Stock".
<PAGE> 3
2. Dividends. (1) Holders of % Preferred Stock
shall be entitled to receive, when, as and if declared by the
board of directors of the Corporation (the "Board of
Directors"), out of [the surplus or net profits] of the
Corporation at the time legally available therefor, cash
dividends per share of % Preferred Stock at the rate of
% per annum of the par value thereof, and no more.
(b) Dividends on shares of % Preferred Stock shall
be cumulative from and including the date of original issue of
shares of % Preferred Stock (the "Date of Original Issue")
and shall be payable (when, as and if declared by the Board of
Directors) quarterly, in arrears, on the first day of each
__________, ___________, _____________ and _____________
commencing on _______________, 199__, except that if any such
date is not a Business Day then such dividend shall be payable
on the next succeeding Business Day (as used herein, the term
"Business Day" shall mean any day except Saturday, Sunday or a
day on which banking institutions are authorized or required
by law to close in the City of New York, New York, or in the
City of Dallas, Texas). Dividends on account of arrears for
any past dividend periods may be declared and paid on any
Business Day, without reference to any regular dividend
payment date. Any date on which dividends (regular or on
account of arrears) are paid on the % Preferred Stock is
referred to herein as a "Dividend Payment Date".
(c) Dividends shall be paid to the holders of record as
they appear on the stock transfer books of the Corporation at
the close of business on record dates [fixed by the Board of
Directors] (each, a "Record Date"), each of which Record Dates
shall not be more than sixty nor less than ten days preceding
the corresponding Dividend Payment Date. Holders at the close
of business on a Record Date of shares of % Preferred
Stock that are called for redemption on a redemption date
during the period between such Record Date and the
corresponding Dividend Payment Date shall not, in their
capacity as such, be entitled to receive the dividend payment
on such Dividend Payment Date.
(d) [The dividend payable as set forth in paragraph (a)
above on each share of the % Preferred Stock for each full
quarterly dividend period in which such share was outstanding
shall be $ . For the initial dividend period and
any subsequent dividend period during which such share was not
outstanding for a full quarterly dividend period, the dividend
payable on each such share of % Preferred Stock shall be
computed on the basis of a 360-day year consisting of twelve
30-day months. The aggregate dividend paid to a holder of
% Preferred Stock on a given Dividend Payment Date shall be
the product of the aggregate number of shares of %
Preferred Stock held by such holder at the close of business
on the corresponding Record Date and the per share dividend
payment due in respect of such Dividend Payment Date, with
<PAGE> 4
such product being rounded to the nearest whole cent (with one-half
cent rounded upward). Unless otherwise provided herein, dividends
on each share of % Preferred Stock will be cumulative from and
including the Date of Original Issue to and excluding the earliest
to occur of (i) the date of redemption of such share, and (ii) the
date of final distribution of assets upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary (any such event referred to in this clause (ii), a
"Liquidation"). Holders of shares of % Preferred Stock shall
not be entitled to any dividend, whether payable in cash, property
or stock, in excess of full cumulative dividends, or to any
interest, or sum of money in lieu of interest, in respect of any
dividend payment or payments on shares of % Preferred Stock
that may be in arrears. Any dividend payment made on shares of
% Preferred Stock shall first be credited against the earliest
accumulated but unpaid dividend with respect to shares of %
Preferred Stock.]
(e) No dividends or other distributions (other than a
dividend or distribution of Common Stock of the par value of
$25 per share ("Common Stock") of the Corporation or any other
stock of the Corporation ranking junior to the
% Preferred Stock as to the dividends or upon Liquidation
("Junior Stock")) shall be declared, made or paid or set apart
for payment or distribution upon the Common Stock or upon any
other stock of the Corporation ranking junior to or on a
parity with the % Preferred Stock as to dividends, nor
shall any Common Stock, any Junior Stock or any other stock of
the Corporation ranking on a parity with the % Preferred
Stock as to dividends or upon Liquidation ("Parity Stock") be
redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for
the sinking fund for the redemption of any shares of such
Common Stock, Junior Stock or Parity Stock), unless full
cumulative dividends on all outstanding shares of %
Preferred Stock have been, or contemporaneously are, declared
and paid, or declared and a sum sufficient for the payment
thereof is set apart for the payment thereof, for all dividend
periods ending on or prior to the date of such declaration,
payment, distribution, setting apart, making monies available,
redemption, purchase or acquisition.
3. Optional Redemption. (a) [Except as provided in
Section 4 below,] [s]hares of % Preferred Stock may not
be redeemed prior to . On or after
, shares of % Preferred Stock shall be redeemable by
the Corporation, at its option by resolution of the Board of
Directors, in whole at any time or in part from time to time,
out of funds legally available therefor, upon the notice and
in the manner and with the effect set forth below, at the
following per share cash redemption prices, if redeemed during
the 12-month period beginning ________________ of the year
indicated:
<PAGE> 5
Redemption Price Redemption Price
Year Per Share Year Per Share
20__ 20__
20__ 20__
20__ 20__
20__ 20__
20__ 20__ and thereafter$100.00
plus, in each case, an amount in cash equal to any Accrued
Dividends to but excluding the date fixed for redemption (such sum
being hereinafter referred to as the "Redemption Price"). The
term "Accrued Dividends", as used herein shall mean, in respect of
any share of % Preferred Stock as of any given date, the amount
of dividends payable on such share, computed, at the annual
dividend rate stated herein, from the date on which dividends
thereon became cumulative to and including such given date, less
the aggregate amount of all dividends which have been paid, or
which have been declared and set apart for payment, on such share.
The aggregate Redemption Price paid to a holder of shares of %
Preferred Stock being redeemed shall be the product of the
aggregate number of shares of % Preferred Stock being
redeemed from such holder and the applicable per share Redemption
Price, with such product being rounded to the nearest whole cent
(with one-half cent rounded upward).
(b) In every case of the redemption of less than all the
outstanding shares of % Preferred Stock, the shares to be
redeemed shall be chosen by proration (so far as may be without
the issuance of fractional shares), by lot or in such other
equitable manner as may be prescribed by resolution of the Board
of Directors.
(c) Not more than sixty nor less than [thirty] days prior
to the redemption date fixed by the Board of Directors, notice
(the "Redemption Notice") by first class mail, postage prepaid,
shall be given to the holders of record of shares of %
Preferred Stock to be redeemed, addressed to such holders at their
last addresses as shown on the stock transfer books of the
Corporation. Each such Redemption Notice shall specify (i) the
date fixed for redemption, (ii) the number of shares of %
Preferred Stock to be redeemed, and, if less than all the shares
held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder, (iii) the Redemption Price, (iv)
the place or places of payment, (v) that payment will be made upon
presentation and surrender of the certificates representing shares
of % Preferred Stock, and (vi) that, on and after the date
fixed for redemption, dividends will cease to accumulate on such
shares (unless the Corporation defaults in the payment of the
Redemption Price).
<PAGE> 6
(d) Any Redemption Notice that is mailed as herein provided
shall conclusively be presumed to have been duly given, and shall
deemed to be delivered when deposited in the United States mail,
whether or not the holder of shares of % Preferred Stock
receives such Redemption Notice; and failure to give such
Redemption Notice by mail, or any defect in such Redemption Notice
to the holders of any shares designated for redemption shall not
affect the validity of the proceedings for the redemption of any
other shares of % Preferred Stock. On or after the date
fixed for redemption as stated in such Redemption Notice, each
holder of the shares called for redemption shall surrender the
certificate evidencing such shares to the Corporation at a place
designated in such Redemption Notice and shall thereupon be
entitled to receive payment of the aggregate Redemption Price for
such shares. A Redemption Notice having been given as aforesaid,
if, on the date fixed for redemption, funds necessary for the
redemption shall be legally available therefor and shall have been
irrevocably deposited or set aside, then, notwithstanding that the
certificates evidencing any shares of % Preferred Stock so
called for redemption shall not have been surrendered, (i)
dividends with respect to the shares so called for redemption
shall cease to accumulate on the date fixed for redemption, (ii)
such shares shall no longer be deemed outstanding and may be
cancelled and returned to authorized but unissued shares of
Preferred Stock, (iii) the holders thereof shall cease to be
shareholders of the Corporation to the extent of their interest in
such shares, and (iv) all rights whatsoever with respect to the
shares so called for redemption (except the right of the holders
to receive the Redemption Price for each share, without interest
or any sum of money in lieu of interest thereon, upon surrender of
their certificates therefor at a place designated in such
Redemption Notice) shall terminate. If funds legally available
for such purpose are not sufficient for redemption all of the
shares of % Preferred Stock that were to be redeemed, then
such funds shall be applied pro rata to the redemption of all of
the shares of % Preferred Stock to be redeemed. If less than
all of the shares of % Preferred Stock evidenced by any
certificate are so redeemed, a new certificate shall be issued
evidencing the unredeemed portion of such shares, such unredeemed
shares shall remain outstanding and the rights of holders of such
unredeemed shares of % Preferred Stock thereafter shall
continue to be only those of a holder of shares of %
Preferred Stock.
(e) The corporation may deposit, with a bank or trust
company, which shall be named in the Redemption Notice, shall be
located in the City of New York, New York, or in the City of
Chicago, Illinois, and shall have capital, surplus and undivided
profits aggregating at least $1,000,000, the aggregate Redemption
Price of the shares to be redeemed, in trust for the payment on or
before the redemption date to or upon the order of the holders of
such shares, upon surrender of the certificates for such shares.
Such deposit in trust may, at the option of the Corporation, be
upon terms whereby in case the holder of any shares of %
<PAGE> 7
Preferred Stock called for redemption shall not, within ten years
after the date fixed for redemption of such shares, claim the amount
on deposit with any bank or trust company for the payment of the
Redemption Price of such shares, such bank or trust company shall on
demand, when requested by resolution of the Board of Directors of the
Corporation or its successor, pay to or upon the written order of the
Corporation or its successor the amount so deposited, and thereupon
such bank or trust company shall be released from any and all further
liability with respect to the payment of such Redemption Price and the
holder of said shares shall be entitled to look only to the
Corporation or its successor for the payment thereof. Upon the giving
of the Redemption Notice and upon the deposit of the Redemption Price,
as aforesaid, or, if no such deposit is made, upon the redemption date
(unless the Corporation defaults in making payment of the Redemption
Price as set forth in the Redemption Notice), such holders shall cease
to be shareholders with respect to said shares, and from and after the
making of said deposit and the giving of said notice, or, if no such
deposit is made, after the redemption date (the Corporation not having
defaulted in making payment of the Redemption Price as set forth in
the Redemption Notice), said shares shall no longer be deemed to be
outstanding and may be cancelled and returned to authorized but
unissued shares of Preferred Stock, shall no longer be transferable on
the books of the Corporation, and said holders shall have no interest
in or claim against the Corporation or its successor with respect to
said shares, but shall be entitled only to receive said moneys on the
date fixed for redemption, as aforesaid, from said bank or trust
company, or from the Corporation or its successor, without interest
thereon, upon surrender of the certificates for said shares as
aforesaid.]
(f) [Except as provided in Section 4 below,] [h]olders of
% Preferred Stock shall have no right to require redemption of
% Preferred Stock.
4. Sinking Fund. [The shares of % Preferred Stock shall
not be subject to the operation of any mandatory redemption,
purchase, retirement or sinking fund.] (a) As and for a sinking
fund for the shares of % Preferred Stock, the Corporation
shall, subject to the restrictions contained in this resolution
and upon the notice and in the manner provided in Section 3 above,
redeem (a) on ____________ in each of the years ____, ____, ____
and ____, shares of % Preferred Stock (being % of
the number of shares of % Preferred Stock originally issued)
and (ii) on in the year all shares of said
series then outstanding, in each case at the sinking fund
redemption price of $100 per share, plus Accrued Dividends to but
excluding the date fixed for redemption (such required redemptions
being hereinafter referred to as the "Sinking Fund Requirement").
The Sinking Fund Requirement shall be cumulative so that if the
Corporation shall fail to satisfy in full the Sinking Fund
Requirement on any date of redemption specified in the preceding
sentence, the obligation of the Corporation to redeem a number of
shares of said series equal to the amount of the deficiency shall
<PAGE> 8
continue until such deficiency shall be eliminated. Any such
deficiency shall be eliminated as soon as practicable. If the
Corporation is in arrears in any Sinking Fund Requirement and so long
as the Corporation shall remain in arrears in any such requirement,
the Corporation may not purchase, redeem, pay dividends or make
distributions on any shares of Common Stock, Junior Stock or Parity
Stock.
(b) The Corporation may satisfy the whole or any part of
any Sinking Fund Requirement set forth in paragraph (a) above by
cancelling prior to the date of redemption specified in such
paragraph (a) for such Sinking Fund Requirement, shares of %
Preferred Stock purchased, redeemed or otherwise acquired by the
Corporation otherwise than pursuant to paragraph (a) above. For
the purposes of the preceding sentence, shares of % Preferred
Stock cancelled pursuant to the provisions of paragraph (e) of
Section 3 above or any similar statutory provision shall be deemed
to have been acquired by the Corporation.
(c) No shares of % Preferred Stock shall be redeemed to
satisfy the Sinking Fund Requirement unless, at the date such
shares are called for redemption, full dividends on all shares of
the Preferred Stock of the Corporation for all prior periods shall
have been paid or declared and set apart for payment.
(d) Nothing contained here shall be deemed to require the
Corporation to redeem or purchase shares of % Preferred Stock
at a time when it may not legally do so.
5. Reacquired Shares. Any shares of % Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation shall
be cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock but may not be reissued as
shares of % Preferred Stock.
[6. Liquidation Rights. In the event of an involuntary
Liquidation, holders of shares of % Preferred Stock then
outstanding shall be entitled to be paid in full, out of the net
assets of the Corporation available for distribution to its
shareholders, a liquidation preference equal to the par value of
such shares plus Accrued Dividends thereon to but excluding the
date of such payment, and no more, before any payment shall be
made or assets distributed to the holders of Common Stock or any
Junior Stock upon such Liquidation. In the event of a voluntary
Liquidation, the holders of shares of % Preferred Stock then
outstanding shall be entitled to be paid in full, out of the net
assets of the Corporation available for distribution to its
shareholders, a liquidation preference equal to the then effective
Redemption Price of such shares of % Preferred Stock and no
more, before any payment shall be made or any assets distributed
to the holders of Common Stock or any Junior Stock upon such
Liquidation. For the purposes of the preceding sentence, in the
<PAGE> 9
event of a voluntary Liquidation prior to _________, each share of
% Preferred Stock shall be deemed to have a Redemption Price of $
plus Accrued Dividends thereon to but excluding the date of any such
payment. If, upon any Liquidation, the amounts payable with respect
to the liquidation preference of % Preferred Stock and any other
shares of the Corporation's stock ranking on a parity with %
Preferred Stock upon Liquidation are not paid in full, the holders of
% Preferred Stock and of such other shares will share pro rata in
the amounts payable and other property distributable with respect to
such Liquidation so that the per share amounts to which holders of
% Preferred Stock and such other shares are entitled will in all cases
bear to each other the same ratio that the liquidation preferences of
the % Preferred Stock and such other stock bear to each other.
After payment in full of the preferences in respect of the shares of
% Preferred Stock upon Liquidation, the holders of such shares in
their capacity as such shall not be entitled to any further right or
claim to any remaining assets of the Corporation. Neither a
consolidation or merger of the Corporation with or into another
corporation, nor a merger or any other corporation with or into the
Corporation, nor the sale of all or substantially all of the
Corporation's property or business (other than in connection with
winding up of its business) will be considered a Liquidation for the
purposes hereof.]
7. Ranking. Except as otherwise expressly set forth in
this resolution, shares % Preferred Stock shall be subject to
the terms, provisions and restrictions set forth in the Articles
with respect to shares of Preferred Stock, and excepting only as
to the rates, dates and other conditions upon which dividends
shall be payable thereon, the redemption prices and the terms and
conditions of redemption applicable thereto, the amounts payable
in respect thereof in the event of voluntary Liquidation and any
provisions as to sinking fund requirements, shall be of equal rank
with, and shall confer rights equal to those conferred by the
Articles on, all other shares of Preferred Stock.
8. Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision
hereof is held to be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court
of competent jurisdiction should determine that a provision hereof
would be valid or enforceable if a period of time were extended or
shortened or a particular percentage were increased or decreased,
then such court may make such change as shall be necessary to
render the provision in question effective and valid under
applicable law.
<PAGE> 10
IN WITNESS WHEREOF, this Statement of Resolution Establishing Series
of Shares is executed on behalf of the Corporation.
Dated: _____________, 1994.
CENTRAL POWER AND LIGHT COMPANY
By:
Title:
<PAGE> 1
EXHIBIT 5
<PAGE> 2
Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2921
March 21, 1994
Central Power and Light Company
539 North Carancahua Street
Corpus Christi, Texas 78401-2802
Ladies and Gentlemen:
We have acted as special Texas counsel for Central Power and Light
Company, a Texas corporation (the "Company"), in connection with the
proposed issuance and sale by the Company from time to time of up to
750,000 shares of its Preferred Stock of the par value of $100 per share
(the "Preferred Stock"). In connection with such proposed issuance and
sale, the Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") with the Securities and Exchange Commission for
the purpose of registering the Preferred Stock for sale from time to time
pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act").
Before rendering the opinion hereinafter set forth, we examined the
Restated Articles of Incorporation of the Company, as amended through the
date hereof (the "Restated Articles"), the Bylaws of the Company as in
effect on the date hereof (the "Bylaws"), the form of resolution to be
adopted by the Board of Directors of the Company (or a duly authorized
committee thereof) to establish a series of Preferred Stock (as adopted
with respect to each series of Preferred Stock, the "Resolution"), the
form of Statement of Resolution Establishing Series of Shares of Preferred
Stock to be filed with the Secretary of State of the State of Texas for
the purpose of establishing a series of Preferred Stock (as filed with
respect to each series of Preferred Stock, the "Statement of Resolution"),
and the proposed form of Underwriting Agreement among the Company and the
underwriters to be named therein (the "Underwriters") providing for the
sale by the Company and the purchase by the Underwriters of the Preferred
Stock (as executed with respect to each series of Preferred Stock, the
"Underwriting Agreement"). In addition, we have examined such other
documents and certificates and have reviewed such questions of law as we
considered necessary or appropriate for the purposes of this opinion. In
such examinations, we assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to factual matters, with respect to
information relevant to our opinions and in the possession of the Company,
we relied without investigation, to the extent we deem such reliance
appropriate, upon certificates given or representations made by the
Company's duly authorized representatives.
<PAGE> 3
Based upon such examination, and subject to the assumptions and
qualifications set forth herein, we are of the opinion that, when the
Registration Statement becomes effective under the Securities Act and all
other provisions of the Securities Act (including all rules and
regulations promulgated thereunder) applicable to the sale of the series
of Preferred Stock being sold to the Underwriters (the "Offered Series")
have been complied with, (b) the Board of Directors of the Company (or a
duly authorized committee thereof) adopts the Resolution with respect to
the Offered Series, (c) the Statement of Resolution with respect to the
Offered Series is filed with the Secretary of State of the State of Texas,
and (d) the certificates representing the shares of the Offered Series
have been duly executed, countersigned and registered, and delivered to
the Underwriters against the consideration therefor in accordance with the
terms of the Underwriting Agreement, such shares of the Offered Series
will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we assumed that the Restated
Articles and the Bylaws will remain in effect unaltered (except as amended
by the filing of any Statements of Resolution) through the last date on
which shares of Preferred Stock are sold to the Underwriters pursuant to
any Underwriting Agreement, (e) the Resolution adopted, the Statement of
Resolution filed and the Underwriting Agreement executed with respect to
each Offered Series will be in the form examined by us in connection with
the rendering of such opinion and (f) all shares of Preferred Stock will
be issued in compliance with all applicable state securities and Blue Sky
laws.
We are counsel admitted to practice law in the State of Texas, and
the foregoing opinion is limited to the laws of the State of Texas as in
effect on the date hereof.
This letter is furnished to you solely for your benefit in
connection with the filing of the Registration Statement and is not to be
used, circulated, quoted or otherwise referred to for any other purpose
without our prior written consent. We hereby consent to the filing of
this letter as an exhibit to the Registration Statement and to the
references to us in the Registration Statement under the heading "Legal
Opinions". In rendering the foregoing opinion and giving such consent, we
do not admit that we are of the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
Vinson & Elkins
JE/LM
<PAGE> 1
EXHIBIT 12(a)
<PAGE>
<PAGE> 2
<TABLE>
CENTRAL POWER AND LIGHT COMPANY
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
FOR YEAR ENDED DECEMBER 31
<CAPTION>
1993 1992 1991 1990 1989
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Operating Income $190,079 $266,665 $249,573 $162,527 $161,695
Adjustments:
Federal income taxes (19,690) 34,336 44,832 (2,124) (60,000)
Provision for deferred federal income taxes (net) 90,682 48,773 36,984 103,490 127,894
Deferred Investment Tax Credits (5,806) (5,837) (5,831) (6,103) (5,619)
Other income and deductions 2,237 1,117 396 (2,641) 4,243
Allowance for Borrowed and
equity funds used during construction 2,618 1,171 2,124 1,057 40,091
STP carrying costs -- -- -- 185,078 84,590
Mirror CWIP amortization 75,702 82,527 96,671 -- --
-------- -------- -------- -------- --------
Earnings $335,822 $428,752 $424,749 $441,284 $352,894
======== ======== ======== ======== ========
Fixed charges and preferred dividend requirements:
Interest on long-term debt $112,940 $125,476 $124,987 $126,584 $129,535
Amortization of debt issuance cost,
interest on short-term debt and other 11,993 7,266 8,697 15,521 12,511
Preferred dividend requirements 20,532 21,775 26,601 34,347 35,033
-------- -------- -------- -------- --------
Fixed Charges and Preferred Requirements $145,465 $154,517 $160,285 $176,452 $177,079
======== ======== ======== ======== ========
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends 2.31 2.77 2.65 2.50 1.99
======== ======== ======== ======== ========
</TABLE>
<PAGE>
<PAGE> 1
EXHIBIT 23(a)
<PAGE> 2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated February 25, 1994, included in Central Power and Light Company's
Annual Report on Form 10-K for the year ended December 31, 1993, and to
all references to our firm included in this registration statement.
/s/ ARTHUR ANDERSEN & CO.
ARTHUR ANDERSEN & CO.
Dallas, Texas
March 21, 1994
<PAGE> 1
EXHIBIT 26
<PAGE> 2
[Form of Invitation for Competitive Bid]
[Date]
Subject: Request for Proposal to Purchase $ Principal Amount of
Central Power & Light Company Preferred Stock
Dear [ ]:
Central Power and Light Company (the "Company") is requesting bids with
respect to the purchase from the Company of up to shares of its
Preferred Stock, $ par value per share. The Registration Statement on
Form S-3 relating to the Preferred Stock is effective. Bids will not be
accepted for less than the entire amount. You will be notified by
telephone or telecopy of any reduction in the number of shares offered no
later than a.m. New York Time on . Bids are being
solicited from the following firms:
*
*
*
In the event you are interested in submitting a bid proposal, we have
enclosed the following relevant documents:
a) Bid Acknowledgement
b) Form of Underwriting Agreement
c) Form of Prospective Purchaser's Questionnaire (to be delivered
to Milbank, Tweed, Hadley & McCloy by each of the firms listed
above submitting a Proposal, and if any such Firm is submitting
a Proposal as a member of a group, to be delivered by each
member of such group, in triplicate before a.m. New York
time on the day of submission of proposals)
d) Prospectus
e) Form of Prospectus Supplement
Representatives of the Company will be available by phone on
between a.m. and a.m. at (214) 777- to answer any
due diligence questions you may have.
Submission of Proposals: A Proposal may be submitted by an individual
firm of group of firms, which may include other firms listed above.
However, no firm may submit or participate, directly or through an
affiliate, in more than one Proposal.
Any Proposal submitted to the Company shall be irrevocable until :
a.m., New York time on , , unless such Proposal is
sooner rejected by the Company.
Acceptance of Proposals: Each firm should communicate by telephone its
Proposal by stating the information called for in the Form of Bid
Acknowledgement no later than : a.m., New York time, on ,
, , to the Company representative listed across from the name of
each respective firm shown below:
<PAGE> 3
Firm Company Representative
In addition, the Company requires that each bidder or representative of a
group of bidders, whether successful or not, fill in and return the Bid
Acknowledgement after the bids are made on .
Prior to : a.m., New York time on , , the Company may
accept at its option the proposal that provides it with the lowest
effective cost or may reject all proposals. The lowest effective cost to
the Company will be calculated by the Company using the following
methodology:
[ Definition of Methodology ]
A proposal shall be deemed rejected by the Company if it shall not have
been accepted by : a.m. New York time, on , .
In case two or more proposals provide the identical effective cost, the
Company (unless it rejects all proposals) will give the bidders of such
identical proposals an opportunity to improve their proposals. If no
improved proposals shall be made by such bidders within the time specified
by the Company, or if upon submission of such revised proposals, two or
more of such proposals provide the Company with the identical lowest
effective cost, the Company may accept any one of such identical proposals
at its discretion. The Company reserves the right to reject any and all
proposals.
Upon acceptance of a proposal, the designated firm shall immediately
transmit by facsimile a completed and executed Form of Bid Acknowledgement
and Underwriting Agreement to the Company at (214) 777-1223 Attention:
, Treasurer. The Company will then execute and transmit it
by facsimile to the designated firm.
The specific terms of the Preferred Stock with respect to this Request for
Proposal are included on the attached Form of Bid Acknowledgement
(Appendix A).
General: All questions as to the validity, form, eligibility and
acceptance of any of the Proposals will be determined by the Company, in
its sole discretion, which determination shall be final and binding. The
Company reserves the right to reject any and all proposals. The Company
further reserves the right to waive any irregularities in any or all of
the proposals.
Should you have any questions on the above procedures or the mechanics for
this security issue, please do not hesitate to call me at (214) 777-
or Counsel to the Underwriters, .
Sincerely,
Stephen D. Wise
<PAGE> 4
BID ACKNOWLEDGEMENT
This Bid Acknowledgement must be returned after submission of your
bid, whether accepted or rejected, for the purchase of
shares of Central Power & Light Company's % Preferred Stock, $ par
value per share. Bids are requested before a.m., New York time.
Dividend Rate:
Purchase Price to the Company: per share
Underwriting Discounts
& Commissions: per share
Public Offering Price
per share
Company:
Signature:
Return to:
Stephen D. Wise
Central and South West Corporation
P.O. Box 660164
Dallas, Texas 75266-0164
<PAGE> 5
APPENDIX A
Certain Terms Applicable to the Proposed Issuance of
shares of Preferred Stock, $ par value per share
("Preferred Stock") of Central Power & Light Company
Aggregate Principal Amount of Preferred Stock to be offered: $
Underwriting Discount: The Underwriting Discount shall not
exceed % of the principal amount of the Preferred Stock.
Proceeds to the Company: [To be determined]
Price to the Public: [To be determined]
Redemption Provisions: [To be determined]
Sinking Fund Provisions: [To be determined]
Dividend Payment Dates: [To be determined]
Closing: The closing of the sale of the Preferred Stock shall occur on
at a.m. at the offices of
.
General: All questions as to the validity, form, eligibility and
acceptance of any of the proceeds will be determined by the Company, in
its sole discretion, which determination shall be final and binding. The
Company reserves the right to reject any and all proposals. The Company
further reserves the right to waive any irregularities in any or all of
the proposals.
