SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM 8-K
__________________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: January 9, 1998
Date of Event (or earliest event) being reported: January 7, 1998
INDIANAPOLIS POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
Indiana 1-3132-2 35-0413620
(State or other (Commission) (IRS Employer)
jurisiction of File Number) Identification No.)
incorporation)
One Monument Circle, Indianapolis, Indiana 46204
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (317) 261-8261
N/A
(Former name or former address, if changed since last report.)
Item 5. Other Event
On January 7, 1998, Indianapolis Power & Light Company (the "Company")
entered into a Terms Agreement with SBC Warburg Dillon Read Inc. and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
for the sale of 500,000 shares of 5.65% Cumulative Preferred Stock, par
value $100 per share, of the Company. Attached hereto are the following
documents: Terms Agreement including the Underwriting Agreement Basic
Provisions and the Articles of Amendment to the Amended Articles of
Incorporation of the Company.
Item 7. Financial Statements and Exhibits
(c) Exhibits
1.1 Terms Agreement dated January 7, 1998 together with the
Underwriting Agreement Basic Provisions
3.1 Articles of Amendment to the Amended Articles of
Incorporation
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: January 9, 1998
INDIANAPOLIS POWER & LIGHT COMPANY
By /s/ Bryan G. Tabler
Name: Bryan G. Tabler
Title: Senior Vice President
EXHIBIT 1.1
INDIANAPOLIS POWER & LIGHT COMPANY
(AN INDIANA CORPORATION)
CUMULATIVE PREFERRED STOCK, 5.65% SERIES
$100 PAR VALUE
TERMS AGREEMENT
Dated: January 7, 1998
Indianapolis Power & Light Company
One Monument Circle
P.O. Box 1595
Indianapolis, IN 46204
Ladies and Gentlemen:
SBC Warburg Dillon Read Inc., Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the "Representa-tives"),
acting on behalf of the underwriter or
underwriters named below (the
"Underwriters"), understands that
Indianapolis Power & Light Company, an
Indiana corporation (the "Company"), proposes
to issue and sell 500,000 shares of its
Cumulative Preferred Stock, 5.65% Series,
$100 par value (the "New Preferred Stock").
Subject to the terms and conditions set
forth or incorporated by reference herein,
the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and
not jointly, the respective number of shares
of New Preferred Stock set forth opposite
their respective names, to the extent any are
purchased, at $99.125 per share.
Number of
Shares of
Underwriter(s) New Preferred Stock
SBC Warburg Dillon Read Inc.. . . . . . . . 250,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated. . . . . . . . . . . 250,000
Total . . . . . . . . . . . . . . 500,000
The New Preferred Stock shall have the terms set forth in
the Prospectus dated December 24, 1997, and the Prospectus
Supplement dated January 7, 1998, including the following:
Title: Cumulative Preferred Stock, 5.65% Series
Number of Shares: 500,000
Dividend Rate: $5.65 or 5.65% Payable: January 1, April 1,
July 1 and October 1
Ranking: Senior to the Company's common stock, no par value,
and equal to each other outstanding series of
Cumulative Preferred Stock, $100 par value.
Public Offering Price Per Share: $100.00, plus accumulated
dividends, if any, from January 13, 1998.
Purchase Price Per Share: $99.125, plus accumulated dividends,
if any, from January 13, 1998.
Conversion Provisions: None
Redemption Provisions: On or after January 1, 2008, the
Company, at its option, may redeem the New Preferred
Stock, in whole or in part, at any time or from time
to time, out of funds legally available therefor, at
the redemption price of $100.00 per share plus an
amount equal to dividends (whether or not declared)
accrued but not previously paid to but excluding the
date of such redemption.
Sinking Fund Requirements: None
Other Terms: The amount of dividends payable in respect to the
New Preferred Stock shall be adjusted as set forth in
Annex B hereto in the event of certain amendments to
the Internal Revenue Code of 1986, as amended, in
respect to the dividends-received deduction.
Payment Mechanism: Wire transfer of immediately available funds
Delivery Date, Time and Location:
January 13, 1998, 9:00 a.m., New York Time
Offices of: Cahill Gordon & Reindel
Eighty Pine Street
New York, New York 10005
Securities Delivered to: The Depository Trust Company
All provisions contained in the document attached as Annex
A hereto entitled "Indianapolis Power & Light Company -
Cumulative Preferred Stock - $100 Par Value -Underwriting
Agreement Basic Provisions," are hereby incorporated by
reference in their entirety and shall be deemed to be a part of
this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please confirm your agreement by having an authorized
officer sign a copy of this Terms Agreement in the space set
forth below.
Very truly yours,
SBC WARBURG DILLON READ INC.
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
Acting severally on behalf of
itself and the several
Underwriters named herein
By: SBC WARBURG DILLON READ INC.
By: /s/ Mark D. Mayer
Name: Mark D. Mayer
Title: Executive Director
Accepted:
INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/ John R. Brehm
Name: John R. Brehm
Title: Senior Vice President -
Finance and Information Services
Indianapolis Power & Light Company
Annex A
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 and
its subsidiaries, taken as a whole, 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 and its subsidiaries, taken as a
whole, which might result in any material
adverse change in the financial condition,
results of operations, business or prospects
of the Company and its subsidiaries, taken as
a whole, 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 transfer of
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, in the opinion
of counsel for the Underwriters, any
Prospectus 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
promptly upon request 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 as they are incurred 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 promptly upon
request 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
as they are incurred 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
such counsel shall have furnished to the
Underwriters its opinion addressed to the
Underwriters and dated the Delivery Date with
respect to the due authorization and valid
issuance of the New Preferred Stock and other
related matters, 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 Underwriters 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 December 16, 1997 in Cause No.
40976, 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, nothing
has come to the attention of such counsel
that causes him to believe that the
Registration Statement or any amendment
thereto at the time such Registration
Statement or amendment became effective
contained an untrue statement of a material
fact or omitted to state a material fact
required to be stated therein or necessary to
make the statements therein not misleading,
or that the Prospectus or any supplement
thereto at the date of such Prospectus or
such supplement, and at all times up to and
including the Delivery Date contained an
untrue statement of a material fact or
omitted to state a material fact required to
be stated therein or necessary to make the
statements therein, in light of the
circumstances under which they were made, not
misleading (it being understood that such
counsel need express no opinion with respect
to the financial statements and schedules and
other financial and statistical data included
in the Registration Statement or Prospectus);
(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;
(xiii) The Company is not, to the
knowledge of such counsel, in violation of
its Articles of Incorporation or By laws and,
to the knowledge of such counsel, no event of
default or event which with notice or lapse
of time or both would constitute an event of
default has occurred or is continuing in any
bond, debenture, note or any other evidence
of indebtedness or in any indenture, mortgage
or deed of trust of the Company or any other
material agreement of the Company (which
default would have a material adverse effect
on the business, condition (financial or
other), results of operations or prospects
of the Company); and
(xiv) 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: Kenneth S. Crews. Any
notice by the Underwriters to the Company
shall be sufficient if given in writing or by
telegraph addressed to the Company at One
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.
Annex B
ADJUSTMENTS TO THE DIVIDEND RATE IN THE EVENT OF CERTAIN
AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986
If, prior to 18 months after the date of the original
issuance of the New Preferred Stock, one or more amendments to
the Internal Revenue Code of 1986, as amended (the "Code"), are
enacted that reduce the percentage of the dividends-received
deduction (currently 70%) as specified in section 243(a)(1) of
the Code or any successor provision (the "Dividends-Received
Percentage"), certain adjustments may be made in respect of the
dividends payable by the Company, and Post Declaration Date
Dividends and Retroactive Dividends (as such terms are defined
below) may become payable, as described below.
The amount of each dividend payable (if declared) per
share of New Preferred Stock for dividend payments made on or
after the effective date of such change in the Code will be
adjusted by multiplying the amount of the dividend payable
described above (before adjustment) by a factor, which will be
the number determined in accordance with the following formula
(the "DRD Formula"), and rounding the result to the nearest
cent (with one-half cent rounded up):
1- .35(1- .70)
--------------
1- .35(1- DRP)
For the purposes of the DRD Formula, "DRP" means the
Dividends-Received Percentage (expressed as a decimal)
applicable to the dividend in question; provided, however, that
if the Dividends-Received Percentage applicable to the dividend
in question shall be less than 50%, then the DRP shall equal
.50. No amendment to the Code, other than a change in the
percentage of the dividends-received deduction set forth in
section 243(a)(1) of the Code or any successor provision
thereto, will give rise to an adjustment. Notwithstanding the
foregoing provisions, if, with respect to any such amendment,
the Company receives either an unqualified opinion of
nationally recognized independent tax counsel selected by the
Company or a private letter ruling or similar form of
authorization from the Internal Revenue Service ("IRS") to the
effect that such amendment does not apply to a dividend payable
on the New Preferred Stock, then such amendment will not result
in the adjustment provided for pursuant to the DRD Formula with
respect to such dividend. The opinion referenced in the
previous sentence shall be based upon the legislation amending
or establishing the DRP or upon a published pronouncement of
the IRS addressing such legislation. The Company's calculation
of the dividends payable, as so adjusted and as certified
accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged
by the Company, shall be final and not subject to review absent
manifest error.
Notwithstanding the foregoing, if any such amendment to
the Code is enacted after the dividend payable on a dividend
payment date has been declared but before the dividend has been
paid, the amount of the dividend payable on such dividend
payment date will not be increased; instead, additional
dividends (the "Post Declaration Date Dividends") equal to the
excess, if any, of (x) the product of the dividend paid by the
Company on such dividend payment date and the DRD Formula
(where the DRP used in the DRD Formula would be equal to the
greater of the Dividend-Received Percentage applicable to the
dividend in question and .50) over (y) the dividend paid by the
Company on such dividend payment date, will be payable (if
declared) to the holders of New Preferred Stock on the record
date applicable to the next succeeding dividend payment date
or, if the New Preferred Stock is called for redemption prior
to such record date, to holders of New Preferred Stock on the
applicable redemption date, as the case may be, in addition to
any other amounts payable on such date.
If any such amendment to the Code is enacted and the
reduction in the Dividends-Received Percentage retroactively
applies to a dividend payment date as to which the Company
previously paid dividends on the New Preferred Stock (each, an
"Affected Dividend Payment Date"), the Company will pay (if
declared) additional dividends (the "Retroactive Dividends") to
holders of New Preferred Stock on the record date applicable to
the next succeeding dividend payment date (or, if such
amendment is enacted after the dividend payable on such
dividend payment date has been declared, to holders of New
Preferred Stock on the record date following the date of
enactment) or, if the New Preferred Stock is called for
redemption prior to such record date, to holders of New
Preferred Stock on the applicable redemption date, as the case
may be, in an amount equal to the excess of (x) the product of
the dividend paid by the Company on each Affected Dividend
Payment Date and the DRD Formula (where the DRP used in the DRD
Formula would be equal to the greater of the Dividends-Received
Percentage and .50 applied to each Affected Dividend Payment
Date) over (y) the sum of the dividend paid by the Company on
each Affected Dividend Payment Date. The Company will only
make one payment of Retroactive Dividends for any such
amendment. Notwithstanding the foregoing provisions, if, with
respect to any such amendment, the Company receives either an
unqualified opinion of nationally recognized independent tax
counsel selected by the Company or a private letter ruling or
similar form of authorization from the IRS to the effect that
such amendment does not apply to a dividend payable on an
Affected Dividend Payment Date for the New Preferred Stock,
then such amendment will not result in the payment of
Retroactive Dividends with respect to such Affected Dividend
Payment Date. The opinion referenced in the previous sentence
shall be based upon the legislation amending or establishing
the DRP or upon a published pronouncement of the IRS addressing
such legislation.
Notwithstanding the foregoing, no adjustment in the
dividends payable by the Company shall be made, and no Post
Declaration Date Dividends or Retroactive Dividends shall be
payable by the Company, in respect of the enactment of any
amendment to the Code 18 months or more after the date of
original issuance of the New Preferred Stock that reduces the
Dividends-Received Percentage.
In the event that the amount of dividends payable per
share of the New Preferred Stock is adjusted pursuant to the
DRD Formula and/or Post Declaration Date Dividends or
Retroactive Dividends are to be paid, the Company will give
notice of each such adjustment and, if applicable, any Post
Declaration Date Dividends and Retroactive Dividends to the
holders of New Preferred Stock.
EXHIBIT 3.1
ARTICLES OF AMENDMENT OF THE SUE ANNE GILROY
ARTICLES OF INCORPORATION SECRETARY OF STATE
State Form 38333 (R7 / 4-95) CORPORATIONS DIVISION
Approved by State Board of Accounts 1995 302 W. Washington St., Rm. E018
INSTRUCTIONS: Use 8-1/2 x 11 inch white Indianapolis, IN 46204
paper for inserts. Telephone: (317) 232-6576
Present original and one
copy to address in upper
right corner of this form. Indiana Code 23-1-38-1 et seq.
Please TYPE or PRINT Filing Fee: $30.00
APPROVED
AND
FILED
IND SECRETARY OF STATE
ARTICLES OF AMENDMENT OF THE
AMENDED ARTICLES OF INCORPORATION OF:
Name of Corporation
Indianapolis Power & Light Company
The undersigned officers of:
Indianapolis Power & Light Company
(hereinafter referred to as the "Corporation") existing pursuant to the
provisions of: (indicate appropriate act)
x Indiana Business Corporation Law __ Indiana Professional Corporation
Act of 1983
as amended (hereinafter referred to as the "Act"), desiring to give notice
of corporate action effectuating amendment of certain provisions of its
Amended Articles of Incorporation, certify the following facts:
ARTICLE I Amendment(s)
SECTION 1 The date of incorporation of the Corporation is:
October 27, 1926
SECTION 2 The name of the Corporation following this amendment to the
Articles ofIncorporation is:
Indianapolis Power & Light Company
SECTION 3
The exact text to Article 6A, Section 5 of the Amended Articles of
Incorporation is now as follows:
See attached Exhibit "A".
SECTION 4 Date of each amendment's adoption:
November 25, 1997
ARTICLE II Manner of Adoption and Vote
Strike inapplicable section:
X SECTION 1 This amendment was adopted by the Board of Directors or
incorporators and shareholder action was not required.
___ SECTION 2 The shareholders of the Corporation entitled to vote in
respect to the amendment adopted the proposed amendment.
The amendment was adopted by:
A. Vote of such shareholders during a meeting called by the Board of
Directors. The result of such vote is as follows:
_____ Shares entitled to vote.
_____ Number of shares represented at the meeting.
_____ Shares voted in favor.
_____ Shares voted against.
B. Written consent executed on ___________________, 19___ and signed
by all such shareholders.
ARTICLE III Compliance with Legal Requirements
The manner of the adoption of the Articles of Amendment and the vote by
which they were adopted constitute full legal compliance with the provisions
of the Act, the Articles of Incorporation, and the By-Laws of the Corporation.
I hereby verify subject to the penalties of perjury, that the statements
contained herein are true, this 8th day of January, 1998.
Signature of current officer Printed name of officer
/s/ Bryan G. Tabler
Bryan G. Tabler
Officer's Title
Senior Vice President, Secretary and General Counsel
EXHIBIT "A"
ARTICLES OF
AMENDMENT
INDIANAPOLIS POWER &
LIGHT COMPANY
Section 5. (a) The Company hereby
classifies 500,000 shares of its Cumulative
Preferred Stock as a series of such
Cumulative Preferred Stock, which shall be
designated as `5.65% Cumulative Preferred
Stock' consisting of 500,000 shares of the
par value of $100.00 per share.
(b) The relative rights, preferences,
limitations and restrictions of the shares of
such 5.65% Cumulative Preferred Stock, in the
respect in which the shares of such series
may vary from shares of other series of the
Cumulative Preferred Stock, shall be, and
hereby are, fixed and determined to be as
follows:
(i) The annual dividend rate for such
series shall be 5.65%, and the date from
which dividends thereon shall accrue shall be
the date of original issuance thereof.
If, prior to 18 months after the date of the
original issuance of the 5.65% Cumulative
Preferred Stock, one or more amendments to
the Internal Revenue Code of 1986, as amended
(the "Code"), are enacted that reduce the
percentage of the dividends-received
deduction (currently 70%) as specified in
section 243(a)(1) of the Code or any
successor provision (the "Dividends-Received
Percentage"), certain adjustments may be made
in respect of the dividends payable by the
Company, and Post Declaration Date Dividends
and Retroactive Dividends (as such terms are
defined below) may become payable, as
described below.
The amount of each dividend payable (if
declared) per share of 5.65% Cumulative
Preferred Stock for dividend payments made on
or after the effective date of such change in
the Code will be adjusted by multiplying the
amount of the dividend payable described
above (before adjustment) by a factor, which
will be the number determined in accordance
with the following formula (the "DRD
Formula"), and rounding the result to the
nearest cent (with one-half cent rounded up):
1- .35(1- .70)
--------------
1- .35(1- DRP)
For the purposes of the DRD Formula,
"DRP" means the Dividends-Received Percentage
(expressed as a decimal) applicable to the
dividend in question; provided, however, that
if the Dividends-Received Percentage
applicable to the dividend in question shall
be less than 50%, then the DRP shall equal
.50. No amendment to the Code, other than a
change in the percentage of the dividends-
received deduction set forth in section
243(a)(1) of the Code or any successor
provision thereto, will give rise to an
adjustment. Notwithstanding the foregoing
provisions, if, with respect to any such
amendment, the Company receives either an
unqualified opinion of nationally recognized
independent tax counsel selected by the
Company or a private letter ruling or similar
form of authorization from the Internal
Revenue Service ("IRS") to the effect that
such amendment does not apply to a dividend
payable on the 5.65% Cumulative Preferred
Stock, then such amendment will not result in
the adjustment provided for pursuant to the
DRD Formula with respect to such dividend.
The opinion referenced in the previous
sentence shall be based upon the legislation
amending or establishing the DRP or upon a
published pronouncement of the IRS addressing
such legislation. The Company's calculation
of the dividends payable, as so adjusted and
as certified accurate as to calculation and
reasonable as to method by the independent
certified public accountants then regularly
engaged by the Company, shall be final and
not subject to review absent manifest error.
Notwithstanding the foregoing, if any
such amendment to the Code is enacted after
the dividend payable on a dividend payment
date has been declared but before the
dividend has been paid, the amount of the
dividend payable on such dividend payment
date will not be increased; instead,
additional dividends (the "Post Declaration
Date Dividends") equal to the excess, if any,
of (x) the product of the dividend paid by
the Company on such dividend payment date and
the DRD Formula (where the DRP used in the
DRD Formula would be equal to the greater of
the Dividend-Received Percentage applicable
to the dividend in question and .50) over (y)
the dividend paid by the Company on such
dividend payment date, will be payable (if
declared) to the holders of 5.65% Cumulative
Preferred Stock on the record date applicable
to the next succeeding dividend payment date
or, if the 5.65% Cumulative Preferred Stock
is called for redemption prior to such record
date, to holders of 5.65% Cumulative
Preferred Stock on the applicable redemption
date, as the case may be, in addition to any
other amounts payable on such date.
If any such amendment to the Code is
enacted and the reduction in the Dividends-
Received Percentage retroactively applies to
a dividend payment date as to which the
Company previously paid dividends on the
5.65% Cumulative Preferred Stock (each, an
"Affected Dividend Payment Date"), the
Company will pay (if declared) additional
dividends (the "Retroactive Dividends") to
holders of 5.65% Cumulative Preferred Stock
on the record date applicable to the next
succeeding dividend payment date (or, if such
amendment is enacted after the dividend
payable on such dividend payment date has
been declared, to holders of 5.65% Cumulative
Preferred Stock on the record date following
the date of enactment) or, if the 5.65%
Cumulative Preferred Stock is called for
redemption prior to such record date, to
holders of 5.65% Cumulative Preferred Stock
on the applicable redemption date, as the
case may be, in an amount equal to the excess
of (x) the product of the dividend paid by
the Company on each Affected Dividend Payment
Date and the DRD Formula (where the DRP used
in the DRD Formula would be equal to the
greater of the Dividends-Received Percentage
and .50 applied to each Affected Dividend
Payment Date) over (y) the sum of the
dividend paid by the Company on each Affected
Dividend Payment Date. The Company will only
make one payment of Retroactive Dividends for
any such amendment. Notwithstanding the
foregoing provisions, if, with respect to any
such amendment, the Company receives either
an unqualified opinion of nationally
recognized independent tax counsel selected
by the Company or a private letter ruling or
similar form of authorization from the IRS to
the effect that such amendment does not apply
to a dividend payable on an Affected Dividend
Payment Date for the 5.65% Cumulative
Preferred Stock, then such amendment will not
result in the payment of Retroactive
Dividends with respect to such Affected
Dividend Payment Date. The opinion
referenced in the previous sentence shall be
based upon the legislation amending or
establishing the DRP or upon a published
pronouncement of the IRS addressing such
legislation.
Notwithstanding the foregoing, no
adjustment in the dividends payable by the
Company shall be made, and no Post
Declaration Date Dividends or Retroactive
Dividends shall be payable by the Company, in
respect of the enactment of any amendment to
the Code 18 months or more after the date of
original issuance of the 5.65% Cumulative
Preferred Stock that reduces the Dividends-
Received Percentage.
In the event that the amount of
dividends payable per share of the 5.65%
Cumulative Preferred Stock is adjusted
pursuant to the DRD Formula and/or Post
Declaration Date Dividends or Retroactive
Dividends are to be paid, the Company will
give notice of each such adjustment and, if
applicable, any Post Declaration Date
Dividends and Retroactive Dividends to the
holders of 5.65% Cumulative Preferred Stock;
(ii) The 5.65% Cumulative Preferred
Stock shall be redeemable at a price of
$100.00 per share on or after January 1,
2008, together with an amount equal to all
dividends accumulated and unpaid to the date
fixed for redemption;
(iii) The amount payable to the holders
of the 5.65% Cumulative Preferred Stock upon
the voluntary liquidation, dissolution or
winding up of the Company shall be the
redemption price per share in effect at the
time of such voluntary liquidation,
dissolution or winding up, and upon the
involuntary liquidation, dissolution or
winding up of the Company shall be $100.00
per share, together with a sum, in each case,
equal to all dividends accumulated and unpaid
to the date fixed for the payment of such
distributive amounts;
(iv) There shall be no sinking fund or
preemptive rights for the purchase or
redemption of the shares of such series;
(v) There shall be no right of
conversion of the shares of such series into
shares of Common Stock or other junior stock
of the Company;
(vi) The maximum number of shares of
such series issuable shall be 500,000.
