Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
INDIANAPOLIS POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
INDIANA 35-0413620
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Monument Circle
P.O. Box 1595
Indianapolis, Indiana 46206-1595
(317) 261-8261
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
John R. Brehm
Senior Vice President, Finance and Information Services
Indianapolis Power & Light Company
One Monument Circle
P.O. Box 1595
Indianapolis, Indiana 46206-1595
(317) 261-8261
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Bryan G. Tabler, Esq. Helene R. Banks, Esq.
Indianapolis Power & Light Company Cahill Gordon & Reindel
One Monument Circle 80 Pine Street
P.O. Box 1595 New York, New York 10005-1702
Indianapolis, Indiana 46206-1595
Approximate date of commencement of proposed sale to the public:
After the effective date of this Registration Statement, as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [__]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [__]
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
=============================================================================================================================
Title of each class of | Amount to be | Proposed maximum | Proposed maximum | Amount of
securities to be | registered | offering price | aggregate offering | registration fee
registered | | per unit <F1> | price <F1> |
- -----------------------------------------------------------------------------------------------------------------------------
Cumulative Preferred | 500,000 shares | $100 | $50,000,000 | $14,750.00
Stock, $100 Par Value | | | |
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<FN>
<F1> Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(b).
</TABLE>
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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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, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED DECEMBER 18, 1997
500,000 Shares
INDIANAPOLIS POWER & LIGHT COMPANY
Cumulative Preferred Stock, $100 Par Value
Indianapolis Power & Light Company (the "Company")
intends from time to time to issue up to 500,000 shares
of its Cumulative Preferred Stock, $100 par value (the
"New Preferred Stock") in one or more series, on terms to
be determined when the agreement to sell is made or at
the time or times of sale, as the case may be. There is
no sinking fund for the purchase or redemption of shares
and no right of conversion of shares into common or other
junior stock of the Company. The designation, number of
shares, dividend rate, payment dates, redemption prices,
any listing on a national securities exchange, and any
other terms of the New Preferred Stock, in respect of
which this Prospectus is being delivered, will be set
forth in a supplement to this Prospectus ("Prospectus
Supplement"). See also "Description of the New Preferred
Stock" herein.
The New Preferred Stock may be sold directly by the
Company or through agents designated from time to time or
through underwriters or dealers which may include SBC
Warburg Dillon Read Inc., Merrill Lynch & Co., Inc. or
which may be a group of underwriters represented by SBC
Warburg Dillon Read Inc., Merrill Lynch & Co., Inc. or
other firms. If any agents of the Company or any
underwriters are involved in any sale of the New
Preferred Stock in respect of which this Prospectus is
being delivered, the names of such agents or
underwriters, the principal amount, if any, to be
purchased by the underwriters and the compensation, if
any, of such underwriters or agents will be set forth in
the Prospectus Supplement. See "Plan of Distribution"
herein.
Unless otherwise specified in a Prospectus
Supplement, each series of New Preferred Stock will be
represented by one or more global certificates registered
in the name of The Depository Trust Company ("DTC") or
its nominee. Beneficial interests in the New Preferred
Stock will be shown on, and transfer thereof will be
effected only through, records maintained by participants
in DTC. Except as described herein or in a Prospectus
Supplement, New Preferred Stock in certificated form will
not be issued in exchange for the global certificates.
See "Description of the New Preferred Stock - Book-Entry
Only" 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 _______________, 199__
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No person has been authorized to give any information or to
make any representations, other than those contained in this
Prospectus, in connection with the offer contained herein,
and if given or made, such information or representations must
not be relied upon as having been authorized by the Company or
any Underwriter. This Prospectus does not constitute an offer
to sell or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction where, or to or from any
person to whom, it is unlawful to make or solicit such offer.
Neither the delivery of this Prospectus nor any sale made
hereunder shall under any circumstances create any implication that
there has not been any change in the facts contained in or
incorporated by reference in this Prospectus or in the affairs of
the Company since the date hereof.
AVAILABLE INFORMATION
Indianapolis Power & Light Company (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,
information statements and other information filed by the
Company may be inspected and copied at the public
reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, and at the Commission's regional
offices located at Northwestern Atrium Center, 500 West
Madison Street, Chicago, Illinois 60661, and 7 World
Trade Center, 13th Floor, New York, New York 10048; and
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., Judiciary Plaza, Washington, D.C. 20549. The
Commission maintains a web site that contains reports,
proxy and information statements and other information
regarding registrants, like the Company, that file
electronically with the Commission. The address of the
Commission's web site is http://www.sec.gov.
The Company has filed with the Commission a
registration statement on Form S-3 (herein, together with
all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of
1933, as amended (the "Act"). This Prospectus does not
contain all of the information set forth in the
Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of
the Commission. For further information, reference is
hereby made to the Registration Statement.
___________________
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE
IN TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE
AFFECT THE PRICE OF THE SECURITIES OFFERED HEREBY. SUCH
TRANSACTIONS MAY INCLUDE STABILIZING, THE PURCHASE OF THE
SECURITIES OFFERED HEREBY TO COVER SHORT POSITIONS AND
THE IMPOSITION OF PENALTY BIDS. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF
DISTRIBUTION."
____________________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the
Commission pursuant to the Exchange Act are incorporated
by reference into this Prospectus:
1. The Company's Annual Report on Form 10-K
for the year ended December 31, 1996,
including the financial statements;
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2. The Company's Quarterly Reports on Form 10-
Q for the quarters ended March 31, 1997,
June 30, 1997 and September 30, 1997; and
3. The Company's Current Report on Form 8-K
dated November 12, 1997.
All documents filed by the Company pursuant to
Sections 13, 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
offered hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from
the date of filing of such documents.
The Company will provide without charge to each
person to whom a copy of this Prospectus has been
delivered, on the written or oral request of such person,
a copy of any or all of the documents referred to above
which have been or may be incorporated in this Prospectus
by reference, other than exhibits to such documents
unless specifically incorporated by reference into such
documents. Requests for such copies should be directed
to Mr. Bryan G. Tabler, Senior Vice President, Secretary
and General Counsel, Indianapolis Power & Light Company,
P.O. Box 1595, Indianapolis, Indiana 46206-1595,
telephone (317) 261-5134.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and any Prospectus Supplement
(including the documents incorporated herein or therein
by reference) contain statements that constitute forward-
looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Prospective
investors are cautioned that any such forward-looking
statements are not guarantees of future performance and
involve known and unknown risks, uncertainties and other
factors which may cause the actual results, performance
or achievements to differ materially from the future
results, performance or achievements expressed or implied
in such forward-looking statements. The words
"anticipate," "believe," "estimate," "expect," "project,"
"objective" and similar expressions are intended to
identify forward-looking statements.
THE COMPANY
Indianapolis Power & Light Company (the "Company"), a
wholly owned subsidiary of IPALCO Enterprises, Inc.
("IPALCO"), is an operating public utility incorporated
under the laws of the State of Indiana on October 27,
1926. The Company is engaged primarily in generating,
transmitting, distributing and selling electric energy in
the City of Indianapolis and neighboring cities, towns
and communities, and adjacent rural areas, all within the
State of Indiana, the most distant point being about
forty miles from Indianapolis. It also produces,
distributes and sells steam within a limited area in such
city. The principal executive offices of the Company and
its parent corporation are located at One Monument
Circle, Indianapolis, Indiana 46204, and its telephone
number is (317) 261-8261.
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RECENT TRANSACTIONS
On December 15, 1997, the Company redeemed all shares
of its 6.0% and 8.20% Series Cumulative Preferred Stock
at a price per share of $102 and $101, respectively,
together with dividends accrued through the date of
redemption.
USE OF PROCEEDS
The Company expects to apply the net proceeds from
the sale of the New Preferred Stock offered to reimburse
its treasury for the costs associated with IPALCO's
tender offer for the Company's preferred stock and the
redemption of the Company's outstanding 6.0% and 8.20%
Series Cumulative Preferred Stock, to repay unsecured
promissory notes and for general corporate purposes.
Specific application of the proceeds will be set forth in
a Prospectus Supplement.
<TABLE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table set forth the ratio of earnings
to combined fixed charges and preferred stock dividends
of the Company for the periods indicated:
<CAPTION>
Years Ended December 31,
====================================
Nine
Months
Ended
September
30, 1997 1996 1995 1994 1993 1992
--------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to 5.82 4.46 3.75 3.90 4.17 3.86
Combined Fixed
Charges and Preferred
Stock Dividends<FN1>
<FN>
<F1> For purposes of this ratio, earnings represent pre-tax income plus
fixed charges. Fixed charges represent interest charges and the
estimated interest portion of annual rentals.
</TABLE>
DESCRIPTION OF THE NEW PREFERRED STOCK
The following is a brief summary of certain
provisions of the Cumulative Preferred Stock (including
the series of Cumulative Preferred Stock for which this
Prospectus is being delivered (the "New Preferred
Stock")) contained in the Company's Amended Articles of
Incorporation (the "Amended Articles"), in the proposed
amendments to the Amended Articles establishing and
designating the New Preferred Stock and in the Mortgage
(as defined below). Such summaries do not purport to be
complete and are qualified in their entirety by reference
to the above documents, which are filed as exhibits to
the Registration Statement. References following the
paragraphs below are to Sections of Articles 5, 6 and 7
of the Company's Amended Articles.
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General
The Company's authorized preferred stock consists of
2,000,000 shares of Cumulative Preferred Stock, par value
$100 per share (the "Cumulative Preferred Stock"), and
3,000,000 shares of Variable Class Preferred Stock, with
a par value to be established by the Board of Directors
in accordance with the Amended Articles (the "Variable
Class Preferred Stock") (Article 5). On December 16,
1997, 91,353 shares of Cumulative Preferred Stock were
outstanding and no shares of Variable Class Preferred
Stock were outstanding.
The Cumulative Preferred Stock ranks senior to the
Company's common stock, no par value ("Common Stock"),
all shares of which are owned directly by the Company's
parent, IPALCO, with respect to dividends and assets.
The Cumulative Preferred Stock is issuable from time to
time in one or more series of equal rank, including the
New Preferred Stock, with such serial designations,
dividend rates, redemption prices, voluntary liquidation
preference prices, sinking fund provisions, conversion
rights, and maximum number of shares as the Board of
Directors may determine (Article 6, Subdivision A,
Sections 2, 3 and 4).
Dividend Rights
The holders of each series of Cumulative Preferred
Stock are entitled to receive cumulative cash dividends,
when and as declared by the Board of Directors, at the
rates determined for the respective series, before any
dividends may be declared or paid on the Common Stock.
Dividends on the New Preferred Stock will be payable at
the annual rate per share set forth in the accompanying
Prospectus Supplement on the first day of January, April,
July and October in each year, commencing on the date set
forth in the Prospectus Supplement, and such dividends
will be cumulative from the date of initial issuance of
the New Preferred Stock. (Article 6, Subdivision A,
Section 4(a)).
Restrictions on Dividends and Distributions
So long as any of the several series of bonds of the
Company issued under the Mortgage and Deed of Trust, as
supplemented and modified, executed by the Company to
American National Bank and Trust Company of Chicago, as
Trustee, dated May 1, 1940 (the "Mortgage"), remain
outstanding, the Company is restricted in the declaration
and payment of dividends, or other distribution on shares
of its capital stock or the purchase or redemption of
such shares, to the aggregate of its net income, as
defined in Section 47 of the Mortgage, available for
dividends after December 31, 1939. Such restrictions do
not apply to the declaration or payment of dividends upon
any shares of capital stock of any class to an amount in
the aggregate not in excess of $1,107,155, or to the
application to the purchase or redemption of any shares
of capital stock of any class of amounts not to exceed in
the aggregate the net proceeds received by the Company
from the sale of any shares of its capital stock of any
class subsequent to December 31, 1939. The amount which
these provisions would have permitted the Company to
declare and pay as dividends at December 31, 1996
exceeded retained earnings at that date.
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Voting Rights
The Company currently has two classes of capital
stock outstanding, Cumulative Preferred Stock and Common
Stock. The holders of the Cumulative Preferred Stock are
entitled to two votes and the holders of the Common Stock
are entitled to one vote for each share held by them for
the election of directors and on all other matters,
except as otherwise provided by the Amended Articles, as
in effect, or hereafter amended, and except that certain
corporate actions enumerated in the Amended Articles may
not be taken without the affirmative vote of the holders
of certain specified percentages of the Cumulative
Preferred Stock voting separately as a class. (Article
6, Subdivision A, Section 4(d), (e), (f) and Article 7,
Sections 1 and 2)
If and when dividends payable on the outstanding
Cumulative Preferred Stock shall be in default in an
amount equivalent to four full quarter-yearly dividends,
the holders of all shares thereof, voting separately as a
class, will be entitled to elect at annual meetings of
stockholders for the election of directors, until such
default shall have been remedied, the smallest number of
directors necessary to constitute a majority of the full
board, and the holders of Common Stock, voting separately
as a class, shall be entitled to elect the remaining
directors. (Article 7, Section 2)
Liquidation Rights
Upon any voluntary liquidation, dissolution or
winding-up of the Company the Cumulative Preferred Stock
of each series shall be entitled before any distribution
shall be made to the holders of the Common Stock, to be
paid only the full preferential amount fixed by the Board
of Directors for such series, and, in the event of
involuntary liquidation, dissolution or winding-up of the
Company, the Cumulative Preferred Stock of each series
shall be entitled to be paid only the sum of $100 per
share, in each case, plus dividends accrued and unpaid
thereon. If upon any such liquidation, dissolution or
winding-up of the Company, the assets distributable among
the holders of the Cumulative Preferred Stock shall be
insufficient to permit the payment in full to such
holders of the preferential amounts aforesaid, then the
entire assets of the Company shall be distributed among
the holders of the Cumulative Preferred Stock then
outstanding, ratably in proportion to the full
preferential amounts to which they are respectively
entitled (Article 6, Subdivision A, Section 4(b)). The
voluntary liquidation preference of the New Preferred
Stock shall be the redemption price per share in effect
at the time of such liquidation as fixed by the Board of
Directors.
Sinking Fund, Preemptive and Conversion Rights
No outstanding series of the Cumulative Preferred
Stock, including the New Preferred Stock, has sinking
fund provisions, preemptive rights or conversion rights.
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Redemption Provisions
The Company, by action of its Board of Directors, may
redeem the whole or any part of the Cumulative Preferred
Stock at any time or from time to time (if in part, by
lot or in such other manner as the Board of Directors may
determine), at a price for each series thereof equal to
the par value thereof, plus a premium of such additional
amount per share, if any, as shall have been fixed to be
payable in case of redemption in respect of such series,
together with the amount of all dividends accrued or in
arrears thereon to the date fixed for redemption upon not
less than 30 days nor more than 90 days notice by mail
(Article 6, Subdivision A, Section 4(c)). The right of
the Company to redeem the Cumulative Preferred Stock will
be subject to the restrictions set forth under the
caption "Restrictions on Dividends and Distributions"
above. The New Preferred Stock will be subject to
redemption at the prices set forth in a Prospectus
Supplement, and may not be redeemed prior to the date
specified in a Prospectus Supplement.
Liability to Assessment
The shares of the Cumulative Preferred Stock now
issued and outstanding are, and the New Preferred Stock
when issued will be, fully paid and non-assessable and
will not be liable to further calls or assessments.
Transfer Agent and Registrar
Transfer Agent and Registrar for the New Preferred
Stock will be the Company through its Shareholders
Services Division and Treasury Organization,
respectively.
Book-Entry Only
Unless otherwise set forth in a Prospectus Supplement
with respect to the New Preferred Stock, the Depository
Trust Company ("DTC"), New York, New York, will act as
securities depository for the New Preferred Stock. The
New Preferred Stock will be issued as fully-registered
securities registered in the name of Cede & Co. (DTC's
partnership nominee). One fully-registered New Preferred
Stock certificate will be issued for the New Preferred
Stock of each series, in the aggregate principal amount
of such issue, and will be deposited with DTC.
DTC is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC holds
securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as
transfers and pledges, in deposited securities through
electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct
Participants ("Direct Participants") include securities
brokers and dealers, banks, trust companies, clearing
corporations and
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certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and
the National Association of Securities Dealers, Inc.
Access to the DTC system is also available to others such
as securities brokers and dealers, banks and trust
companies that clear through or maintain a
custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The
Rules applicable to DTC and its Participants are on file
with the Commission.
Purchases of the New Preferred Stock under the DTC
system must be made by or through Direct Participants,
which will receive a credit for the New Preferred Stock
on DTC's records. The ownership interest of each actual
purchaser of the New Preferred Stock ("Beneficial Owner")
is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the
Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers
of Ownership interests in the New Preferred Stock are to
be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates
representing their ownership interests in the New
Preferred Stock, except in the event that use of the book-
entry system for the New Preferred Stock is discontinued.
To facilitate subsequent transfers, all New Preferred
Stock deposited by Participants with DTC is registered in
the name of DTC's partnership nominee, Cede & Co. The
deposit of the New Preferred Stock with DTC and its
registration in the name of Cede & Co. effects no change
in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the New Preferred Stock;
DTC's records reflect only the identity of the Direct
Participants to whose accounts such New Preferred Stock
is credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC
to Direct Participants, by Direct Participants to
Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners, will be
governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect
from time to time.
Redemption notices shall be sent to Cede & Co. If
less than all of the New Preferred Stock is being
redeemed, DTC's practice is to determine by lot the
amount of the interest of each Direct Participant in the
New Preferred Stock to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with
respect to the New Preferred Stock. Under its usual
procedures, DTC mails an Omnibus Proxy to the issuer of
securities deposited with DTC as soon as possible after
the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants
to whose accounts the securities are credited on the
record date (identified in a listing attached to the
Omnibus Proxy).
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Dividend payments on the New Preferred Stock will be
made to DTC. DTC's practice is to credit Direct
Participants' accounts on payable date in accordance with
their respective holdings shown on DTC's records unless
DTC has reason to believe that it will not receive
payment on payable date. Payments by Participants to
Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer
form or registered in "street name," and will be the
responsibility of such Participant and not of DTC or the
Company, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Payment of dividends to DTC is the responsibility of the
Company, disbursement of such payments to Direct
Participants shall be the responsibility of DTC and
disbursement of such payments to the Beneficial Owners
shall be the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as
securities depository with respect to the New Preferred
Stock at any time by giving reasonable notice to the
Company. Under such circumstances, in the event that a
successor securities depository is not obtained, the New
Preferred Stock certificates are required to be printed
and delivered.
The Company may decide to discontinue use of the
system of book-entry transfers through DTC (or a
successor securities depository). In that event, the New
Preferred Stock certificates will be printed and
delivered.
The information in this section concerning DTC and
DTC's book-entry system has been obtained from sources
that the Company believes to be reliable, but the Company
takes no responsibility for the accuracy thereof.
PLAN OF DISTRIBUTION
The Company may sell the New Preferred Stock in any
of three ways: (i) through underwriters or dealers; (ii)
directly to a limited number of purchasers or to a single
purchaser; or (iii) through agents. However, it is
expected that the New Preferred Stock will be sold to SBC
Warburg Dillon Read Inc. and Merrill Lynch & Co., Inc.,
or to an underwriting syndicate represented by such
firms, for public offering. The Prospectus Supplement
with respect to the New Preferred Stock will set forth
the terms of the offering, including the name or names of
any underwriters, the initial public offering price and
the proceeds to the Company from such sale, any
underwriting discounts and other items constituting
underwriters' compensation, 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 underwriters are used in the sale, the New
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 sale. The New
Preferred Stock may be offered to the public
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either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more
underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of New
Preferred Stock will be named in the Prospectus
Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter
or underwriters will be set forth on the cover page of
such Prospectus Supplement. Unless otherwise set forth
in the Prospectus Supplement, the obligations of the
underwriters to purchase the New Preferred Stock will be
subject to certain conditions precedent, the underwriters
will be obligated to purchase all shares of the New
Preferred Stock if any are purchased and the Company will
have agreed to indemnify the underwriters against certain
civil liabilities including liabilities under the Act.
If shares of the New Preferred Stock are sold
directly by the Company or through agents designated by
the Company from time to time, any agent involved in the
offer or sale of the New Preferred Stock in respect of
which this Prospectus is delivered will be named, and any
commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for
the period of its appointment.
In connection with the offering of the New Preferred
Stock, certain persons participating in the offering of
the New Preferred Stock may engage in transactions that
stabilize, maintain or otherwise affect the price of the
New Preferred Stock. Specifically, the underwriters may
bid for and purchase New Preferred Stock in the open
market to stabilize the New Preferred Stock. The
underwriters may also overallot the offering of the New
Preferred Stock, creating a syndicate short position. In
addition, the underwriters may bid for and purchase the
New Preferred Stock in market making transactions and
impose penalty bids. These activities may stabilize or
maintain the market price of the New Preferred Stock
above market levels that might otherwise prevail. The
underwriters are not required to engage in these
activities, and may end these activities at any time.
EXPERTS
The financial statements incorporated in this
Prospectus by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1996 have
been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is
incorporated herein by reference, and has been so
incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and
auditing.
The statements as to matters of law and legal
conclusions under the caption "Description of the New
Preferred Stock" have been reviewed by Bryan G. Tabler,
Senior Vice President, Secretary and General Counsel of
the Company, and are made on his authority. As of
December 1, 1997, Mr. Tabler owned 15,699 shares of
IPALCO's common stock and has an option to purchase
45,000 additional shares which is currently exercisable.
Mr. Tabler is acquiring additional shares of IPALCO's
common stock at regular intervals through the Company's
Employees' Thrift Plan and through IPALCO's dividend
reinvestment plan.
11
LEGAL OPINIONS
The legality of the New Preferred Stock will be
passed upon for the Company by Bryan G. Tabler, Senior
Vice President, Secretary and General Counsel of the
Company, and for the underwriters by Cahill Gordon &
Reindel (a partnership including a professional
corporation), 80 Pine Street, New York, NY 10005-1702.
12
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses to be
incurred in connection with the issuance and distribution
of the securities being registered. All amounts shown
are estimates, except the registration fee.
Securities and Exchange Commission
Registration Fee. . . . . . . . . . . . . $14,750
Rating Agency Fees. . . . . . . . . . . . . . $15,000*
Fees and Expenses of Accountants. . . . . . . 10,000*
Fees and Expenses of Counsel. . . . . . . . . 15,000*
Blue Sky and Legal Investment
Fees and Expenses. . . . . . . . . . . . . 5,000*
Printing Expenses . . . . . . . . . . . . . . 5,000*
Miscellaneous . . . . . . . . . . . . . . . . 5,000*
------
Total. . . . . . . . . . . . . . . $69,750*
=======
* Estimated
Item 15. Indemnification of Directors and Officers.
The following discussion of the indemnification
provisions of the Indiana Business Corporation Law
(Indiana Code '23-1-37) (the "Law"), which applies to the
Company, is a summary, is not meant to be complete, and
is qualified in its entirety by reference to the Law.
The Law provides indemnity for present and past
directors, officers, employees and agents of the Company
and of other entities including partnerships, trusts and
employee benefit plans who serve in such capacities at
the request of the Company, against obligations to pay
judgments, settlements, penalties, fines and reasonable
expenses including attorneys' fees, as the result of
threatened, pending or completed actions, suits or
proceedings, whether criminal, civil, administrative or
investigations to which they are parties, if it is
determined by a majority of uninvolved directors, a
committee of the board of directors or special counsel
selected by the board of directors that they acted in
good faith and they reasonably believed their conduct in
their official capacity was in the Company's best
interests or if such conduct was not in their official
capacity, that the same was not opposed to the Company's
best interests, and that in criminal proceedings they had
reasonable cause to believe their conduct was lawful or
that it was not unlawful. The Law provides for mandatory
indemnification for directors and officers against
reasonable expenses incurred if they were wholly
successful in the defense of such proceeding. Also
termination of a proceeding by judgment, settlement or
like disposition is not determinative that the director,
officer, employee or agent did not meet
II-1
the standard of conduct set forth in the Law. The indemnity
provided by the Law may be enforced in court and provision
is made for advancement of expenses. The Law also permits
the Company to insure its liability on behalf of the
directors, officers, employees and agents so indemnified
and the Law does not exclude any other rights in
indemnification and advancement of expenses provided in
the Company's Amended Articles of Incorporation, By-Laws
or resolutions of its board of directors or its
shareholders.
Article 12, Section 9 of the Amended Articles of
Incorporation of the Company provides as follows:
"The Company may indemnify any director or
officer, or former director or officer, of the
Company, or any person who may serve at its
request as a director or officer of another
corporation in which it owns shares or of which
it is a creditor, against expenses actually and
reasonably incurred by him in connection with the
defense of any action, suit or proceeding, civil
or criminal, in which he is made a party by
reason of being or having been such director or
officer, or against judgments, fines, penalties,
court costs and attorney's fees, or reasonable
amounts paid by him in settlement in connection
with any such action, suit or proceeding, if he
has acted in good faith and in a manner he
reasonably believed to be in, or not opposed to,
the best interests of the Company, or, in respect
to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was
unlawful; provided that no such director or
officer shall be so indemnified in relation to
matters as to which he shall be adjudged in any
such action, suit or proceeding to be liable for
negligence or misconduct in the performance of
duty.
"The termination of any action, suit or
proceeding by settlement, or upon a plea of nolo
contendere, or its equivalent, shall not, of
itself, create a presumption that the director or
officer involved therein did not act in good
faith and in a manner which he reasonably
believed to be in, or not opposed to, the best
interests of the Company, or, in respect to any
criminal action or proceeding, that he had
reasonable cause to believe his conduct was
unlawful.
"Any indemnification shall be made by the
Company only as authorized in a specific case
upon the determination that indemnification of
the director or officer is proper in the
circumstances because he has met the applicable
standard of conduct set forth in this section.
Such determination shall be made by the Board of
Directors by a majority vote of a quorum
consisting of directors who were not parties to
such action, suit or proceeding, or if such a
quorum is not obtainable, or if a quorum of
disinterested directors so directs, by
independent legal counsel in a written opinion.
"Any such indemnification of a director or
officer shall not be deemed exclusive of any
other rights to which he may be entitled as a
matter of law or under any other provision of
these Amended Articles, or any resolution, or
other authorization heretofore or hereafter
adopted, after notice, by a majority vote of
II-2
all the voting shares of the Company then issued and
outstanding."
The Company has insured its liability where
indemnification of its directors and officers is proper
under the above provision of its Amended Articles of
Incorporation up to an aggregate of $35,000,000. This
policy also provides coverage for directors and officers
in cases where the Company does not provide
indemnification.
Item 16. List of Exhibits.
Exhibits required to be filed with this Registration
Statement are listed in the following Exhibit Index.
Certain of such exhibits which have previously been filed
with the Commission and which are designated by reference
to their exhibit numbers in prior filings are hereby
incorporated by reference and made a part hereof.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes (1)
to file, during any period in which offers or sales are
being made, a post-effective amendment to the
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 clauses (a)(1)(i) and (a)(1)(ii) of this
Section do not apply if the information required to be
included in a post-effective amendment by those clauses
is contained in periodic reports filed with or furnished
to the Commission 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; and (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.
(b) The undersigned registrant hereby undertakes
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 (and, where
applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
II-3
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of
the Securities and Exchange Commission such
indemnification is against public policy as expressed
in the 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.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Company certifies that it has reasonable
grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Indianapolis, State of Indiana, on December 18, 1997.
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ John R. Hodowal
John R. Hodowal, Chairman
of the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates
indicated.
Signature Title Date
(1) Principal Executive
Officer:
/s/ John R. Hodowal Chairman of the Board December 18, 1997
John R. Hodowal and Chief Executive
Officer
(2) Principal Financial
Officer:
/s/ John R. Brehm Senior Vice President - December 18, 1997
John R. Brehm Finance and Information
Services
(3) Principal Accounting
Officer:
/s/ Stephen J. Plunkett Controller December 18, 1997
Stephen J. Plunkett
(4) A majority of the Board of Directors:
*Joseph D. Barnette, Jr. Director
*Robert A. Borns Director
*Mitchell E. Daniels, Jr. Director
II-5
*Otto N. Frenzel III Director
*Earl B. Herr, Jr. Director
*John R. Hodowal Director
*Ramon L. Humke Director December 18, 1997
*Sam H. Jones Director
*Andre B. Lacy Director
*Michael S. Maurer Director
*Sallie W. Rowland Director
*Thomas H. Sams Director
*By: /s/ Bryan G. Tabler
Bryan G. Tabler, Attorney-in-Fact
II-6
EXHIBIT INDEX
Page
Exhibit 1 Copy of Underwriting Agreement Basic
Provisions. A Terms Agreement with
respect to each particular offering
of Cumulative Preferred Stock
registered hereunder will be filed
as an exhibit to a Current Report on
Form 8-K and incorporated therein by
reference
Exhibit 3(a) Copy of Amended Articles of Incorporation,
as amended.
Exhibit 3(b) Articles of Amendment designating series
and stating the preferences, limitations
and relative rights of the New Preferred
Stock will be filed as an exhibit to a
Current Report on Form 8-K and incorporated
therein by reference.
Exhibit 4(a)* Copy of Mortgage and Deed of Trust, dated
as of May 1, 1940, between the Company and
American National Bank and Trust Company of
Chicago, Trustee, as Supplemented and
modified by 42 Supplemental Indentures
Exhibits D in File No. 2-4396; B-1 in
File No. 2-6210; 7-C in File No. 2-
7944; 7-D in File No. 2-72944; 7-E in
File No. 2-8106; 7-F in File No. 2-
8749; 7-G in File No. 2-8749; 4-Q in
File No. 2-10052; 2-I in File No. 2-
12488; 2-J in File No. 2-13903; 2-K
in File No. 2-22553; 2-L in File No.
2-24581; 2-M in File No. 2-26156; 4-D
in File No. 2-6884; 2-D in File No. 2-
38332; Exhibit A to Form 8-K for
October 1970; Exhibit 2-F in File No.
2-47162; 2-F in File No. 2-50260; 2-G
in File No. 2-50260; 2-F in File No.
2-53541; 2-E in File No. 2-55154; 2-E
in File No. 2-60819; 2-F in File No.
2-60819; 2-G in File No. 2-60819;
Exhibit A to Form 10-Q for the
quarter ended 9-30-78 in File No. 1-
3132; 13-4 in File No. 2-73213;
Exhibit 4 in File No. 2-93092. Copy
of Twenty-Eighth and Twenty-Ninth
Supplemental Indentures dated as of
November 1, 1983 and December 1,
1984, respectively. (Form 10-K for
the year ended 12-31-84.) Copy of
Thirtieth Supplemental Indenture
dated as of September 1, 1985. (Form
10-K for the year ended 12-31-85.)
Copy of Thirty-First Supplemental
Indenture dated as of October 1,
1986. (Form 10-K for the year ended
12-31-86). Copy of Thirty-Second
Supplemental Indenture dated as of
June 1, 1989. (Form 10-Q for the
quarter ended 6-30-89). Copy of
Thirty-Third Supplemental Indenture
dated as of August 1, 1989. (Form 10-
K for the year ended 12-31-89). Copy
of Thirty-Fourth Supplemental
Indenture dated as of October 15,
1991. (Form 10-K for the year ended
12/31/91). Copy of Thirty-Fifth
Supplemental Indenture dated as of
August 1, 1992. (Form 10-K for the
year ended 12/31/92). Copy of Thirty-
Sixth, Thirty-Seventh and Thirty-
Eighth Supplemental Indentures dated
as of April 1, 1993, October 1, 1993
and October 1, 1993, respectively.
(Form 10-Q for quarter ended 9-30-
93). Copy of Thirty-Ninth and
Fortieth Supplemental Indentures
dated as of February 1, 1994. (Form
8-K dated January 25, 1994) Copy of
Fortieth-First Supplemental Indenture
dated as of January 15, 1995. (Form
10-K for the year ended 12/31/94).
Copy of Fortieth-Second Supplemental
Indenture dated as of October 1,
1995. (Form 10-K for the year ended
12/31/95).
Exhibit 4(b) Form of New Preferred Stock
Certificate
Exhibit 5 Opinion of Bryan G. Tabler,
Senior Vice President, Secretary and
General Counsel of the Company, with
respect to the legality of the
securities registered hereunder
Exhibit 12 Statements regarding computation of
ratios
Exhibit 23(a) Consent of Deloitte & Touche LLP
Exhibit 23(b) Consent of Bryan G. Tabler,
Senior Vice President, Secretary and
General Counsel of the Company
(contained in opinion of counsel
filed as Exhibit 5)
Exhibit 24 Powers of Attorney executed by
directors on whose behalf this
Registration Statement was signed
- --------------------------
*Incorporated by Reference
E-1
EXHIBIT 1
Indianapolis Power & Light Company
Cumulative Preferred Stock
$100 Par Value
UNDERWRITING AGREEMENT BASIC PROVISIONS
The basic provisions set forth herein are intended to be
incorporated by reference in a terms agreement (a "Terms
Agreement") of the type referred to in Paragraph 2 hereof
executed by Indianapolis Power & Light Company (the "Company")
and the underwriter or underwriters named therein (the
"Underwriters"). With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions
hereof incorporated therein by reference, is herein referred to
as this "Agreement." Terms defined in the Terms Agreement are
used herein as therein defined.
The Company may issue and sell from time to time series of
its Cumulative Preferred Stock, $100 par value, registered
under the registration statement referred to in Paragraph 1(a)
hereof (the "New Preferred Stock"). The New Preferred Stock
may have varying designations, preferences, rights, powers,
restrictions, dividend rates and payment dates, redemption
provisions and selling prices, with all such terms for any
particular series of New Preferred Stock (together with any
other terms relating to such series) to be determined and set
forth in the Terms Agreement relating to the series.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect
to the New Preferred Stock has been prepared by the Company
in conformity with the requirements of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has become
effective. As used in this Agreement, (i) "Preliminary
Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in that
registration statement, or amendments or supplements thereto,
before it became effective under the Act, including any
prospectus filed with the Commission pursuant to Rule 424(a) of
the Rules and Regulations, (ii) "Registration Statement" means
that registration statement, as amended or supplemented at the
date of the Terms Agreement; (iii) "Basic Prospectus" means the
prospectus (including all documents incorporated therein by
reference) included in the Registration Statement; and
(iv) "Prospectus" means the Basic Prospectus, together with
each prospectus amendment or supplement (including in each case
all documents incorporated therein by reference) specifically
relating to the New Preferred Stock, as filed with, or mailed
for filing to, the Commission pursuant to paragraph(b) or (c)
of Rule 424 of the Rules and Regulations. The Commission has
not issued any order preventing or suspending the use of any
Prospectus.
(b) The Registration Statement and each Prospectus contains,
and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which
this representation is being made) will contain at all times
during the period specified in Paragraph 6(c) hereof, all
statements which are required by the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations of the Commission under the Act and the
Exchange Act; and the Registration Statement and each
Prospectus does not, and (in the case of any amendment or
supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission
after the date as of which this representation is being made)
will not at any time during the period specified in Paragraph
6(c) hereof, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty
as to information contained in or omitted from the Registration
Statement or any Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Underwriters by or on behalf of any Underwriter specifically
for inclusion therein.
(c) The Company is not in violation of its corporate charter
or by-laws or in default under any agreement, mortgage or
instrument, the effect of which violation or default would be
material to the Company, the execution, delivery and
performance of this Agreement and compliance by the Company
with the provisions of the New Preferred Stock will not
conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the
Company pursuant to the terms of, or constitute a default
under, any agreement, mortgage or instrument, or result in a
violation of the corporate charter or by-laws of the Company or
any order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, or its respective
properties, and except as required by the Act, the Exchange
Act, The Public Service Commission Act of Indiana and
applicable state securities laws; no consent, authorization or
order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement.
(d) Except as described in or contemplated by the Registration
Statement and each Prospectus, there has not been any material
adverse change in, or any adverse development which materially
affects, the business, properties, financial condition, results
of operations or prospects of the Company from the dates as of
which information is given in the Registration Statement and
each Prospectus.
(e) Deloitte & Touche, whose report appears in the Company's
most recent Annual Report on Form 10-K which is incorporated by
reference in each Prospectus, are independent certified public
accountants as required by the Act and the Rules and
Regulations.
(f) On the Delivery Date (as defined in Paragraph 5 hereof),
(i) the New Preferred Stock will have been validly authorized
and, upon payment therefor as provided in this Agreement, will
be validly issued and outstanding, will be fully paid and
nonassessable and have the rights set forth in the Amended
Articles of Incorporation, as amended, of the Company and (ii)
the New Preferred Stock will conform to the description thereof
contained in the Prospectus.
(g) The Company is duly incorporated and validly existing
under the laws of the State of Indiana, is not required to
qualify to do business as a foreign corporation in any other
jurisdiction, and has the power and authority necessary to own
or hold its respective properties and to conduct the businesses
in which it is engaged.
(h) Except as described in each Prospectus, there is no
material litigation or governmental proceeding pending or, to
the knowledge of the Company, threatened against the Company
which might result in any material adverse change in the
financial condition, results of operations, business or
prospects of the Company or which is required to be disclosed
in the Registration Statement.
(i) The financial statements filed as part of the
Registration Statement or included in any Preliminary Prospectus
or Prospectus Supplement (or in the case of any amendment or
supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission
after the date as of which this representation is being made),
will present fairly, the financial condition and results of
operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been, and (in
the case of any amendment or supplement to any such document,
or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be, prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(j) The documents incorporated by reference into any
Preliminary Prospectus or Prospectus have been and (in the case
of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed
with the Commission after the date as of which this
representation is being made) will be at all times during the
period specified in Paragraph 6(c) hereof, prepared by the
Company in conformity with the applicable requirements of the
Act and the Rules and Regulations and the Exchange Act and the
rules and regulations of the Commission thereunder and such
documents have been (or in the case of any amendment or
supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission
after the date as of which this representation is being made)
will be, at all times during the period specified in Paragraph
6(c) hereof, timely filed as required thereby.
(k) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement
by the Act or by the Rules and Regulations, or which were
required to be filed as exhibits to any document incorporated
by reference in any Prospectus by the Exchange Act or the rules
and regulations of the Commission thereunder, which have not
been filed as exhibits to the Registration Statement or to such
document incorporated therein by reference as permitted by the
Rules and Regulations or the rules and regulations of the
Commission under the Exchange Act as required.
(l) The Indiana Utility Regulatory Commission has issued an
appropriate order with respect to the issue and sale of the New
Preferred Stock; such order is sufficient for the issue and
sale of the New Preferred Stock; the terms of this Agreement
with respect to the issue and sale of the New Preferred Stock
are in conformity with the terms of such order; no other
approval or consent of any governmental body (other than in
connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction) is legally
required for the issue and sale of the New Preferred Stock by
the Company or the carrying out of the provisions of this
Agreement.
2. The obligation of the Underwriters to purchase, and the Company to
sell, the New Preferred Stock shall be evidenced by a Terms Agreement
delivered at the time the Company determines to sell the New Preferred Stock.
The Terms Agreement specifies the firm or firms which will be Underwriters,
the number of shares of the New Preferred Stock to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters for the New
Preferred Stock, the public offering price of the New Preferred Stock and
any terms of the New Preferred Stock not already specified herein (including,
but not limited to, designations, dividend rates, payment dates and
redemption provisions). The Terms Agreement specifies any details of the
terms of the offering which should be reflected in a post-effective amendment
to the Registration Statement or the supplement to the Prospectus relating to
the offering of the New Preferred Stock.
3. The Company shall not be obligated to deliver any New Preferred
Stock except upon payment for all New Preferred Stock to be purchased
pursuant to this Agreement as hereinafter provided.
4. If any one or more of the Underwriters defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriter or Underwriters or such other underwriters satisfactory to the
Company who so agree, shall have the right, but shall not be obligated to,
purchase in such proportion as may be agreed upon among them, the shares
of New Preferred Stock which the defaulting Underwriter failed to purchase.
If the non-defaulting Underwriter or Underwriters or other underwriters
satisfactory to the non-defaulting Underwriters and the Company do not elect
to purchase the New Preferred Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment
of expenses as set forth in Paragraphs 6(j) and 10 hereof.
Nothing contained in this Paragraph 4 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused
by its default. If other Underwriters are obligated or agree to purchase the
New Preferred Stock of the defaulting or withdrawing Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Delivery Date for
up to seven full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, any Prospectus or in any other
document or arrangement.
5. Delivery of any payment for the New Preferred Stock shall be made
at the office of SBC Warburg Dillon Read, Inc. upon or before the third
business day following the date of the Terms Agreement, or at such other
location, time and date as shall be agreed upon as specified in the Terms
Agreement. This date and time are sometimes referred to as the "Delivery
Date." On the Delivery Date, the Company shall deliver the New Preferred
Stock to the Underwriters for the account of each Underwriter against payment
to or upon the order of the Company of the purchase price by certified or
official bank check or checks payable in New York Clearing House funds or by
wire transferred immediately available funds, as shall be provided in the
Terms Agreement. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the New Preferred
Stock shall be in definitive fully registered form and in such denominations
and registered in such names, as the Underwriters shall request in writing
not less than two full business days prior to the Delivery Date. For the
purpose of expediting the checking and packaging of the shares of New
Preferred Stock the Company shall make the New Preferred Stock available for
inspection by the Representative in New York, New York not later than 2:00
P.M., New York City Time, on the business day prior to the Delivery Date.
6. The Company agrees:
(a) To furnish promptly to the Underwriters and to counsel
for the Underwriters a conformed copy of the Registration Statement
and each amendment or supplement thereto filed prior to the
date of the Terms Agreement or relating to or covering the New
Preferred Stock, and a copy of each Prospectus filed with the
Commission, including all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Underwriters such number of
the following documents as the Underwriters may request: (i)
conformed copies of the Registration Statement (excluding
exhibits other than this Agreement), (ii) the computation of
the ratio of earnings to fixed charges and preferred stock
dividends, (iii) each Prospectus, and (iv) any documents
incorporated by reference in any Prospectus;
(c) Subject to clause (d), to file with the Commission,
during such period following the date of the Terms Agreement as,
in the opinion of counsel for the Underwriters, any Prospectus is
required by law to be delivered, any amendment or supplement to
the Registration Statement or any Prospectus that may, in the
judgment of the Company or the Underwriters, be required by the
Act or requested by the Commission;
(d) During the period referred to in (c) above not to file
with the Commission(i) any amendment or supplement to the
Registration Statement, (ii) any Prospectus or any amendment or
supplement thereto or (iii) any document incorporated by
reference in any of the foregoing or any amendment or
supplement to any such incorporated document, unless a copy
thereof has been previously furnished to the Underwriters and
to counsel for the Underwriters and the Underwriters shall not
have objected to the filing;
(e) To advise the Underwriters promptly (i) when any post-
effective amendment to the Registration Statement relating to
or covering the New Preferred Stock becomes effective, (ii) of
any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement, to any
Prospectus, to any document incorporated by reference in any of
the foregoing or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order
directed to any Prospectus or any document incorporated therein
by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of
any document incorporated by reference in any Prospectus,
(iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the New Preferred
Stock for sale in any jurisdiction or the initiation or threat
of any proceeding for that purpose and (v) of the happening of
any event which makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or which
requires the making of a change in the Registration Statement
or any Prospectus in order to make the statements therein not
misleading;
(f) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting of that order at the
earliest possible time;
(g) To make generally available to its security holders and
to deliver to the Underwriters an earnings statement, conforming
with the requirements of Section 11(a) of the Act, covering a
period of at least twelve months beginning after the effective
date of the Registration Statement;
(h) So long as any shares of the New Preferred Stock are
outstanding, to furnish to the Underwriters copies of all
public reports and all reports and financial statements
furnished by the Company to the New York Stock Exchange
pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(i) To take all reasonable efforts to qualify the New
Preferred Stock for offer and sale under the securities laws of
such jurisdictions as the Underwriters may reasonably request;
(j) To pay the costs incident to the authorization, issuance,
sale and delivery of the New Preferred Stock and any taxes
payable in that connection; the costs incident to the
preparation, printing and filing under the Act of the
Registration Statement and any amendments, supplements and
exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Company under the
Exchange Act; the costs of distributing the Registration
Statement as originally filed and each amendment and post-
effective amendment thereof (including exhibits), any
Preliminary Prospectus, each Prospectus and any documents
incorporated by reference in any of the foregoing documents;
the costs of printing this Agreement, if any; the costs of
filings with the National Association of Securities Dealers,
Inc.; fees paid to rating agencies in connection with the
rating of the New Preferred Stock; the fees and expenses of
qualifying the New Preferred Stock under the securities laws of
the several jurisdictions as provided in this Paragraph and of
preparing and printing Blue Sky and legality memoranda
(including fees of counsel to the Underwriters); the costs and
charges of any transfer agent or registrar (including DTC); and
all other costs and expenses incident to the performance of the
Company's obligations under this Agreement; provided that,
except as provided in this Paragraph and in Paragraph 10
hereof, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel, any
transfer taxes on the New Preferred Stock which it may sell and
the expenses of advertising any offering of the New Preferred
Stock made by the Underwriters;
(k) until the termination of the offering of the New Preferred
Stock, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act;
(l) To obtain the approval of DTC for "book entry" transfer of
the New Preferred Stock and to comply with all of its
agreements set forth in the representation letter of the
Company to DTC relating to such approval; and
(m) To use the proceeds of any offering of New Preferred Stock
as specified in the Prospectus.
7. (a) The Company shall indemnify and hold harmless each
Underwriter and its director, officers and each person, if any,
who controls any Underwriter within the meaning of the Act from
and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which that
Underwriter or director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement or any Prospectus or in any blue sky
application or other document executed by the Company
specifically for that purpose or based upon written information
furnished by the Company (any such application, document or
information is hereinafter referred to as a "Blue Sky
Application") filed in any state or other jurisdiction in order
to qualify any or all of the New Preferred Stock under the
securities laws thereof, or arises out of, or is based upon,
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each
Underwriter, director, officer and controlling person for any
legal and other expenses reasonably incurred by such person in
investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such
loss, claim, damage, liability or action; provided that the
Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, any
Prospectus or any Blue Sky Application in reliance upon and in
conformity with written information about the Underwriters
furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein; and provided further that
as to any Preliminary Prospectus this indemnity agreement shall
not inure to the benefit of any Underwriter or any director or
officer of or person controlling that Underwriter on account of
any loss, claim, damage, liability or action arising from the
sale of New Preferred Stock to any person by that Underwriter
if that Underwriter failed to send or give a copy of any
Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue
statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in such Prospectus, unless
such failure resulted from non-compliance by the Company with
Paragraph 6(b) hereof. For purposes of the second proviso to
the immediately preceding sentence, the term Prospectus shall
not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or
give any supplement or amendment to any document incorporated
by reference in any Preliminary Prospectus or any Prospectus to
any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written
request therefor. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have
to any Underwriter or controlling person.
(b) Each Underwriter, severally, but not jointly, shall
indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and
any person who controls the Company within the meaning of the
Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the
Company or any such director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such
loss, claim, damage, liability or action, arises out of, or is
based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement, any Prospectus or any Blue Sky Application,
or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information about
the Underwriters furnished to the Company by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse
the Company for any legal and other expenses reasonably incurred
by the Company or any such director, officer or controlling person
in investigating or defending or preparing to defend against or
appearing as a third-party witness in connection with any such
loss, claim, damage, liability or action. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any of its directors, officers or
controlling persons.
(c) Promptly after receipt by an indemnified party under
this Paragraph of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under this Paragraph,
notify the indemnifying party in writing of the claim or the
commencement of that action; provided that the failure to notify
the indemnifying party shall not relieve it from any liability
which it may have under this Paragraph 7, except to the extent it
has been prejudiced in any material respect by such failure,
or from any liability which it may have to an indemnified party
otherwise than under this Paragraph. If any such claim or action
shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein, and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Paragraph for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided that the indemnified party shall have the
right to employ one counsel to represent it and its controlling
persons in respect of any claim in respect of which indemnity may
be sought by it against the indemnifying party under this Paragraph
if, in the reasonable judgment of the indemnified party, it is
advisable for it to be represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid
by the indemnifying party.
(d) If the indemnification provided for in this
Paragraph 7 shall for any reason be unavailable to an
indemnified party under Paragraph 7(a) or 7(b) hereof
in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability,
or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and
the Underwriters on the other from the offering of
the New Preferred Stock or (ii) if the allocation
provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions
which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as
any other relevant equitable considerations. The
relative benefits received by the Company on the one
hand and the Underwriters on the other with respect
to such offering shall be deemed to be in the same
proportion as the total net proceeds from the
offering of the New Preferred Stock (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by
the Underwriters with respect to such offering, in
each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or
alleged untrue statement of a material fact or
omission or alleged omission to state a material fact
relates to information supplied by the Company or the
Underwriters, the intent of the parties and their
relative knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree
that it would not be just and equitable if
contributions pursuant to this Paragraph 7(d) were to
be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such
purpose) or by any other method of allocation which
does not take into account the equitable
considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph
7(d) shall be deemed to include, for purposes of this
Paragraph 7(d), any legal or other expenses
reasonably incurred by such indemnified party in
connection with investigating or defending any such
action or claim. Notwithstanding the provisions of
this Paragraph 7(d), no Underwriter shall be required
to contribute any amount in excess of the amount by
which the total price at which the New Preferred
Stock underwritten by it and distributed to the
public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to
contribute as provided in this Paragraph 7(d) are
several in proportion to their respective
underwriting obligations and not joint.
(e) The indemnity agreements contained in this
Paragraph and the representations, warranties and
agreements of the Company in Paragraph 1 and
Paragraph 6 hereof shall survive the delivery of the
New Preferred Stock and shall be in full force and
effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on
behalf of any indemnified party.
8. The obligations of the Underwriters under this Agreement
may be terminated by the Underwriters obligated to purchase a
majority of the New Preferred Stock in their absolute
discretion, by notice given to and received by the Company
prior to the delivery of and payment for the New Preferred
Stock, if, during the period beginning on the date of the Terms
Agreement to and including the Delivery Date, (a) trading in
securities generally on the New York Stock Exchange, Inc., the
American Stock Exchange or the over-the-counter market is
suspended, or minimum prices are established on either the New
York Stock Exchange or the American Stock Exchange, (b) a
banking moratorium is declared by either Federal or New York
State authorities (c) the United States becomes engaged in
material hostilities or there is a material escalation in
hostilities involving the United States or there is a
declaration of a national emergency or war by the United
States, or (d) there shall have been such a material and
substantial change in economic, political or financial
conditions or the effect of international conditions on the
financial markets in the United States shall be so material and
substantial, such as, in the reasonable judgment of the
Underwriters obligated to purchase a majority of the New
Preferred Stock makes it impractical or imprudent to proceed
with the payment for and the delivery of the New Preferred
Stock.
9. The respective obligations of the Underwriters, under the
Agreement with respect to the New Preferred Stock are subject
to the accuracy, on the date of the Terms Agreement and on the
Delivery Date, of the representations and warranties of the
Company contained herein, to performance by the Company of its
obligations hereunder, and to each of the following additional
terms and conditions applicable to the New Preferred Stock:
(a) At or before the Delivery Date, no stop order suspending
the effectiveness of the Registration Statement nor any order
directed to any document incorporated by reference in any
Prospectus shall have been issued and prior to that time no
stop order proceeding shall have been initiated or threatened
by the Commission and no challenge shall have been made to the
accuracy or adequacy of any document incorporated by reference
in any Prospectus; any request of the Commission for inclusion
of additional information in the Registration Statement or any
Prospectus or otherwise shall have been complied with; after
the date of the Terms Agreement, the Company shall not have
filed with the Commission any amendment or supplement to the
Registration statement or any Prospectus (or any document
incorporated by reference therein) without the consent of the
Underwriters.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration
Statement or any Prospectus contains an untrue statement of a
fact which, in the opinion of counsel for the Underwriters, is
material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement and
the New Preferred Stock and the form of the Registration
Statement, each Prospectus (other than financial statements and
other financial data) and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall
be satisfactory in all respects to Cahill Gordon & Reindel,
counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such
matters.
(d) Bryan G. Tabler, Vice President, Secretary and General
Counsel of the Company, shall have furnished to the
Underwriters his opinion addressed to the Underwriter and dated
the Delivery Date, as general counsel of the Company, to the
effect that:
(i) The Company is a duly organized and validly existing
public utility corporation under the laws of the State of
Indiana, has full corporate authority to engage in the business
in which it is engaged in as stated in the Registration
Statement and each Prospectus, has full corporate power and
authority to issue and sell the New Preferred Stock, and is
subject to regulation by the Indiana Utility Regulatory
Commission in matters pertaining, among other things, to the
issue and sale of the New Preferred Stock. The terms
"Registration Statement" and "each Prospectus," as used herein,
have the same meanings as in Paragraph 1(a) of this Agreement;
(ii) The shares of New Preferred Stock have been duly
authorized and issued and are fully paid and nonassessable and
have the rights set forth in the Amended Articles of
Incorporation, as amended, of the Company; the certificates for
the New Preferred Stock are in due and proper form; the holders
of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the New
Preferred Stock;
(iii) The Indiana Utility Regulatory Commission has
issued an appropriate order under date of [ ], 1997 in
Cause No. [ ], with respect to the issue and sale of the
New Preferred Stock; such order is sufficient for such
purpose; the issue and sale of the New Preferred Stock is in
conformity with the terms of such order, and no other
authorization, approval or consent of any governmental body is
legally required for the issue and sale of the New Preferred
Stock by the Company, or for the carrying out of the provisions
of this Agreement (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction);
(iv) The New Preferred Stock conform, as to legal matters,
to the statements' concerning them contained or incorporated by
reference in the Registration Statement and each Prospectus
referred to herein, filed by the Company with the Commission;
(v) The Registration Statement is effective under the
Act, no stop order suspending its effectiveness has been
issued, and, to the knowledge of such counsel, no proceeding
for that purpose is pending or threatened by the Commission;
(vi) No order directed to any document incorporated by
reference in any Prospectus has been issued and to the
knowledge to such counsel, no challenge has been made to the
accuracy or adequacy of any such document;
(vii) The Registration Statement and each Prospectus
(except that no opinion need be expressed as to the financial
statements contained therein), comply as to form in all
material respects with the relevant requirements of the Act
and the Rules and Regulations and the documents incorporated
or deemed to be incorporated by reference in the Prospectus
(except that no opinion need be expressed as to the financial
statements and other financial data contained therein) comply
as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder, and
such counsel has no reason to believe that the Registration
Statement or any Prospectus contains any untrue statements of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(viii) The statements made in the Prospectus under the
caption "Description of the New Preferred Stock` insofar as
they purport to summarize the provisions of documents or
arrangements specifically referred to therein present the
information called for with respect thereto by Form S-3;
(ix) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and
Regulations or which are required to be filed by the Exchange
Act or the rules and regulations thereunder as exhibits to any
documents incorporated by reference in any Prospectus, which
have not been filed as exhibits to the Registration Statement
or to such documents incorporated therein by reference
permitted by the rules and regulations or the Rules and
Regulations of the Commission under the Exchange Act;
(x) The Company holds valid indeterminate permits from
the state of Indiana authorizing it to carry on its utility
business in the city of Indianapolis, Indiana, and adjacent
areas, from which more than 98% of its operating revenues,
excluding sales to other electric utilities, are derived;
(xi) Since the end of its latest fiscal year, the Company
has timely filed all documents and amendments to previously
filed documents required to be filed by it pursuant to
Sections 12, 13, 14 or 15(d) of the Exchange Act;
(xii) Such counsel does not know of any litigation or
any governmental proceeding instituted or threatened against
the Company of a character referred to in Paragraph 1(h) above
other than as disclosed in the Prospectus or in any document
incorporated, or deemed to be incorporated, by reference in the
Prospectus; and
(xiii) This Agreement has been duly authorized, executed
and delivered by the Company, and the provisions thereof do not
conflict with or result in a breach of the Amended Articles of
Incorporation, as amended, of the Company, or of any of the
terms, conditions or provisions of any outstanding agreements,
notes or other instruments under which the Company is
obligated.
(e) The Company shall have furnished to the Underwriters on
the Delivery Date a certificate, dated the Delivery Date, of
its Chairman of the Board, its President or a Vice President
and its Treasurer stating that:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 hereof are true and correct as of the
Delivery Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in
Paragraph 9(a) hereof have been fulfilled;
(ii) They have carefully examined the Registration
Statement and each Prospectus and, in their opinion, (A) as of
the date of each Prospectus, the Registration Statement and
the Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the date of
each Prospectus, no event has occurred which should have been
set forth in a supplement to or amendment of each Prospectus
which has not been set forth in such a supplement or amendment.
(f) The Company shall have furnished to the Underwriters on
the Delivery Date a letter of Deloitte & Touche, addressed to
the Underwriters and dated the Delivery Date, of the type
described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and
covering such specified financial statement items as the
Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are In form and substance satisfactory to
counsel for the Underwriters.
10. If the Company shall fail to tender the New Preferred
Stock for delivery to the Underwriters for any reason permitted
under this Agreement, or if the Underwriters shall decline to
purchase the New Preferred Stock for any reason permitted under
this Agreement, the Company shall reimburse the Underwriters
for the reasonable fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed
purchase of the New Preferred Stock, and upon demand the
Company shall pay the full amount thereof to the Underwriters.
If this Agreement is terminated pursuant to Paragraph 4 hereof
by reason of the default by one or more of the Underwriters,
the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. The Company shall be entitled to act and rely upon any
request, consent, behalf of the notice or agreement by SBC
Warburg Dillon Read Inc., on behalf of the Underwriters. Any
notice by the Company to the Underwriters shall be sufficient
if given in writing or by telegraph addressed to SBC Warburg
Dillon, Read Inc., on behalf of the Underwriters, at 2001 Ross
Avenue, Suite 3950, Dallas, Texas 75202, Attention:
[ ]. Any notice by the Underwriters to the
Company shall be sufficient if given in writing or by telegraph
addressed to the Company at 25 Monument Circle, P.O. Box 1595,
Indianapolis, Indiana 46206-1595, Attention of the [Senior Vice
President, Finance and Information Services].
12. This Agreement shall be binding upon the Underwriters, the
Company, and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of
the directors, officers and the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the
Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 7 hereof shall be deemed to be for the
benefit of directors of the Company, officers of the Company
who have signed the Registration Statement and any person
controlling the Company. Nothing in this Agreement is intended
or shall be construed to give any person, other than the
persons referred to in this Paragraph, any legal or equitable
right, remedy or claim under or in respect of this Agreement or
any provision contained herein.
13. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange, Inc. is open for
trading.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. The Terms Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the
executed counterparts shall together constitute a single
instrument.
16. SBC Warburg Dillon Read Inc., an indirect, wholly owned
subsidiary of Swiss Bank Corporation, is not a bank and is
separate from any affiliated bank, including any U.S. branch or
agency of Swiss Bank Corporation. Because SBC Warburg Dillon
Read Inc. is a separately incorporated entity, it is solely
responsible for its own contractual obligations and
commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or
recommended by SBC Warburg Dillon Read Inc. are not deposits,
are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency, and are not otherwise
an obligation or responsibility of a branch or agency.
A lending affiliate of SBC Warburg Dillon Read Inc. may
have lending relationships with issuers of securities
underwritten or privately placed by SBC Warburg Dillon Read
Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities
underwritten or privately placed by SBC Warburg Dillon Read
Inc. will disclose the existence of any such lending
relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of SBC Warburg Dillon
Read Inc.
Without your prior written approval, the U.S. branches and
agencies of Swiss Bank Corporation will not share with SBC
Warburg Dillon Read Inc. any non-public information concerning
you, and SBC Warburg Dillon Read Inc. will not share any non-
public information received from you with any of such U.S.
branches and agencies of Swiss Bank Corporation.
EXHIBIT 3(a)
AMENDED
ARTICLES OF INCORPORATION
OF
INDIANAPOLIS POWER & LIGHT COMPANY
The undersigned officers of INDIANAPOLIS POWER &
LIGHT COMPANY (hereinafter referred to as the "Company"),
existing pursuant to the provisions of The Indiana
General Corporation Act, as amended (hereinafter referred
to as the "Act"), desiring to give notice of corporate
action effectuating certain amendments of its Amended
Articles of Incorporation by the adoption of new Amended
Articles of Incorporation to supersede and take the place
of its heretofore existing Amended Articles of
Incorporation approved and filed in accordance with the
Act on April 23, 1976, certifying the following facts:
SUBDIVISION A
AMENDED ARTICLES
1. Text of Amended Articles
The exact text of the entire Amended Articles of
Incorporation of the Company (hereinafter referred to as
the "Amended Articles), now is as follows:
AMENDED
ARTICLES OF INCORPORATION*
OF
INDIANAPOLIS POWER & LIGHT COMPANY
ARTICLE 1
Name
The name of the Company is INDIANAPOLIS POWER &
LIGHT COMPANY.
ARTICLE 2
Purposes and Powers
Section 1. Purposes. The purposes for which the
Company is formed are as follows:
* Herein referred to as "Amended Articles".
+ As used herein, refers to The Indiana General
Corporation Act, as amended.
(a) General. To generate, produce, transmit,
distribute, purchase and sell, furnish and supply, or
otherwise dispose of, as a public utility or otherwise,
to the public or to any city, town or community within or
without the State of Indiana, for public or private use,
electricity, heat, light, steam, steam heat, hot water,
power, and any other commodities or services now or
hereafter furnished or supplied by public utilities, for
compensation; to construct, purchase, lease or otherwise
acquire, hold, own, operate, manage or control, either
alone or in conjunction with others, any plant, property,
equipment or facilities of any kind, character and
description whatsoever and wheresoever located, used and
useful or to be used and useful for or in connection with
the foregoing purposes; and to conduct, engage in and
carry on any manufacturing, merchandising and mercantile
business, and any other business whatsoever, not
prohibited by law.
(b) Ancillary Purposes. To do everything necessary,
proper, advisable or convenient for the accomplishment of
the purposes specified in subsection (a) of this Section;
to render services and to engage in allied and incidental
lines of business in connection therewith, and to do all
other things not forbidden by the Act, + by other law, or
by these Amended Articles.
Section 2. Powers. The Company, subject to any
limitations or restrictions imposed by the Act, other law
or by these Amended Articles, shall have the following
general rights, privileges and powers:
(a) Personal Property. To acquire (by purchase,
exchange, lease, hire or otherwise), hold, own, operate,
manage, control, use, lease, mortgage, pledge, give as
security, sell, convey, exchange or otherwise deal in and
dispose of, either alone or in conjunction with others,
personal property, tangible or intangible, and
commodities of every kind, character and description
whatsoever and any interests therein.
(b) Real Estate. To acquire (by purchase, exchange,
lease, hire or otherwise), hold, own, operate, manage,
control, use, lease, mortgage, sell, convey, exchange or
otherwise deal in and dispose of, either alone or in
conjunction with others, real estate of every kind,
character and description whatsoever and wheresoever
located, and any interests therein, and any improvements
thereon or appurtenances thereto.
(c) Eminent Domain. To have and enjoy the right of
eminent domain to the full extent provided by law, and in
the exercise of such power to take, acquire, condemn and
appropriate lands, and any interests therein, including,
without limitation, easements, rights-of-way, grants,
concessions, and any other property or rights, for its
corporate purposes, together with all accommodations and
privileges necessary to accomplish the use or uses for
which the same are taken, all in the manner and upon the
conditions prescribed by the laws of the state or states
in which such power of eminent domain may be exercised
from time to time by the Company.
(d) Permits and Concessions. To acquire (by grant,
purchase, lease or otherwise) franchises, permits,
licenses, certificates of convenience and necessity,
certificates of authority, concessions, grants, rights,
privileges and other authorizations, of every kind and
nature; to hold, own, use, develop, operate under, lease,
mortgage, pledge, sell, convey, exchange or otherwise
deal with and dispose of the same to the extent permitted
by law.
(e) Acquisition of Assets, Properties, Plants,
Business, and Good Will. To acquire (by purchase,
exchange, lease, hire or otherwise) so far as may be
permitted by law, either alone or in conjunction with
others, all or any part of the assets, properties,
plants, business, or good will of any person, firm,
association, partnership, corporation, or other entities,
either domestic or foreign; to pay for the same in cash,
shares of capital stock, or obligations of the Company or
otherwise; to assume in connection therewith any
liabilities of any such transferor; and to hold, own,
operate, manage, control, use, develop, and to lease,
mortgage, sell, convey, exchange or otherwise deal in and
dispose of, the whole, or any part, of the assets,
properties, plants, business or good will so acquired.
(f) Securities. To purchase, take, receive,
subscribe for, or otherwise acquire, guarantee, own,
hold, vote, use, employ, sell, mortgage, lend, pledge or
otherwise deal in and dispose of, shares or other
interests in, or obligations of, other domestic or
foreign corporations, associations, partnerships,
individuals, or other entities, for whatever purpose or
purposes organized or operating, including direct or
indirect obligations or other securities of the United
States of America or of any other government, state,
territory, governmental district or municipality or of
any instrumentality thereof.
(g) Partnership Arrangements. To enter into any
lawful arrangement for sharing profits, union of
interest, reciprocal association, or cooperative
association or partnership with any one or more domestic
or foreign corporations, associations, partnerships,
individuals or other entities, and to enter into any
general or limited partnership.
(h) Agency. To act as agent of or representative
for any one or more domestic or foreign corporations,
associations, partnerships, individuals, or other
entities.
(i) To Raise Funds. To borrow or raise monies from
time to time, without limit as to amount; to execute,
accept, endorse, and deliver, as evidence of such
borrowing, all kinds of securities, including, but
without limiting the generality thereof, promissory
notes, drafts, bills of exchange, bonds, debentures, and
other negotiable or non-negotiable instruments and
evidences of indebtedness; and to secure the payment and
performance of the obligations thereunder by mortgage on,
pledge of, or other security interest in the whole or any
part of the assets, properties, plants, business,
franchises and other operating rights, or good will of
the Company, whether at the time owned or thereafter
acquired.
(j) To Loan and Invest Funds. To lend money for its
corporate purposes, invest and reinvest its funds from
time to time, and take and hold any property as security
for the payment of funds so loaned or invested; and to
lend money to its employees, but to make no advancement
on account of services to be performed in the future or
any loan of money or property to any officer or director
of the Company.
(k) Contracts. To enter into, perform, terminate
and rescind contracts and other agreements.
(l) Guaranties. To make any guaranty respecting the
shares, dividends, securities, indebtedness, interest,
contracts or other obligations created by any one or more
domestic or foreign corporations, associations,
partnerships, individuals, or other entities.
(m) Dealing in Its Own Shares. To purchase, take,
receive or otherwise acquire, hold, own, sell, pledge,
transfer or otherwise dispose of its own shares; and
purchases of its own shares may be made, directly or
indirectly, out of its unreserved and unrestricted earned
surplus, and, to the extent permitted by the Act, out of
its capital surplus.
(n) Donations. To make contributions out of the
gross income of the Company to such entities, and for any
one or more of such purposes, including the public
welfare, or for charitable, scientific, or educational
purposes, as the Board of Directors may reasonably
believe will constitute such contributions deductions
from such gross income in computing the net income of the
Company subject to tax pursuant to the provisions of the
Internal Revenue Code as amended from time to time.
(o) Capacity to Act. To have the capacity to act
possessed by natural persons, but the Company shall have
authority to perform only such acts as are necessary,
convenient or expedient to accomplish the purposes for
which it is formed and such as are not repugnant to law.
(p) Officers, Agents, and Employees. To elect
officers, to appoint agents and to hire employees; to
define their duties; to determine and fix their
compensation; to establish and to pay for life,
disability, hospitalization, surgical benefits and other
insurance plans, pension plans, profit-sharing plans,
stock bonus plans, stock option plans, thrift plans, and
other incentive plans, for any or all of its directors,
officers and employees.
(q) Indemnification. To indemnify any director or
officer, or former director or officer, of the Company,
or any person who may serve at its request as a director
or officer of another corporation in which it owns shares
or of which it is a creditor, against expenses actually
and reasonably incurred by him in connection with the
defense of any action, suit or proceeding, civil or
criminal, in which he is made a party by reason of being
or having been such director or officer, or against
judgments, fines, penalties, court costs and attorney's
fees, or reasonable amounts paid by him in settlement in
connection with any such action, suit or proceeding, if
he has acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests
of the Company, or, in respect to any criminal action or
proceeding, if he had no reasonable cause to believe his
conduct was unlawful; provided that no such director or
officer shall be so indemnified in relation to matters as
to which he shall be adjudged in any such action, suit or
proceeding to be liable for negligence or misconduct in
the performance of duty.
The termination of any action, suit or proceeding by
settlement, or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption
that the director or officer involved therein did not act
in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests
of the Company, or, in respect to any criminal action or
proceeding, that he had reasonable cause to believe his
conduct was unlawful.
Any indemnification shall be made by the Company
only as authorized in a specific case upon the
determination that indemnification of the director or
officer is proper in the circumstances because he has met
the applicable standard of conduct set forth in this
subsection (q). Such determination shall be made by he
Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such
action, suit or proceeding, or if such a quorum is not
obtainable, or if a quorum of disinterested directors so
directs, by independent legal counsel in a written
opinion.
Any such indemnification of a director or officer
shall not be deemed exclusive of any of the rights to
which he may be entitled as a matter of law or under any
other provision of these Amended Articles, or any
resolution, or other authorization heretofore or
hereafter adopted, after notice, by a majority vote of
all the voting shares of the Company then issued and
outstanding.
(r) Statutory Powers. To have and to exercise all
the general rights, privileges and powers conferred by
the laws of the State of Indiana upon corporations formed
under the Act, and all amendments made thereto from time
to time, and all applicable subsequent laws of the State
of Indiana.
(s) Ancillary Powers. To do all acts and things
necessary, convenient or expedient to carry out the
purposes for which the Company is organized.
Section 3. Construction of Powers as Purposes. The
powers enumerated in Section 2 of this Article shall be
construed as purposes as well as powers, and the matters
expressed in each clause thereof shall be in no wise
limited by reference to, or inference from, the terms of
any other clause, each of such clauses being regarded as
creating independent powers and purposes. The
enumeration of specific additional powers in the clauses
of Section 2 shall not be construed as limiting or
restricting in any manner either the meaning of general
terms used in this Article or the scope of the powers of
the Company created thereby; nor shall the expression of
one thing be deemed to exclude another not expressed
although it be of like nature.
Section 4. Carrying Out of Purposes and Exercise of
Powers in Any Jurisdiction. The Company may carry out
its purposes, conduct its business, and exercise its
powers in any state, territory, district or possession of
the United States of America, or in any foreign country,
to the extent that such purposes and powers are not
forbidden by the laws of such state, territory, district
or possession of the United States of America, or by such
foreign country; and, in the case of any state,
territory, district or possession of the United States of
America, or any foreign country, in which one or more of
such purposes or powers are forbidden by law, the Company
may limit the purpose or purposes which it proposes to
carry on or the powers it proposes to exercise in such
state, territory, district or possession of the United
States of America, or foreign country, to such purpose or
purposes or powers as are not forbidden by the law
thereof in any application to do business in such state,
territory, district or possession of the United States of
America, or foreign country.
Section 5. Limiting Provision. Nothing in these
Amended Articles shall be construed to authorize the
conduct by the Company of rural loan and savings
associations, credit unions, a banking, railroad,
insurance, surety, trust, safe deposit, mortgage
guarantee, or building and loan business, or to authorize
the Company to carry on the business of receiving
deposits of money, bullion, or foreign coins, or issuing
bills, notes or other evidences of debt for circulation
as money.
ARTICLE 3
Term of Existence
The period during which the Company shall continue
is perpetual.
ARTICLE 4
Principal Office and Resident Agent
The post office address of the principal office of
the Company is:
One Monument Circle
Indianapolis, Marion County, Indiana
and the name and post office address of its Resident
Agent is:
Bryan G. Tabler
One Monument Circle
Indianapolis, Marion County, Indiana.
ARTICLE 5
Number of Shares
The total number of shares which the Company shall
have authority to issue is twenty-five million
(25,000,000) shares, consisting of two million
(2,000,000) shares of the par value of one hundred
dollars ($100) per share, three million (3,000,000)
shares with a par value established by the Board of
Directors pursuant to Article 6, Subdivision D, of these
Amended Articles, and twenty million (20,000,000) shares
without par value.
ARTICLE 6
Terms of Shares
The designation of the different classes of shares,
the number and the par value, if any, of the shares of
each class, and a statement of the relative rights,
preferences, limitations and restrictions of each class,
including the authority of the Board of Directors with
respect thereto, are as follows:
A. Preferred Stock
Section 1. Designation of Class, Number and Par
Value of Shares. The two million (2,000,000) shares of
the par value of $100 per share shall constitute a single
class designated as the "Cumulative Preferred Stock"
(herein referred to as the "Preferred Stock").
Section 2. Preferred Stock Issuable in Series. The
Preferred Stock may be issued from time to time in one or
more series, with such distinctive serial designations as
shall be stated and expressed in the resolution or
resolutions providing for the issue of such stock from
time to time adopted by the Board of Directors. All
shares of the Preferred Stock of any one series shall be
identical with each other in all respects except, if so
determined by the Board of Directors, as to the dates
from which dividends thereon shall be cumulative; and all
shares of the Preferred Stock shall be of equal rank with
each other, regardless of series, and shall be identical
with each other in all respects except as herein
provided.
Section 3. Authority of Board of Directors. In the
resolution or resolutions providing for the issue of
shares of each particular series of the Preferred Stock,
the Board of Directors is hereby expressly authorized to
fix and determine, so far as not inconsistent with the
provisions of these Amended Articles, and to the full
extent now or hereafter permitted by the laws of the
State of Indiana in respect of the matters set forth in
the following subparagraphs (a) to (f), inclusive:
(a) Dividends. The annual dividend rate for such
series.
(b) Redemption. The redemption price or prices per
share of such series.
(c) Liquidation. The amount per share which the
shares of such series shall be entitled to receive in the
event of a voluntary liquidation, dissolution, or winding
up of the Company.
(d) Sinking Fund. The terms and amount of any
sinking fund provided for the purchase or redemption of
the shares of such series.
(e) Conversion. The rights, if any, of the holders
of shares of such series to convert such shares into
shares of Common Stock or other junior stock of the
Company, with any provisions for the subsequent
adjustment of such conversion rights.
(f) Miscellaneous. The maximum number of shares of
such series issuable.
Section 4. General Provisions Applicable to
Preferred Stock. The following provisions shall apply to
all the Preferred Stock of the Company irrespective of
series:
(a) Dividends. The Preferred Stock of each series
shall be entitled, in preference to the Common Stock, to
receive dividends at, but not exceeding, the dividend
rate fixed for such series and expressed in the
certificates therefor, payable quarter-yearly, when and
as declared by the Board of Directors, out of the surplus
earnings or net profits or surplus paid in in cash of the
Company, on the first days of January, April, July and
October in each year. Such dividends shall be cumulative
from and after the date of issue in the case of the first
100,000 shares of Preferred Stock issued by the Company,
and, in the case of all additional shares of Preferred
Stock issued, such dividends shall be cumulative from the
quarterly dividend payment date on or next preceding the
date on which they shall have been issued, except that,
if so determined by the Board of Directors, another date
may be fixed therefor.
If, at the time of the issue of additional shares of
Preferred Stock, dividends upon the shares of Preferred
Stock at the time outstanding shall not then have been
paid or declared and set apart for payment at the fixed
dividend rate from the date or dates after which
dividends on said shares became cumulative to the
beginning of the then current dividend period, no
dividend shall be declared or paid on the additional
shares of Preferred Stock issued at such date until all
such dividends in arrears shall have been paid or
declared and set apart for payment as aforesaid and none
of the provisions hereof shall be deemed to prevent the
declaration and payment of such dividends in arrears
without a declaration or payment of dividends on the
additional shares so issued.
If at any time the payment of dividends to any
particular holder of record of outstanding shares of
Preferred Stock would require the payment of a sum which
would include a fraction of a cent, then the Company may
pay to such shareholder of record the next higher
integral amount in cents.
When dividends upon all shares of Preferred Stock
then outstanding at the fixed dividend rate from the date
or dates after which dividends on said shares became
cumulative to the end of the current dividend period
shall have been paid or declared and set apart for
payment, the Board of Directors in its discretion may
declare dividends on the Common Stock of the Company out
of the surplus earnings or net profits or surplus paid in
in cash of the Company, and no holders of any shares of
Preferred Stock, as such, shall be entitled to share
therein.
Unless dividends on all outstanding shares of
Preferred Stock, at the fixed dividend rate form the date
or dates after which dividends on said shares became
cumulative to the end of the current dividend period
shall have been paid or declared and set apart for
payment, no dividends shall be paid or declared and no
other distribution shall be made on the Common Stock, and
no Common Stock shall be purchased or otherwise acquired
for value by the Company.
(b) Liquidation. Upon any voluntary liquidation,
dissolution or winding up of the Company, the Preferred
Stock of each series shall be entitled, before any
distribution shall be made to the holders of the Common
Stock, to be paid the full preferential amount fixed by
the Board of Directors for such series as herein
authorized, and, in the event of involuntary liquidation,
dissolution or winding up of the Company, the Preferred
Stock of each series shall be entitled to be paid the sum
of $100 per share plus an amount which shall be equal to
the dividends accrued and unpaid thereon; but the holders
of the Preferred Stock shall be entitled to no further
participation in such distribution; and the holders of
the Common Stock shall be entitled, to the exclusion of
the holders of the Preferred Stock, to share ratably in
all assets of the Company remaining after payment to the
holders of the Preferred Stock of the full preferential
amounts aforesaid. If upon such liquidation, dissolution
or winding up of the Company, the assets distributable
among the holders of the Preferred Stock shall be
insufficient to permit the payment in full to such
holders of the preferential amounts aforesaid, then the
entire assets of the Company to be distributed shall be
distributed among the holders of the Preferred Stock,
then outstanding, ratably in proportion to the full
preferential amounts to which they are respectively
entitled.
As used herein, the expression "dividends accrued or
in arrears" means, in respect of each share of the
Preferred Stock, an amount equal to simple interest upon
the sum of $100 per share at the annual rate equal to the
dividend rate fixed for such series from the date from
which dividends thereon commenced to accrue to the date
as of which the computation is to be made, less the
aggregate amount (without interest thereon) of all
dividends theretofore paid or declared and set apart for
payment in respect thereof.
Nothing in this subsection (b) shall be deemed to
prevent the redemption of Preferred Stock in any manner
permitted by the next succeeding subsection (c).
A consolidation or merger of the Company with any
other corporation or corporations shall not be regarded
as a liquidation, dissolution or winding up of the
Company, within the meaning of this subsection (b),
providing that such consolidation or merger does not
materially impair the rights and preferences of the
Preferred Stock.
(c) Redemption. The Company, by action of its
Board of Directors, may redeem the whole or any part of
the Preferred Stock or of any series thereof, at any time
or from time to time, at a price for each series thereof
equal to the par value thereof, plus a premium of such
additional amount per share, if any, as shall have been
fixed as payable in case of redemption in respect of such
series and expressed in the certificates therefor,
together with the amount of all dividends accrued or in
arrears thereon to the date fixed for redemption. At
least thirty (30) days and not more than ninety (90) days
prior to the date fixed for such redemption, notice of
such redemption shall be mailed to the holders of record
of the shares of the Preferred Stock so to be redeemed,
at their respective addresses as the same shall appear on
the books of the Company.
In case of the redemption of a part only of the
Preferred Stock at the time outstanding, the Company
shall select by lot, or in such other manner as the Board
of Directors may determine, the shares so to be redeemed.
The Board of Directors shall have full power and
authority, subject to the limitations and provisions
herein contained, to prescribe the manner in which, and
the terms and conditions upon which, the shares of the
Preferred Stock shall be redeemed from time to time.
If such notice of redemption shall have been duly
given as hereinbefore provided and if on or before the
redemption date specified in such notice all funds
necessary for such redemption shall have been set aside
by the Company, separate and apart from its other funds,
in trust for the account of the holders of the shares to
be redeemed, so as to be and continue to be available
therefor, then, notwithstanding that any certificate for
such shares so called for redemption shall not have been
surrendered for cancellation, from and after the date
fixed for redemption, the shares represented thereby
shall no longer be deemed outstanding, the right to
receive dividends thereon shall cease to accrue and all
rights with respect to such shares so called for
redemption shall forthwith on such redemption date cease
and terminate, except only the right of the holders
thereof to receive, out of the funds so set aside in
trust, the amount payable upon redemption thereof,
without interest; provided, however, that the Company
may, after giving notice of any such redemption as
hereinbefore provided or after giving to the bank or
trust company hereinafter referred to irrevocable
authorization to give such notice and, at any time prior
to the redemption date specified in such notice, deposit
in trust, for the account of the holders of the shares to
be redeemed, funds necessary for such redemption with a
bank or trust company in good standing, organized under
the laws of the United States of America or of the State
of New York, doing business in the Borough of Manhattan,
the City of New York, or of the State of Illinois, doing
business in the City of Chicago, having capital, surplus
and undivided profits aggregating at least $2,000,000,
designated in such notice of redemption, and upon such
deposit in trust, all shares with respect to which such
deposit shall have been made shall no longer be deemed to
be outstanding, and all rights with respect to such
shares shall forthwith cease and terminate, except only
the right of the holders thereof to receive, out of the
funds so deposited in trust, from and after the date of
such deposit, the amount payable upon the redemption
thereof, without interest.
Nothing herein contained shall limit any legal right
of the Company to purchase or otherwise acquire any
shares of the Preferred Stock.
(d) Limitation Upon Issue of Parity Preferred Stock
or Merger or Consolidation. So long as any shares of the
Preferred Stock are outstanding, the Company shall not,
without the consent (given by vote at a meeting called
for that purpose) of the holders of at least a majority
of the total number of shares of the Preferred Stock then
outstanding;
(i) create or authority any
class of stock ranking on a parity
with the Preferred Stock, or create
or authorize any obligation or
security convertible into shares of
stock of any such class; or
(ii) merge or consolidate with
or into any other corporation or
corporations.
(e) Limitation Upon Issue of Prior Preferred Stock
or Amendment of Preferred Stock. So long as any shares
of the Preferred Stock are outstanding, the Company shall
not, without the consent (given by vote at a meeting
called for that purpose) of the holders of at least two-
thirds of the total number of shares of the Preferred
Stock then outstanding:
(i) create or authorize any
class of stock ranking prior to the
Preferred Stock, or create or
authorize any obligation or security
convertible into shares of stock or
any such class; or
(ii) amend, alter, change or
repeal any of the express terms of
the Preferred Stock then outstanding
in a manner prejudicial to the holder
thereof.
(f) Net Income Limitation Upon Issue of Preferred
Stock. So long as any shares of the Preferred Stock are
outstanding, the Company shall not, without the consent
(given by vote at a meeting called for that purpose) of
the holders of at least a majority of the total number of
shares of Preferred Stock then outstanding, issue any
shares of Preferred Stock in addition to the first
100,000 shares of the Preferred Stock issued by the
Company, unless the net income of the Company applicable
to the payment of interest on the funded debt of the
company and the dividends on the Preferred Stock for any
twelve consecutive calendar months within the fifteen
calendar months immediately preceding the calendar month
within which such additional shares of Preferred Stock
shall be issued, shall have been at least one and one-
half times the aggregate of the interest on the funded
debt of the Company for a twelve months' period and the
dividend requirements for a twelve months' period upon
the entire amount of the Preferred Stock then outstanding
and such additional shares of the Preferred Stock
proposed to be issued.
B. Common Stock
Section 1. Designation of Class, Number and Par
Value of Shares. The twenty million (20,000,000) shares
without par value shall constitute a single class
designated as the "Common Stock" (herein referred to as
the "Common Stock").
Section 2. General Provisions Applicable to Common
Stock. The following provisions shall apply to all
shares of the Common Stock of the Company:
(a) Preferences and Equality of Shares. The shares
of the Common Stock shall not be entitled to any
preferences and each share of Common Stock shall be equal
to every other share of such stock in every respect.
(b) Dividends. When dividends upon all shares of
Preferred Stock then outstanding at the fixed dividend
rate from the date or dates after which dividends on said
shares became cumulative to the end of the current
dividend period shall have been paid or declared and set
apart for payment, the Board of Directors in its
discretion may declare dividends on the Common Stock of
the Company out of the surplus earnings or net profits or
surplus paid in in cash of the Company, and no holders of
any shares of Preferred Stock as such, shall be entitled
to share therein.
Unless dividends on all outstanding shares of
Preferred Stock, at the fixed dividend rate from the date
or dates after which dividends on said shares became
cumulative to the end of the current dividend period
shall have been paid or declared and set apart for
payment, no dividends shall be paid or declared and no
other distribution shall be made on the Common Stock, and
no Common Stock shall be purchased or otherwise acquired
for value by the Company.
(c) Liquidation. Upon any liquidation, dissolution
or winding up of the Company, the holders of the Common
Stock shall be entitled, to the exclusion of the holders
of the Preferred Stock, to share ratably in all assets
of the Company remaining after payment to the holders of
the Preferred Stock of the full preferential amounts
referred to in Article 6, A, Section 4, subsection (b).
C. Preferred and Common Stock
Section 1. Issue and Consideration for Shares. The
authorized shares of the Company of any class may be
issued, sold or otherwise disposed of by the Company for
such amount of consideration, in whole or in part, either
in cash, property, services or otherwise, whether less
than, equal to, or in excess of the par value, if any, of
such shares, and upon such other terms and conditions and
to such persons, firms, corporations or other legal
entities, as may be determined from time to time by the
Board of Directors; and such shares, if Common Stock, may
be issued as dividends on, or to effect a split-up or
division of, the outstanding Common Stock of the Company,
upon such terms and conditions as the Board of Directors
may by resolution fix and determine, from time to time;
and when so issued, sold or otherwise disposed of, and
the consideration specified therefor has been received by
the Company, such shares shall be deemed fully paid and
non-assessable.
Section 2. Registered Owners. To the extent
permitted by law, the Company shall be entitled to treat
the person in whose name any share is registered on the
books of the Company as the owner thereof, and shall not
be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person,
whether or not the Company shall have notice thereof.
Section 3. Preemptive Rights. No holder of any
shares of the Company shall have any preemptive right to
purchase or subscribe to any shares of any class of the
Company, whether now or hereafter authorized, or any
bonds, debentures or other securities convertible into or
exchangeable for shares of the Company, except such
rights, if any, as the Board of Directors in its
discretion may from time to time grant to such holder.
D. Variable Class Preferred Stock
Section 1. Designation of Class, Number and Par
Value of Shares. Three million (3,000,000) shares shall
constitute a single class designated as the "Variable
Class Preferred Stock" having the par value established
by the Board of Directors in accordance with Section 3 of
this Subdivision D (herein referred to as "Variable Class
Preferred").
Section 2. Variable Class Preferred Issuable in
Series. The Variable Class Preferred may be issued from
time to time in one or more series.
Section 3. Authority of the Board of Directors.
The Board of Directors is vested with authority to
determine and state the par value, if any, and the
designations and relative preferences, limitations,
voting rights, if any, and other rights of each such
series of the Variable Class Preferred, subject to the
limitations set forth in Article 6, Subdivision A,
Section 4(e) of these Amended Articles. Before the
issuance of any shares of such series, an amendment or
amendments to these Amended Articles determining the
terms of each such series shall be adopted and filed in
accordance with the laws of the State of Indiana. All
shares of Variable Class Preferred of the same series
shall be identical with each other in all respects.
ARTICLE 7
Voting Rights of Shares
Section 1. General Voting Rights. Every holder of
the Preferred Stock shall have two votes for each share
of stock held by him, and every holder of the Common
Stock shall have one vote for each share of Stock held by
him, for the election of directors and upon all other
matters, except as otherwise provided by these Amended
Articles.
Section 2. Voting Rights in Event of Preferred
Stock Dividend Default. If and when dividends payable on
the Preferred Stock shall be in default in an amount
equivalent to four (4) full quarter-yearly dividends on
all shares of Preferred Stock then outstanding, the
holders of all shares of the Preferred Stock, voting
separately as one class, shall be entitled to elect, at
annual meetings of shareholders for the election of
directors until such default shall have been remedied,
the smallest number of directors necessary to constitute
a majority of the full Board of Directors, and the
holders of the Common Stock, voting separately as a
class, shall be entitled to elect the remaining directors
of the Company.
If and when all dividends then in default on the
Preferred Stock then outstanding shall be paid (and such
dividends shall be declared and paid out of any funds
legally available therefor as soon as reasonably
practicable), the Preferred Stock shall thereupon be
divested of any special right with respect to the
election of directors provided in the immediately
preceding paragraph hereof, and the voting power of the
Preferred Stock and the Common Stock shall revert to the
status existing before the occurrence of such default;
but always subject to the same provisions for vesting
such special rights in the Preferred Stock in case of
further like default or defaults in dividends thereon.
Whenever the holders of the Preferred Stock, as a
class, become entitled to elect directors of the Company,
as herein provided, and a vacancy shall occur among such
directors, such vacancy shall be filled by the vote of a
majority of the remaining directors elected by the
holders of the Preferred Stock; and in like manner
whenever the holders of the Common Stock, as a class,
become entitled to elect directors of the Company, as
herein provided, and a vacancy shall occur among such
directors, such vacancy shall be filled by the vote of a
majority of the remaining directors elected by the
holders of the Common Stock. In all other cases, any
vacancy occurring among the directors shall be filled by
the vote of a majority of the remaining directors.
ARTICLE 8
Stated Capital
The amount of stated capital of the Company at the
time of filing of these Amended Articles is at least
$100,000,000.
ARTICLE 9
Number and Qualifications of Directors
Section 1. Number. The number of directors of the
Company shall be not less than three, and the exact
number of directors shall be specified, from time to
time, in the by-laws. Subject to this limitation, the
number of directors may be increased or decreased from
time to time by amendment to the by-laws, but no decrease
shall have the effect of shortening the term of any
incumbent director. If and whenever the by-laws do not
contain a provision specifying the number of directors,
the number shall be eleven.
Section 2. Qualifications. Directors need not be
shareholders of the Company. A majority of the directors
at any time shall be citizens of the United States of
America and bona fide residents and citizens of the State
of Indiana.
ARTICLE 10
Names, Addresses and Citizenship of Directors
Section 1. Names and Post Office Addresses. The
names and post office addresses of the members of the
Board of Directors of the Company holding office at the
time of the adoption of these Amended Articles are as
follows:
Name Address
Charles A. Barnes P. O. Box 706 Indianapolis Indiana
Thomas W. Binford One Indiana Square Indianapolis Indiana
Harriet H. Capehart 445 Pine Drive Indianapolis Indiana
Raymond E. Crandall 740 S. Alabama Street Indianapolis Indiana
Otto N. Frenzel, III One Merchants Plaza Indianapolis Indiana
Louis A. Highmark 11 S. Meridian St. Indianapolis Indiana
Ralph W. Husted 25 Monument Circle Indianapolis Indiana
Frank E. McKinney, Jr. 101 Monument Circle Indianapolis Indiana
John D. Phelan 500 N. Meridian Street Indianapolis Indiana
Alfred J. Stokely 941 N. Meridian Street Indianapolis Indiana
Joseph T. Taylor 1219 W. Michigan St. Indianapolis Indiana
Zane G. Todd 25 Monument Circle Indianapolis Indiana
Carl B. Vance 25 Monument Circle Indianapolis Indiana
Section 2. Citizenship. All such directors are
citizens of the United States of America and a majority
thereof are bona fide residents and citizens of the State
of Indiana.
ARTICLE 11
President and Secretary
The name and address of the President of the Company
is Zane G. Todd, 25 Monument Circle, Indianapolis, Marion
County, Indiana, and the name and address of its
Secretary if Marcus E. Woods, 25 Monument Circle,
Indianapolis, Marion County, Indiana.
ARTICLE 12
Provisions for Regulations of Business and
Conduct of Affairs of Company
Section 1. Meetings of Shareholders. Meetings of
the shareholders of the Company shall be held at such
place, within or without the State of Indiana, as may be
specified from time to time in the respective notices, or
waivers of notice, thereof, or by the by-laws or by
resolution of the shareholders or the Board of Directors.
Any action required or permitted to be taken at any
meeting of the shareholders may be taken without a
meeting if, prior to such action, a written consent
thereto is signed by all of the shareholders entitled to
vote with respect to the subject matter thereof, and such
written consent is filed with the minutes of the
proceedings of the shareholders.
Section 2. Meetings of Directors. Meetings of the
Board of Directors of the Company, regular or special,
shall be held at such place, within or without the State
of Indiana, as may be specified from time to time in the
respective notices, or waivers of notice, thereof, or by
the by-laws. Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if,
prior to such action, a written consent is filed with the
minutes of the proceedings of such Board or committee.
Section 3. By-laws. The Board of Directors of the
Company shall have power, without the assent or vote of
the shareholders, to make, alter, amend or repeal the by-
laws of the Company, but the affirmative vote of a number
of directors equal to a majority of the number who would
constitute the full Board of Directors at the time of
such action shall be necessary to take any action for the
making, alteration, amendment or repeal of the by-laws.
Section 4. Executive Committee. If the by-laws of
the Company, for the time being in force, so provide, the
Board of Directors may, by resolution adopted by a
majority of the actual number of directors elected and
qualified, from time to time, designate two or more of
its members to constitute an executive committee, and one
or more other committees; each of which committees, to
the extent provided in the resolution or by-laws and not
otherwise limited by the provisions of the Act, shall
have and exercise all of the authority of the Board of
Directors, and shall have power to authorize the
execution of, and affixation of the seal of the Company
to, all papers or documents which may require it.
Section 5. Places of Keeping of Books of Account,
etc. Subject to the limitations existing by virtue of
the laws of the State of Indiana, the books of account,
records, documents and papers of the Company may be kept
at any place or places within or without the State of
Indiana. Rules governing the place or places where the
books of account, records, documents and papers of the
Company are to be kept may be made from time to time by
the by-laws of the Company.
Section 6. Reliance by Directors on Books of
Account, etc. Each director of the Company shall be
fully protected in relying in good faith upon the books
of account of the Company or statements prepared by any
of its officers and employees as to the value and amount
of the assets, liabilities and net income of the Company,
or any of such items; or in relying in good faith upon
any other information pertinent to the existence and
amount of surplus or other funds from which dividends
might properly be declared and paid.
Section 7. Provisions for Working Capital. The
Board of Directors of the Company shall have power, from
time to time, to fix and determine and to vary the amount
to be reserved as working capital of the Company and,
before the payment of any dividends, it may set aside out
of the net income of the Company such sum or sums as it
may from time to time in its absolute discretion
determine to be proper whether as a reserve fund to meet
contingencies or for the equalizing of dividends, or for
repairing or maintaining any property of the Company, or
for an addition to corporate surplus, or for any
corporate purposes that the Board of Directors shall
think conducive to the best interest of the Company,
subject only to such limitations as the by-laws of the
Company may impose from time to time.
Section 8. Interest of Directors in Contracts. A
director of this Company shall not in the absence of
fraud be disqualified by his office from dealing or
contracting with this Company either as a vendor,
purchaser or otherwise, nor in the absence of fraud shall
any transaction or contract of this Company be void or
voidable or affected by reason of the fact that any
director, or any firm of which any director is a member,
or any corporation of which any director is an officer,
director or shareholder, is in any way interested in such
transaction or contract, provided that at the meeting of
the Board of Directors or of a committee thereof having
authority in the premises, authorizing or confirming said
contract or transaction, the interest of such director,
firm or corporation is disclosed or made known and there
shall be present a quorum of the Board of Directors or of
the directors constituting such committee, and such
contract or transaction shall be approved by a majority
of such quorum, which majority shall consist of directors
not so interested or connected. Nor shall any director
be liable to account to this Company for any profit
realized by him from or through any such transaction or
contract of this Company ratified or approved as
aforesaid, by reason of the fact that he or any firm of
which he is a member, or any corporation of which he is a
shareholder, director or officer, was interested in such
transaction or contract. Directors so interested may be
counted when present at meetings of the Board of
Directors or of such committee for the purpose of
determining the existence of a quorum. Any contract,
transaction or act of this Company or of the Board of
Directors or of any committee thereof which shall be
ratified by a majority in interest of a quorum of the
shareholders having voting power at any annual meeting or
any special meeting called for such purpose, shall be as
valid and as binding as though ratified by every
shareholder of this Company.
Section 9. Indemnification of Directors and
Officers. The Company may indemnify any director or
officer, or former director or officer, of the Company,
or any person who may serve at its request as a director
or officer of another corporation in which it owns shares
or of which it is a creditor, against expenses actually
and reasonably incurred by him in connection with the
defense of any action, suit or proceeding, civil or
criminal, in which he is made a party by reason of being
or having been such director or officer, or against
judgments, fines, penalties, court costs and attorney's
fees, or reasonable amounts paid by him in settlement in
connection with any such action, suit or proceeding, if
he has acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests
of the Company, or, in respect to any criminal action or
proceeding, if he had no reasonable cause to believe his
conduct was unlawful; provided that no such director or
officer shall be so indemnified in relation to matters as
to which he shall be adjudged in any such action, suit or
proceeding to be liable for negligence or misconduct in
the performance of duty.
The termination of any action, suit or proceeding by
settlement, or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption
that the director or officer involved therein did not act
in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests
of the Company, or, in respect to any criminal action or
proceeding, that he had reasonable cause to believe his
conduct was unlawful.
Any indemnification shall be made by the Company
only as authorized in a specific case upon the
determination that indemnification of the director or
officer is proper in the circumstances because he has met
the applicable standard of conduct set forth in this
section. Such determination shall be made by the Board
of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or if such a quorum is not obtainable, or if
a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion.
Any such indemnification of a director or officer
shall not be deemed exclusive of any other rights to
which he may be entitled as a matter of law or under any
other provision of these Amended Articles, or any
resolution, or other authorization heretofore or
hereafter adopted, after notice, by a majority vote of
all the voting shares of the Company then issued and
outstanding.
Section 10. Additional Power of Directors. In
addition to the powers and authorities hereinabove or by
statute expressly conferred, the Board of Directors is
hereby authorized to exercise all such powers and do all
such acts and things as may be exercised or done by a
corporation organized and existing under the provisions
of the Act.
Section 11. Direction of Purposes and Exercise of
Powers by Directors. The Board of Directors, subject to
any specific limitations or restrictions imposed by the
Act or these Amended Articles, shall direct the carrying
out of the purposes and exercise the powers of the
Company, without previous authorization or subsequent
approval by the shareholders of the Company.
Section 12. Compensation of Directors. The Board
of Directors is hereby specifically authorized, in and by
the by-laws of the Company, or by resolution duly adopted
by such Board, to make provision for reasonable
compensation to its members for their services as
Directors, and to fix the basis and conditions upon which
such compensation shall be paid. Any Director of the
Company may also serve the Company in any other capacity
and receive compensation therefor in any form.
Section 13. Amendments of Amended Articles. Except
as otherwise expressly provided in Article 6, A., Section
4 hereof, and subject to the provisions applicable to
particular series of Preferred Stock, the Company
reserves the right from time to time to increase or
decrease its authorized shares, or any class or series
thereof, and to reclassify the same, and to amend, alter,
change or repeal any provision contained in these Amended
Articles, or in any amendment hereto, or to add any
provision to these Amended Articles or to any amendment
hereto, in any manner now or hereafter prescribed or
permitted by the provisions of the Act or any amendment
thereto, or by the provisions of any other applicable
statute of the State of Indiana; and all rights conferred
upon shareholders in these Amended Articles or any
amendment hereto granted subject to this reservation.
2. Effect of Amended Articles of Incorporation
These Amended Articles effectuate certain amendments
of, and shall supersede and take the place of, the
heretofore existing Amended Articles of Incorporation of
the Company approved and filed in accordance with the Act
on April 23, 1976.
IN WITNESS WHEREOF, the undersigned officers execute
these Amended Articles of Incorporation of the Company
and certify to the truth of the facts herein stated, this
20th day of April, 1979.
/s/ MARCUS E. WOODS /s/ ZANE G. TODD
MARCUS E. WOODS, Secretary ZANE G. TODD, President
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
I, the undersigned, a Notary Public duly
commissioned to take acknowledgements and administer
oaths in the State of Indiana, certify that Zane G. Todd,
President, and Marcus E. Woods, Secretary, of
Indianapolis Power & Light Company, an Indiana
corporation, the officers executing the foregoing Amended
Articles of Incorporation, personally appeared before me,
acknowledged the execution thereof and swore to the truth
of the facts therein stated.
WITNESS my hand and Notarial Seal this 20th day of
April, 1979.
/s/ KATHLEEN M. KLOTZBIER
KATHLEEN M. KLOTZBIER, Notary Public
My Commission Expires: My County of Residence is:
March 29, 1982 MARION
(S E A L)
This instrument prepared by Marcus E. Woods, Attorney at Law
25 Monument Circle, Indianapolis, Indiana 46204
APPROVED AND FILED
April 20, 1979
EDWIN J. SIMCOX,
Secretary of State of Indiana
EXHIBIT 4(b)
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration
of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
INCORPORATED UNDER THE LAWS OF INDIANA
INDIANAPOLIS POWER & LIGHT COMPANY
Number _______% CLASS PREFERRED STOCK ($100 PAR VALUE)
__ - 0001 Shares
**500,000**
CUSIP 000000 00 0
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS IS TO CEDE & CO
CERTIFY PO BOX 20 ***500,000********
THAT BOWLING GREEN STA ****500,000*******
NEW YORK, NY 10004 *****500,000******
******500,000*****
*******500,000****
is the
owner of **FIVE HUNDRED THOUSAND**
fully-paid and non-assessable shares of _____% PREFERRED STOCK
of the par value of One Hundred Dollars ($100.00) each of
INDIANAPOLIS POWER & LIGHT COMPANY
(hereinafter called the "Company")transferable upon the books
of the Company by the holder hereof in person or by duly
authorized attorney, upon surrender of this Certificate
properly endorsed. This Certificate and the shares represented
hereby are issued and shall be subject to all the provisions
of the Company's Articles of Incorporation, as amended, a copy
of which is on file at the office of the Company, to which
reference is hereby made with the same effect as if herein set
forth in full and to all of which the holder by the acceptance
hereof assents. For a description of the various classes of
Stock which the Company is authorized to issue and of the
respective rights of the holders thereof, reference is hereby
made to said Articles of Incorporation, as amended. This
Certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Company and the
facsimile signatures of its duly authorized officers.
Dated: _________________ INDIANAPOLIS POWER & LIGHT COMPANY
BY
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
INDIANAPOLIS POWER & LIGHT COMPANY TRANSFER AGENT
(Indianapolis, IN) AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
INDIANAPOLIS POWER & LIGHT COMPANY
A full statement of the designations, preferences, limitations, and
relative rights of the shares of each class of stock authorized to be
issued by the Company, and the variations in the relative rights and
preferences between the shares of each series of preferred or variable
class stock which the Company is authorized to issue, so far as the same
have been fixed and determined, and the authority, if any, of the Company's
Board of Directors to fix and determine the relative rights and preferences
of other series of preferred or variable class stock is set forth in the
Articles of Incorporation of the Company, as amended and/or in resolutions
of the Board of Directors heretofore adopted and duly filed in the office of
the Secretary of State of Indiana. Copies of such Articles of Incorporation,
as amended from time to time, or such resolutions may be obtained by any
shareholder upon request, and without charge, from the office of the Company.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ...Custodian....
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform Gifts
JT TEN - as joint tenants with to Minors Act ......
right of survivorship (State)
and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
For Value Received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR TAXPAYER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________________
____________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
____________________________________________________________________________
____________________________________________________________________________
______________________________________________________________________Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
____________________________________________________________________Attorney
to transfer the said shares on the books of the within-named Company with
full power of substitution in the premises.
Dated ____________
__________________________________________________
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
NOTICE: WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: __________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
EXHIBIT 5
December 18, 1997
Indianapolis Power & Light Company
One Monument Circle
Indianapolis, IN 46204
Gentlemen:
As Senior Vice President, Secretary and General Counsel of
Indianapolis Power & Light Company, an Indiana corporation (the
"Company"), I have acted as counsel to the Company in connection
with the Registration Statement on Form S-3 filed pursuant to the
Securities Act of 1933, as amended, (the "Act") relating to the
proposed offer and sale to certain underwriters of not to exceed
500,000 shares of a new series of the Company's Cumulative
Preferred Stock having a par value of $100 per share (the "New
Preferred Stock"). After examining such records, certificates
and such other documents and having made such investigation of
law as I deemed necessary in the circumstances, it is my opinion
that:
1. The Company has been duly organized and is a validity
existing corporation under the laws of the State of Indiana;
2. The New Preferred Stock will be legally issued and
constitute fully paid and non-assessable shares of the class of
Cumulative Preferred Stock of the Company and the Company will
have complied with the requirements of the Act with respect to
the issue and sale of the New Preferred Stock, if and when:
a. Said Registration Statement and related Prospectus, and any
amendments thereto, have become effective under the Act;
b. The Board of Directors of the Company, or the Chairman
within the limits prescribed by the Board of Directors, in
accordance with the Amended Articles and applicable Indiana law,
has duly authorized the issue and sale of the New Preferred
Stock; has duly fixed and determined such of the relative rights,
preferences, limitations, and restrictions, including the annual
dividend rate and any redemption prices for such series; has
caused Articles of Amendment to be filed with the Secretary of
State of Indiana setting forth the designation of the New
Preferred Stock and the relative rights, preferences,
limitations and restrictions pertaining thereto; and has
authorized the issuance of certificates for the New
Preferred Stock; and
c. The New Preferred Stock has been issued and sold in
accordance with the Act, with applicable state blue sky laws, and
with the order of the Indiana Utility Regulatory Commission
approved December 16, 1997 in Cause No. 40976.
This opinion letter is limited to the current Federal laws
of the United States and the current internal laws of the State
of Indiana (without giving effect to any conflict of law
principles thereof). I have not considered, and express no
opinion on, the laws of any other jurisdiction.
I consent to the use of my name under the caption "Legal
Opinions" in the Prospectus included in the Registration
Statement and to the filing of this opinion as Exhibit 5 thereto.
Sincerely,
/s/ Bryan G. Tabler
Bryan G. Tabler
BGT:gkb
<TABLE>
Exhibit 12
INDIANAPOLIS POWER & LIGHT COMPANY
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
<CAPTION>
Years Ended December 31, Year to Date
(in thousands, except ratios) September 30
================================================================== ============
1992 1993 1994 1995 1996 1997
<S> <C> <C> <C> <C> <C> <C>
Fixed charges and preferred stock
dividends, as defined:
Interest on long-term debt $ 42,663 $ 41,399 $ 45,566 $ 45,656 $ 43,425 $ 29,102
Other interest 1,251 2,305 1,497 4,728 3,638 994
Amortization of debt premium
expense -- net 620 787 1,101 1,212 1,344 1,253
Estimated interest factor
attributable to rents 301 164 138 182 164 127
------------------------------------------------------------------ ------------
Total fixed charges 44,835 44,655 48,302 51,778 48,571 31,476
Preferred stock dividends * 4,949 4,926 4,773 4,704 4,838 3,734
------------------------------------------------------------------ ------------
Total fixed charges and preferred
stock dividends, as defined $ 49,784 $ 49,581 $ 53,075 $ 56,482 $ 53,409 $ 35,210
================================================================== ============
Earnings, as defined:
Net income $ 93,058 $ 102,766 $ 103,823 $ 106,273 $ 122,588 $ 108,456
Add:
Federal and state income tax
provisions 54,476 59,273 54,720 53,568 67,267 61,328
Fixed charges, as above 44,835 44,655 48,302 51,778 48,571 35,210
------------------------------------------------------------------ ------------
Total earnings,
as defined $ 192,369 $ 206,694 $ 206,845 $ 211,619 $ 238,426 $ 204,994
================================================================== ============
Ratio of earnings to combined fixed
charges and preferred stock dividends 3.86 4.17 3.90 3.75 4.46 5.82
================================================================== ============
The Selected Financial Information of the Company set forth above as of September 30, 1997 is unaudited.
* Preferred stock dividends were increased to an amount representing the pre-tax earnings which would be required to
cover such dividend requirements.
</TABLE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Indianapolis Power & Light Company
on Form S-3 of our report dated January 24, 1997, appearing
in the Annual Report on Form 10-K of Indianapolis Power &
Light Company for the year ended December 31, 1996 and to
the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Indianapolis, Indiana
December 18, 1997
Exhibit 24
INDIANAPOLIS POWER & LIGHT COMPANY
POWER OF ATTORNEY
Each of the undersigned directors of INIDANAPOLIS POWER &
LIGHT COMPANY, an Indiana corporation, (the "Corporation"), which
intends to file with the Securities and Exchange Commission,
Washington D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement and related prospectus
for the registration of not to exceed 550,000 shares of
Cumulative Preferred Stock of the Company, $100 par value, does
hereby appoint John R. Brehm and Bryan G. Tabler, and each of
them, his true and lawful attorneys, with power to act each
without the other and with full power of substitution and
resubstitution, for him and in his name, place and stead, to sign
in the capacity of a director of the Company and file said
Registration Statement and related prospectus and any and all
amendments and supplements thereto, and all instruments necessary
or incidental thereto, hereby granting unto said attorneys and
each of them full power and authority to do and perform in the
name and on behalf of each of the undersigned, and in any and all
capacities, every act and thing whatsoever requisite or necessary
to be done in and about the premises, as fully and to all intents
and purposes as each of the undersigned might or could do in
person, hereby ratifying and approving the acts of said attorneys
and each of them.
/s/ John R. Hodowal /s/ Mitchell E. Daniels, Jr.
/s/ Ramon L. Humke /s/ Sallie W. Rowland
/s/ Otto N. Frenzel III /s/ Andre B. Lacy
/s/ Earl B. Herr, Jr. /s/ Thomas H. Sams
/s/ Sam H. Jones
/s/ Robert A. Borns
/s/ Michael E. Maurer
/s/ Joseph D. Barnette, Jr.
IN WITNESS WHEREOF, the foregoing directors of the Company
have affixed their respective signatures hereto in the presence
of a Notary Public for the State of Indiana, this 25th day of
November, 1997.
My Commission Expires: 6-13-99 /s/ Gloria K. Bryant
My County of Residence is Marion Gloria K. Bryant,
Notary Public
