<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
UTILICORP UNITED INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 44-0541877
(State or other jurisdiction (I.R.S. Employer
of Identification
incorporation or No.)
organization)
</TABLE>
911 MAIN, KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
RICHARD C. GREEN, JR.
UTILICORP UNITED INC.
911 MAIN, KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------------
COPIES TO:
<TABLE>
<S> <C>
DENNIS P. WILBERT, ESQ. M. DOUGLAS DUNN, ESQ.
Blackwell Sanders Matheny ROBERT W. MULLEN, JR., ESQ.
Weary & Lombardi L.C. Milbank, Tweed, Hadley & McCloy
Two Pershing Square 1 Chase Manhattan Plaza
2300 Main Street New York, New York 10005
Kansas City, Missouri 64108
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
---------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment
plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED* PER UNIT** OFFERING PRICE* REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value
$1 per share.......................... 6,000,000 shares $27.75 $166,500,000 $50,455
</TABLE>
* Includes 750,000 shares to cover over-allotments.
** Estimated for the purpose of calculating the registration fee in accordance
with Rule 457(c) based on the average of the high and low prices reported on
the consolidated reporting system on October 24, 1996.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
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.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 25, 1996
PROSPECTUS
[UtiliCorp Logo]
5,250,000 SHARES
[LOGO]
COMMON STOCK
"$1.00 PAR VALUE"
----------------
The outstanding shares of the Common Stock of UtiliCorp United Inc. (the
"Company" or "UtiliCorp") are, and the shares offered hereby will be, listed on
the New York, Pacific and Toronto Stock Exchanges under the symbol UCU. On
, 1996, the last reported sale price of the Common Stock on the New
York Stock Exchange was $ per share.
-------------------
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.
<TABLE>
<CAPTION>
UNDERWRITING
DISCOUNTS
PRICE TO AND COMMISSIONS PROCEEDS TO
PUBLIC (1) COMPANY (2)
<S> <C> <C> <C>
Per Share $ $ $
Total (3) $ $ $
</TABLE>
(1) The Company has agreed to indemnify the several Underwriters against certain
civil liabilities, including liabilities under the Securities Act of 1933,
as amended. See "Underwriting".
(2) Before deduction of expenses payable by the Company estimated at $350,000.
(3) The Company has granted the Underwriters a 30-day option to purchase up to
750,000 additional shares of Common Stock on the same terms as set forth
above to cover over-allotments, if any. If such option is exercised in full,
the total Price to Public, Underwriting Discounts and Commissions and
Proceeds to Company will be $ , $ and $ , respectively.
See "Underwriting".
-------------------
The shares of Common Stock are being offered by the several Underwriters
named herein, subject to prior sale, when, as and if accepted by them and
subject to certain conditions. It is expected that certificates for the shares
of Common Stock offered hereby will be made available for delivery in New York,
New York on or about 1996.
-------------------
MERRILL LYNCH & CO.
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN & CO.
PAINEWEBBER INCORPORATED
------------
The Date of this Prospectus is , 1996.
<PAGE>
[LOGO]
[SERVICE AREA MAPS]
A PRESENTATION OF THREE MAPS IS SHOWN INDICATING THE COMPANY'S SERVICE
TERRITORIES FOR ITS UTILITY OPERATIONS, NON-UTILITY OPERATIONS AND
INTERNATIONAL, RESPECTIVELY.
THE FIRST MAP INDICATES AREAS OF THE COMPANY'S ELECTRIC, GAS AND COMBINATION
UTILITY OPERATIONS IN MINNESOTA, IOWA, NEBRASKA, COLORADO, KANSAS, MISSOURI,
MICHIGAN, WEST VIRGINIA AND BRITISH COLUMBIA, CANADA.
THE SECOND MAP INDICATES THE AREAS AND LOCATIONS OF THE COMPANY'S GAS MARKETING
AREA (45 STATES, PART OF CANADA AND MEXICO), GAS PIPELINES (TEXAS AND OKLAHOMA),
GAS PROCESSING PLANTS (TEXAS AND OKLAHOMA) AND INDEPENDENT POWER PROJECTS
(WASHINGTON, CALIFORNIA, MAINE, NEW YORK, PENNSYLVANIA, ALABAMA AND FLORIDA).
THE THIRD MAP INDICATES THE LOCATION OF THE COMPANY'S INVESTMENTS IN NEW ZEALAND
ELECTRIC OPERATIONS, AUSTRALIAN ELECTRIC OPERATIONS AND JAMAICAN INDEPENDENT
POWER PROJECT AND ITS UNITED KINGDOM GAS MARKETING AREA.
<PAGE>
[LOGO]
MERGERS, ACQUISITIONS AND INVESTMENTS SINCE 1984
<TABLE>
<CAPTION>
COST
CUSTOMERS AS OF (DOLLARS IN
SERVICE OWNERSHIP 6/30/96 MILLIONS)
---------------- ------------ --------------- ------------------
<S> <C> <C> <C> <C>
ORIGINAL UTILITY OPERATIONS(A):
Missouri Public Service............. Electric 100% 188,267 --
Missouri Public Service............. Gas 100 42,511 --
---------------
TOTAL........................... 230,778
---------------
NORTH AMERICAN UTILITY MERGERS AND
ACQUISITIONS:
Kansas Public Service............... Gas 100% 27,794 $ 4.8
Peoples Natural Gas................. Gas 100 533,687 246.0(b)
Northern Minnesota Utilities........ Gas 100 32,098 22.0
West Virginia Power................. Electric 100 25,448 21.0
West Kootenay Power................. Electric 100 81,310 62.0
Michigan Gas Utilities.............. Gas 100 138,416 62.0
West Virginia gas system............ Gas 100 23,484 3.0
WestPlains Energy................... Electric 100 141,546 209.2(c)
Missouri Intrastate Pipeline........ Pipeline 100 -- 78.0
Kansas gas system................... Gas 100 (d) 23.0
Nebraska gas system................. Gas 100 (d) 78.0 (e)
--------------- --------
TOTAL........................... 1,003,783 $ 809.0
--------------- --------
INTERNATIONAL INVESTMENTS:
Power New Zealand Ltd............... Electric 29.4%(f) 214,000 $ 125.7
WEL Energy Group Ltd................ Electric 39.0(f) 65,000 42.1
United Energy Ltd................... Electric 49.9 533,000 257.9
--------------- --------
TOTAL........................... 812,000 $ 425.7
--------------- --------
NON-REGULATED ACQUISITIONS AND
INVESTMENTS:
UtilCo Group investments............ Independent
Power Projects 22-50% -- $ 209.5
Other............................... Gas marketing
and other 100 -- 123.5
--------
TOTAL........................... $ 333.0
--------
TOTAL..................... 2,046,561 $ 1,567.7
--------------- --------
--------------- --------
</TABLE>
- ------------
(a) UtiliCorp was formed in 1985 from Missouri Public Service Company, which
was founded in 1917.
(b) Not including the Nebraska gas system acquired in February 1993 or the
Kansas gas system acquired in September 1994. Both now operate as part of
Peoples Natural Gas.
(c) The total value of the WestPlains Energy acquisition transaction was $349.8
million, including the $209.2 million cash purchase price, assumption of
$26.0 million in debt, and the purchase by a third party of ownership
interest in a generating facility for $114.6 million. WestPlains Energy has
use of that generating capacity through a 27-year operating lease.
(d) Customers are included in Peoples Natural Gas above.
(e) Excluding $21.0 million in working capital and liabilities assumed.
(f) Interests are held through a 79% owned subsidiary of the Company.
<PAGE>
AVAILABLE INFORMATION
UtiliCorp is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at public reference
facilities of the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; and at the Commission's Regional Offices located at Room 1400,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, reports, proxy statements and other information
concerning UtiliCorp may be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005 and the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104. Such material may
also be accessed electronically by means of the Commission's home page on the
Internet at
http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act are incorporated in this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q, as amended by the
Company's Quarterly Report on Form 10-Q/A, for the quarter ended
March 31, 1996;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996; and
(d) The Company's Current Reports on Form 8-K dated January 19, 1996, May
22, 1996, May 28, 1996 and September 30, 1996;
(e) The Company's Current Reports on Form 8-K, as amended by the
Company's Current Reports on Form 8-K/A, dated April 1, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be modified or superseded, for purposes
of this Prospectus, to the extent that a statement contained herein or in any
subsequently filed document which is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any 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 such exhibits are specifically
incorporated by reference into such documents. Such requests should be directed
to Mr. Dale J. Wolf, Vice President, Finance, Treasurer and Corporate Secretary,
UtiliCorp United Inc., 911 Main, P.O. Box 13287, Kansas City, Missouri
64199-3287, telephone number (816) 421-6600.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT
A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK, PACIFIC OR TORONTO STOCK EXCHANGES
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE>
PROSPECTUS SUMMARY
THIS SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, AND SHOULD BE READ IN
CONJUNCTION WITH, THE INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS AND IN
THE DOCUMENTS, FINANCIAL STATEMENTS AND OTHER INFORMATION INCORPORATED HEREIN BY
REFERENCE.
THE OFFERING
<TABLE>
<S> <C>
Company..................................... UtiliCorp United Inc.
Securities Offered (1)...................... 5,250,000 shares of Common Stock (par value
$1 per share)
Approximate Number of Shares Outstanding
After the Offering (1)..................... shares
Common Stock Price Range: January 1, 1996
through October 24, 1996................... $30 1/2 - $25 3/4
Listing..................................... New York, Pacific and Toronto Stock
Exchanges (Symbol: UCU)
Indicated Annual Dividend Rate.............. $1.76 per share, paid quarterly
Book Value Per Share at June 30, 1996....... $21.17
Use of Proceeds............................. To reduce short-term indebtedness incurred
for acquisitions, construction and debt
retirements and for general corporate
purposes
</TABLE>
- ------------
(1) Does not include an additional 750,000 shares subject to the Underwriters'
over-allotment option. See Cover Page and "Underwriting".
3
<PAGE>
THE COMPANY
UtiliCorp is an international energy and energy services company based in
Kansas City, Missouri. The Company's energy operations consist of electric and
natural gas utility operations, natural gas gathering, marketing and processing
and investments in independent power projects. Since being formed in 1985 from
Missouri Public Service Company, UtiliCorp has grown principally through utility
mergers, acquisitions and investments totaling approximately $1.6 billion, which
includes the investment of more than $300 million in non-regulated acquisitions
and investments. For the ten-year period ending December 31, 1995, the Company's
sales have grown from $243 million to approximately $2.8 billion, an average
annual growth rate of 27.7%. Over the same period, income from operations has
grown from $63 million to $225 million, an average annual growth rate of 13.6%.
UtiliCorp and its subsidiaries and joint ventures serve approximately 2.0
million electric and gas utility customers in eight states, one Canadian
province, Australia and New Zealand. The Company's North American electric
utility operations serve approximately 437,000 customers in four states --
Missouri, Kansas, Colorado, and West Virginia -- and the Canadian province of
British Columbia. The Company's domestic gas utility operations serve
approximately 800,000 customers in eight states -- Missouri, Kansas, Colorado,
Iowa, Nebraska, Minnesota, Michigan and West Virginia. The Company's Australian
electric distribution joint venture serves approximately 533,000 customers in
metropolitan Melbourne. The Company also owns equity interests in two electric
distribution utilities in New Zealand serving approximately 280,000 customers
and sells natural gas to wholesale and commercial businesses in the United
Kingdom through subsidiaries and joint ventures.
UtiliCorp's strategy is to be a multinational provider of energy solutions
to its customers. As part of this strategy, UtiliCorp, in 1995, launched
EnergyOneSM, the first nationally branded line of products and services for
electric and gas utility customers. The Company believes that the EnergyOneSM
portfolio of value-added services and tailored energy solutions is a key part of
its strategy. In addition, the Company recently realigned its domestic
operations into three business groups to better serve its customers: UtiliCorp
Energy Delivery, UtiliCorp Energy Group and UtiliCorp Energy Solutions. The
Company's international operations are managed separately.
Aquila Energy Corporation, a wholly-owned subsidiary of UtiliCorp, markets
natural gas in 45 states as well as parts of Canada and Mexico. Aquila Energy
Corporation's 82% owned subsidiary, Aquila Gas Pipeline Corporation, has an
interest in 14 natural gas gathering systems and four natural gas processing
plants in Texas and Oklahoma. Through its UtilCo Group Inc. subsidiary, the
Company owns interests in 17 independent power projects in seven states and
Jamaica.
In 1995, Aquila Power Corporation was formed as a subsidiary of Aquila
Energy Corporation to take advantage of opportunities in wholesale electricity
marketing and brokering. On January 11, 1995, Aquila Energy Corporation received
approval from the Federal Energy Regulatory Commission to market electricity to
wholesale customers such as utilities and municipalities.
In 1995, the Company's North American electricity requirements were met 61%
by the Company's own generation facilities and 39% by purchased power. The
Company owns regulated electric generating facilities with a total 1,785
megawatts of capacity. The Company's electric power generation is fueled 69% by
coal fired facilities, 21% by hydroelectric facilities, and 10% by natural gas
or oil fired facilities. UtiliCorp neither owns nor operates any nuclear
generating assets.
4
<PAGE>
SUMMARY FINANCIAL INFORMATION
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
JUNE 30, 1996* YEARS ENDED DECEMBER 31,
------------------------ -------------------------------
INCOME STATEMENT DATA: PRO FORMA (1) ACTUAL 1995 1994 1993
------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Sales (2)......................................... $ 3,320.9 $ 3,320.9 $ 2,798.5 $ 2,398.1 $ 2,746.1
Income from Operations (3)(4)..................... 230.5 230.5 225.1 228.0 144.0
Net Income (5)(6)................................. 109.5 104.1 79.8 94.4 86.4
Earnings Available for Common Shares.............. 107.4 102.0 77.7 91.4 79.5
Primary Earnings Per Common Share................. 2.09 2.22 1.72 2.08 1.95
Fully Diluted Earnings Per Common Share........... 2.08 2.21 1.71 2.06 1.92
Cash Dividends Per Common Share................... 1.74 1.74 1.72 1.70 1.62
</TABLE>
<TABLE>
<CAPTION>
AS OF JUNE 30, 1996*
-------------------------
AS ADJUSTED
BALANCE SHEET DATA: (7) ACTUAL
-------------- ---------
<S> <C> <C>
Total Assets........................................................................ $ 3,915.1 $ 3,915.1
Short-Term Debt (Including Current Maturities)...................................... 21.2 259.9
Long-Term Debt...................................................................... 1,480.5 1,380.5
Preference and Preferred Stock (8).................................................. 125.4 125.4
Common Shareholders' Equity......................................................... 1,132.7 994.0
</TABLE>
- ---------------
* Unaudited
(1) The pro forma financial data give effect to: (a) the sale of 5,250,000
shares of Common Stock offered pursuant to the offering (assuming net
proceeds to the Company of $26.50 per share and assuming the Underwriters'
over-allotment option is not exercised) and (b) the application of the net
proceeds as described under "Use of Proceeds and Financing Program" as
though they had occurred at the beginning of the period indicated. The pro
forma income statement impact for the issuance of $100 million of Senior
Notes as described in "Recent Developments" has been excluded due to
immateriality.
(2) In 1995, the Company changed its method of accounting for domestic natural
gas trading operations to the mark-to-market method. This change in
accounting increased sales and income from operations by $29.8 million, net
income by $18.3 million ($.40 per fully diluted share) and total assets by
$201.9 million. This change in accounting has been reflected from January
1, 1995. The pro forma effect on prior periods is not material.
(3) In 1993, Aquila Energy Corporation, a subsidiary of the Company, recorded a
$69.8 million pre-tax restructuring charge ($45.0 million after-tax)
against earnings ($1.02 per fully diluted share) related to a change in
strategic direction.
(4) In 1995, the Company recorded a $34.6 million pre-tax charge ($19.6 million
after-tax, or $.43 per fully-diluted share) related to impaired assets.
(5) In 1993, Aquila Energy Corporation sold 18% of Aquila Gas Pipeline
Corporation in an initial public offering resulting in a non-taxable gain
of $47.8 million ($1.08 per fully diluted share).
(6) In 1996, the Company recorded an $11.8 million after-tax gain ($.25 per
fully diluted share) primarily from the effects of a sales lease
transaction at a UtilCo Group Inc. partnership.
(7) The as adjusted financial data give effect to: (a) the sale of the
5,250,000 shares of Common Stock offered pursuant to the offering (assuming
net proceeds to the Company of $26.50 per share and assuming the
Underwriters' over-allotment option is not exercised); (b) the application
of the net proceeds as described under "Use of Proceeds and Financing
Program"; and (c) the pro forma balance sheet impact for the issuance of
$100 million of Senior Notes as described in "Recent Developments".
(8) Includes $100 million of Company-obligated mandatorily redeemable preferred
securities of a partnership, $25 million preference stock and approximately
$400,000 preferred stock of a Company subsidiary.
5
<PAGE>
THE COMPANY
UtiliCorp is an international energy and energy services company consisting
of electric and natural gas utility operations, natural gas gathering, marketing
and processing and investments in independent power projects. The Company's
activities are primarily managed through three business groups: UtiliCorp Energy
Delivery ("UED"), consisting primarily of transmission and distribution utility
operations, UtiliCorp Energy Group ("UEG"), consisting of gas marketing,
processing, gathering and electricity marketing, as well as electricity
generation and independent power production, and UtiliCorp Energy Solutions
("UES"), consisting of gas marketing, appliance service contracts and other
energy related products and services. UtiliCorp's international operations are
managed separately from these business groups. The Company has its Executive
Offices at 911 Main, Kansas City, Missouri 64105, telephone number (816)
421-6000.
UtiliCorp and its subsidiaries and joint ventures serve approximately 2.0
million electric and gas utility customers in eight states, one Canadian
province, Australia and New Zealand. The Company's North American electric
utility operations serve approximately 437,000 customers in four states --
Missouri, Kansas, Colorado, and West Virginia -- and the Canadian province of
British Columbia. The Company's domestic gas utility operations serve
approximately 800,000 customers in eight states -- Missouri, Kansas, Colorado,
Iowa, Nebraska, Minnesota, Michigan and West Virginia.
In 1995, UtiliCorp launched EnergyOneSM, the first nationally branded line
of products and services for electric and gas utility customers. The EnergyOneSM
portfolio of value-added services and tailored energy solutions is a key part of
the Company's strategy to become a multinational provider of energy solutions to
its customers.
Aquila Energy Corporation ("Aquila"), a wholly-owned subsidiary of
UtiliCorp, markets natural gas in 45 states as well as parts of Canada and
Mexico. Aquila's 82% owned subsidiary, Aquila Gas Pipeline Corporation ("AGP"),
owns or has interests in 14 natural gas gathering systems and four natural gas
processing plants in Texas and Oklahoma. Through its UtilCo Group Inc.
subsidiary ("UtilCo"), the Company owns interests in 17 independent power
projects in seven states and Jamaica. UtiliCorp also markets natural gas in the
United Kingdom.
In Australia, UtiliCorp owns a 49.9% interest in United Energy Ltd. ("United
Energy"), the first Australian electric distribution company to be privatized.
United Energy serves approximately 533,000 customers in metropolitan Melbourne.
Utilicorp N.Z., Inc. ("UNZ"), a 79% owned subsidiary of the Company, owns a
29.4% interest in Power New Zealand Ltd. ("PNZ"), New Zealand's second largest
electric distribution utility, which serves approximately 214,000 customers in
the Auckland area. In addition, UNZ owns a 39% interest in WEL Energy Group Ltd.
("WEL"), a New Zealand electric distribution utility serving 65,000 customers in
the Waikato region.
The Company is actively seeking expansion through the prudent acquisition of
utility and other energy related properties, including electric and gas
operating utilities, electric generating assets and natural gas gathering and
processing facilities.
UTILICORP ENERGY DELIVERY
UtiliCorp Energy Delivery consists primarily of the Company's U.S. regulated
transmission and distribution operations, which operate in eight states. The
Company, through its UED operations, strives to be a competitively priced, safe
and reliable provider of electricity and natural gas to nearly 1.2 million
regulated customers.
GAS OPERATIONS
The Company's gas utilities serve 800,000 natural gas customers in 805
communities, and have experienced annual customer growth averaging 8.3%
(including acquisitions) since 1985. Over the same period, sales from natural
gas have grown an average of 26.8% per year and sales and transportation volume
has grown at an average of 36.7% per year. UED obtains most of its gas supply
from the Company's UEG business group. The recent operating results of
UtiliCorp's gas operations are included as a separate business segment, "Gas
Operations", in the Company's consolidated financial statements.
6
<PAGE>
ELECTRIC OPERATIONS
The Company's regulated electric utilities serve 437,000 electric customers
in 418 communities, and have experienced annual customer growth averaging 11.6%
(including acquisitions) per year since 1985. Over the same period, revenues
from electric sales have grown at an average rate of 12.0% per year and megawatt
hour ("MWH") sales have grown at an average rate of 15.0% per year. The recent
operating results of UtiliCorp's regulated electric operations are included as a
separate business segment, "Electric Operations", in the Company's consolidated
financial statements. The aforementioned data includes West Kootenay Power
Limited ("WKP"), the Company's Canadian subsidiary, which is operated
independently of UED. See "The Company--International".
The Company's sales by jurisdiction for the twelve months ended June 30,
1996 are shown below:
ELECTRIC OPERATIONS
<TABLE>
<CAPTION>
State/Province Sales %
- ------------------------------------------------------------------------ --------- ---------
<S> <C> <C>
Missouri................................................................ $ 289.7 48%
Kansas.................................................................. 116.0 19
British Columbia........................................................ 92.3 15
Colorado................................................................ 76.9 13
West Virginia........................................................... 28.3 5
--------- ---------
Total............................................................... $ 603.2 100%
--------- ---------
--------- ---------
</TABLE>
GAS OPERATIONS
<TABLE>
<CAPTION>
State Sales %
- ------------------------------------------------------------------------ --------- ---------
<S> <C> <C>
Minnesota............................................................... $ 152.3 22%
Michigan................................................................ 136.6 20
Nebraska................................................................ 122.8 19
Iowa.................................................................... 105.5 15
Kansas.................................................................. 74.6 11
Missouri................................................................ 50.6 7
Colorado................................................................ 22.4 3
West Virginia........................................................... 22.3 3
--------- ---------
Total............................................................... $ 687.1 100%
--------- ---------
--------- ---------
</TABLE>
UTILICORP ENERGY GROUP
The Company has two wholly-owned subsidiaries that comprise most of the
Company's energy-related businesses. These subsidiaries were organized to take
advantage of opportunities in the energy related marketplace. The first of these
subsidiaries, Aquila, is a gas and electricity marketing, and gas supply,
gathering and processing company doing business throughout most areas of North
America. The second, UtilCo, invests in non-regulated electric generating
assets. In addition, UEG is responsible for the management of the Company's
regulated generating facilities. Aquila is included as a separate business
segment, "Energy Related Businesses", in the Company's consolidated financial
statements. UtilCo's operating results are primarily included in "Equity and
Earnings of Investments and Partnerships" in the Company's consolidated
financial statements. The operating results of the regulated generating
facilities are included in the separate business segment "Electric Operations"
in the Company's consolidated financial statements.
AQUILA ENERGY CORPORATION
Aquila was established as a separate subsidiary of the Company in 1986 to
take advantage of the gas marketing and transportation opportunities created by
deregulation of the natural gas industry. Aquila has three business units:
Aquila Energy Marketing Corporation, Aquila Gas Pipeline Corporation ("AGP") and
Aquila Power Corporation ("APC").
7
<PAGE>
Aquila has a marketing, supply and transportation network consisting of
relationships with more than 1,000 gas producers and 500 local distribution
companies and end-users throughout the United States, Mexico and Canada. Through
more than 350 transportation agreements, Aquila has access to more than 17,500
gas receiving and delivery points on a network of 33 pipelines. From 1991 to
1995, Aquila's annual gas marketing volumes increased from 1,003 to 1,427
million cubic feet per day.
Aquila Gas Pipeline Corporation owns and operates a 3,300-mile intrastate
gas transmission and gathering network and four processing plants, located in
Texas and Oklahoma, that extract and sell natural gas liquids. AGP also markets
natural gas. In October 1993, Aquila sold, in an initial public offering, 5.4
million shares of AGP common stock for approximately $75 million representing
about 18% of the outstanding stock of AGP. The Company realized a gain of
approximately $48 million in connection with the offering. On July 1, 1996, AGP
(through AQP Holdings LP, a 98% owned subsidiary of AGP) completed the
acquisition of 15% of the outstanding capital stock of Oasis Pipeline Company
("Oasis") and related transportation rights from Dow Hydrocarbons and Resources
Inc. ("DHRI") for a purchase price of approximately $47 million. On September 4,
1996, AGP announced that it had agreed to acquire an additional 25% of Oasis for
approximately $84 million. The closing is expected to take place on or before
December 5, 1996. See "Recent Developments -- Oasis Pipeline Company."
In 1995, APC was formed as a subsidiary of Aquila to take advantage of
opportunities in wholesale electricity marketing and brokering. APC received
approval from the Federal Energy Regulatory Commission ("FERC") on January 11,
1995 to market electricity to wholesale customers such as utilities and
municipalities. Aquila expects that the electricity marketing industry will
expand rapidly as electricity futures trading is developed and the
infrastructure of this industry segment is established. For the quarter ended
June 30, 1996, APC's wholesale power sales totaled more than 700,000 MWH,
ranking it among the nation's 10 largest power marketers.
UTILCO GROUP INC.
UtilCo, formed in 1986, participates in the ownership and operation of
facilities in the independent and wholesale power generation market. The goals
of UtilCo are to acquire ownership positions in electric generation facilities
and to earn rates of return appropriate for the evolving independent power
industry. Consistent with the Company's strategy to minimize risk by
diversification, UtilCo has invested in generation facilities which are
geographically diverse, use a variety of fuels, and use proven technologies.
Additionally, each project is a producer of competitively priced wholesale power
in its geographic region and has a long-term market for its output. To date,
UtilCo has made investments in 17 projects located in seven states and Jamaica,
with a total net ownership of approximately 320 MW of generating capacity. All
of the projects are in commercial operation, with the exception of the Jamaica
project which the Company expects to enter commercial operation by the end of
the year.
REGULATED GENERATING ASSETS
UtiliCorp Energy Group also manages the Company's regulated electric supply
businesses in the U.S. The group principally oversees the operations of the
Company's regulated utility generating plants located in Colorado, Kansas and
Missouri. Collectively, the generating plants located in these three states have
the capacity to generate 1,580 megawatts ("MW") (net) of electricity. During
1995, these generating facilities produced 5,596 MWH of electricity, equaling
approximately 70% of all electricity sold domestically by the Company. UtiliCorp
purchased the remaining 30% of electricity sold by the Company domestically. Of
the electricity generated by the Company domestically, 87% was generated from
coal fired facilities and 13% from oil or gas fired facilities.
UTILICORP ENERGY SOLUTIONS
UtiliCorp Energy Solutions was formed to advance the Company's effort to
become a leading retailer of energy and energy related products and services.
The Company believes UES is positioned to provide value-added products and
services to its customers. UES intends to provide consumers with increased
energy efficiency, home security, appliance servicing and various other consumer
oriented products that should further strengthen and expand UtiliCorp's customer
relationship. In addition, the Company, through several
8
<PAGE>
subsidiaries, has developed alliances and entered into contracts which name UES
entities as the exclusive suppliers of gas in areas that allow competition. The
operating results for the businesses included in UES are not included as a
separate business segment in the Company's consolidated financial statements.
ENERGYONESM
In May 1995, UtiliCorp officially launched the EnergyOneSM brand.
EnergyOneSM is a unifying name for the products and services offered by the
Company. Prior to the EnergyOneSM brand launch, the Company marketed its
products and services using only the local utility division name or separate
subsidiary name.
Most UtiliCorp products and services now carry the EnergyOneSM brand.
EnergyOneSM is an integral part of the Company's strategy to bring brand
awareness and value-added services to the industry and thereby create a platform
for customer growth outside existing service territories. A sample of these
value-added services is shown below:
<TABLE>
<CAPTION>
Product & Service Category Description Product & Service Name
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Supply Solutions Assessing customers' energy needs - AdvisorOneSM Service
and providing customized solutions -Fuel and Power Management Services
Utility Solutions Helping customers design, finance, - Hot SpotSM Service
build and maintain generating - Power Services
facilities - Special Utility Services
- Perfect PowerSM Services
Technology & Equipment Solutions Designing, developing and installing - ProfileOneSM Service
emerging and proven technologies -Productivity & Efficiency Services
to lower customer energy costs -Environmental Energy Services
</TABLE>
In addition to developing a new portfolio of products and services in 1995,
the Company invested in its marketing infrastructure and sales organization to
support and sell EnergyOneSM products and services. The EnergyOneSM portfolio
includes: appliance and heating, ventilation and air-conditioning installation,
inspection and repair; new appliance financing; and security packages that allow
consumers to use EnergyOneSM to monitor their homes for potential intruders,
carbon monoxide poisoning, gas leaks and service interruptions. Management
believes EnergyOneSM positions the Company to be an industry leader in creating
and providing consumer services to make each consumer's home safer and more
energy efficient.
Since the launch of the EnergyOneSM brand in 1995, the Company, through its
subsidiaries, has entered into gas supply contracts with commercial customers
such as Ground Round Restaurants, Applebee's International, Apple South and
Service Merchandise. UtiliCorp subsidiaries, under the EnergyOneSM brand, have
developed alliances with The Retailers Bakery Association, The National
Association of Housing Cooperatives, The Asian-American Hotel Owners
Association, The Regional Energy Management Coalition (representing
approximately 100 Southern California school districts) and others. These
contracts and alliances allow the Company to be the exclusive provider of
natural gas in areas which allow competition, as well as allowing the Company to
be the electricity provider of choice as deregulation increases competition in
the electric industry.
INTERNATIONAL
The Company's international operations are managed separately from UED, UEG
and UES and include electric utility operations in Australia, New Zealand and
Canada, as well as gas marketing in the United Kingdom. UtiliCorp believes that
its experience in foreign utility operations will enable the Company to more
effectively manage increased competition in its domestic gas and electric
operations.
In September, 1995, UtiliCorp purchased a 49.9% interest in United Energy
for $258 million. United Energy is one of the three major electric distribution
utilities serving the metropolitan Melbourne, Australia area. United Energy's
service territory includes 533,000 customers.
9
<PAGE>
During 1995, UNZ purchased a 27.5% ownership interest in PNZ for
approximately $107 million, which was subsequently increased to 29.4% through
various purchases in 1996. PNZ serves 214,000 customers in the Auckland, New
Zealand metropolitan area and is the second largest electric distribution
utility in New Zealand. UNZ also owns a 39% interest in WEL, an electric
distribution utility serving 65,000 customers in the Waikato region of New
Zealand.
UtiliCorp operates an electric utility serving approximately 81,000
customers in British Columbia, Canada through WKP. WKP generates approximately
50% of its electricity needs from hydroelectric power and purchases the
remainder. WKP has some of the lowest generation costs in North America due to
the efficiency of hydroelectric power.
The Company has various natural gas marketing operations that sell natural
gas to wholesale and industrial customers in the United Kingdom. These
operations consist of United Gas Limited and joint ventures with three regional
electric companies.
COMPETITIVE POSITION
UtiliCorp believes that it is well-positioned to take advantage of the
opportunities presented by an increasingly deregulated and competitive market
for the generation and sale of electricity and by the convergence of the markets
for gas and electricity into a market for energy and energy services. UtiliCorp
believes that its competitive advantages include:
PRICE POSITION. The Company believes that, overall, its natural gas and
electricity is competitively priced within the geographic regions it serves. In
the year ended December 31, 1995, the Company's average billed bundled gas sale
per thousand cubic feet was $4.74 per residential customer, $4.13 per commercial
customer and $3.56 per industrial customer. In the year ended December 31, 1995,
the Company's average billed electric sales per kilowatt hour was 6.9 CENTS per
residential customer, 6.0 CENTS per commercial customer and 4.0 CENTS per
industrial customer.
DIVERSE ELECTRIC GENERATION FUEL MIX. Approximately 69% of its electric
generating capacity is coal-fired. In 1995, the fuel mix of the remaining
generation was 21% hydro (all located in Canada) and 10% gas and oil. The
Company purchased approximately 39% of its North American electricity
requirements in 1995. UtiliCorp neither owns nor operates nuclear generating
facilities.
DIVERSITY OF OPERATIONS AND CUSTOMERS SERVED. In the year ended December
31, 1995, North American gas and electric sales were derived from eight
different states and one Canadian province, with no more than 27.2% of the
combined gas and electric sales from a single jurisdiction. In the year ended
December 31, 1995, UtiliCorp's gas and electric utility sales were $616.8
million and $577.7 million, respectively. In the year ended December 31, 1995,
sales from gas operations were derived from residential, commercial and
industrial/other customers, 59%, 25% and 16%, respectively and sales from
electric operations were derived from residential, commercial and
industrial/other customers, 44%, 28% and 28%, respectively.
GAS AND ELECTRICITY MARKETING CAPABILITY. The Company believes that many of
the skills necessary to compete in the energy market of the future reside in the
marketing and brokering of gas and electricity. Aquila is a significant and
profitable gas marketer and in 1995 had gas marketing volumes of 1,427 million
cubic feet per day. In 1995, Aquila formed an electricity marketing subsidiary,
APC, allowing the Company to provide both natural gas and electric power
commodity services to its wholesale customers from an integrated wholesale
marketing perspective.
INNOVATIVE MANAGEMENT. UtiliCorp has assembled a management team with
significant experience both inside and outside the traditional electric and gas
utility industry, including telecommunications, airlines and consumer products.
STRATEGY
The domestic electric industry has become substantially more competitive as
federal and state regulators and legislators continue to take steps toward
deregulation. With the passage of the Public Utility Regulatory Policies Act of
1978 and the National Energy Policy Act of 1992, the electric utility industry
has already experienced a significant increase in the level of competition in
the market for the generation and
10
<PAGE>
sale of electricity. In addition, in 1996, the FERC issued Order 888, dealing
primarily with open access to transmission lines and recovery of stranded costs,
which the Company believes will further increase competition in the electric
industry.
The competitive forces affecting the domestic electric industry have also
affected the domestic gas industry. In 1992, FERC Order 636 shifted gas supply
responsibilities from traditional pipeline company sources to distribution
utilities and allowed customers to bypass a gas distribution utility's system by
directly connecting to a transportation pipeline. FERC Order 636 allowed
customers to negotiate separately for their supplies of gas.
To address future competitive challenges, UtiliCorp began, over two years
ago, to review its competitive position and opportunities. The Company assembled
a team of approximately 100 employees to assist in the development of
UtiliCorp's strategy to become a multinational provider of energy solutions to
its customers. Key elements of this strategy include:
ALIGNMENT OF BUSINESSES TO ADDRESS A CHANGING COMPETITIVE
ENVIRONMENT. UtiliCorp realigned its businesses during 1995 into four business
groups, UED, Power Services, Energy Resources and Marketing Services in order to
more efficiently and effectively serve its markets and customers. Recently, the
Company combined Power Services and Energy Resources into UEG and transitioned
Marketing Services into a system-wide enterprise support function. The Company
has also realigned its non-regulated retail activities under UES.
CONTINUED OPERATIONAL EXCELLENCE. In 1995, the Company began centralizing
business support functions previously performed separately by the operating
divisions. More than 200 employees in support functions moved to Kansas City and
almost 2,000 employees are doing jobs today that are significantly different
than a year ago. Management continues to focus closely on the overall cost
position of the Company.
UNIFYING ENERGYONESM BRAND. In 1995, the Company introduced a unifying
brand name, EnergyOneSM, under which it is implementing its strategy to market
products and services to consumers nationwide. EnergyOneSM was the first
national brand in the electric and gas industries. The Company believes that
this strategy will improve the Company's already strong competitive position in
an increasingly deregulated environment.
PURSUIT AND EXPLOITATION OF NEW TECHNOLOGY. UtiliCorp is seeking new
technologies to complement and enhance its portfolio of energy related products
and services. Examples include the Company's partnership with Novell, Inc. to
develop certain technologies and products to better manage energy consumption in
home and business environments and the Company's recently signed three year
licensing agreement with Adaptive Networks, Inc. that provides UtiliCorp access
to advanced powerline communications technologies.
EMPLOYEE OWNERSHIP AND COMMITMENT. Approximately 95% of the Company's
employees own stock in UtiliCorp. UtiliCorp management and employees own
approximately 12% of the Company's stock and a significant component of senior
management's compensation is related to the financial performance of the
Company. Management believes that employee-owners are more likely to create
value for customers and shareholders as a result of their personal interest in
the success of the Company.
MERGERS AND ACQUISITIONS. Growth through mergers and acquisitions has been
a major part of UtiliCorp's strategy for more than a decade. With over $1.6
billion of investments, mergers or acquisitions completed, the Company believes
it has become a more capable and diversified energy provider. Several years ago,
UtiliCorp expanded its growth strategy to include foreign markets, concentrating
on opportunities in English-speaking countries such as Australia, New Zealand,
the United Kingdom, and Canada.
11
<PAGE>
RECENT DEVELOPMENTS
TERMINATION OF MERGER AGREEMENT
On September 17, 1996, Kansas City Power & Light Company ("KCPL") terminated
the Amended and Restated Agreement and Plan of Merger (the "Agreement") among
KCPL, KC Merger Sub, Inc., the Company and KC United Corp., which would have
provided for the merger of the Company and KCPL.
Since KCPL's shareholders did not approve the merger between KCPL and the
Company, KCPL was required to pay the Company $5 million. The Company received
this termination payment on September 19, 1996. In connection with the
termination of the Agreement the Company anticipates that it will record against
third quarter earnings a pre-tax charge of approximately $11.0 million ($6.8
million after-tax or $.14 per fully diluted common share), net of the
termination fee payment.
ISSUANCE OF SENIOR NOTES
On October 23, 1996, the Company issued $100 million of unsecured Senior
Notes ("Senior Notes"). The Senior Notes bear an interest rate of 6.7% and will
mature on October 15, 2006. The proceeds of the issuance were used to reduce
short-term debt incurred for acquisitions, construction and debt retirements and
for general corporate purposes.
OASIS PIPELINE COMPANY
On July 1, 1996, AGP (through AQP Holdings LP, a 98% owned subsidiary of
AGP) completed the acquisition of 15% of the outstanding capital stock of Oasis
and related transportation rights from DHRI for a purchase price of
approximately $47.1 million in cash. The acquisition of Oasis was accounted for
by AGP using the purchase method and was reflected in the consolidated financial
statements of AGP using the equity method. The transportation rights related to
the 15% capital stock acquisition currently amount to approximately 120 million
cubic feet per day of firm intrastate transportation from the Waha hub (located
in west Texas) to the Katy hub (located in east Texas), and include the
opportunity to utilize excess capacity on an interruptible basis. In addition,
AGP and DHRI have entered into a long-term gas supply agreement whereby AGP will
supply DHRI with 100 million British thermal units per day of gas supply in the
Katy, Texas area at market rates. On September 4, 1996, AGP announced that it
had agreed to acquire an additional 25% of Oasis for approximately $84.0
million. The closing is expected to take place on or before December 5, 1996.
12
<PAGE>
USE OF PROCEEDS AND FINANCING PROGRAM
The net proceeds of this offering will be used to reduce the Company's
outstanding short-term debt incurred for acquisitions, construction and debt
retirements and for general corporate purposes.
At September 30, 1996, the Company had outstanding short-term borrowings
(excluding current maturities) of approximately $340.9 million with a weighted
average interest cost of 5.44%.
The Company's utility construction expenditures amounted to approximately
$109.4 million for the year ended December 31, 1995. Expenditures for
non-regulated generating assets, energy related businesses, international
businesses and other purposes totalled approximately $730 million for the year
ended December 31, 1995. Through June 30, 1996, the Company had expended
approximately $47.9 million for utility construction in addition to
approximately $73.5 million for investments in energy related and international
businesses and other purposes. The Company anticipates that cash provided from
operating activities will be sufficient to meet total cash requirements during
the 1997-2000 forecast period, excluding requirements for acquisitions,
non-regulated investments and debt retirements.
As discussed under "The Company", UtiliCorp is actively seeking to make
investments in and acquisitions of utility and other energy related properties.
Such acquisitions and investments, if made, may require additional permanent
financings. The nature and amount of such financings will depend on, among other
things, market conditions at the time of the financings.
COMMON STOCK DIVIDENDS AND PRICE RANGE
Cash dividends on the Common Stock of the Company and its predecessor have
been paid each year since 1939.
The current policy of the Board of Directors of the Company (the "Board of
Directors") is to pay cash dividends on the Common Stock on a quarterly basis.
Future cash dividends will necessarily be dependent upon the policies of the
Board of Directors and the Company's earnings, financial condition and other
factors. See "Description of Common Stock" for certain restrictions upon the
payment of cash dividends.
The Company has a Dividend Reinvestment and Common Stock Purchase Plan (the
"Plan") pursuant to which shareholders may automatically reinvest Common Stock
cash dividends in shares of the Company's Common Stock. The Plan currently
provides for reinvestment at 95% of applicable market prices. Investors and
existing shareholders may make optional cash purchases of Common Stock at 100%
of applicable market prices in amounts up to $10,000 per month.
The graph below illustrates the cash dividends per common share paid to
shareholders since 1984.
UTILICORP UNITED DIVIDEND HISTORY
EDGAR REPRESENTATION OF DATA POINTS USED IN PRINTED GRAPHIC
<TABLE>
<CAPTION>
UTILICORP UNITED
<S> <C>
Dividend History
1984 $0.64
1985 $0.77
1986 $0.87
1987 $0.93
1988 $1.04
1989 $1.42
1990 $1.46
1991 $1.54
1992 $1.60
1993 $1.62
1994 $1.70
1995 $1.72
1996 (Thru Sept.) $1.32
</TABLE>
- ------------
* Through September 30, 1996.
13
<PAGE>
UtiliCorp's Common Stock is listed on the New York, Pacific and Toronto
Stock Exchanges and is traded under the symbol UCU. The reported price range of
the Common Stock on the composite tape and dividends paid are shown in the
following table for the periods indicated.
<TABLE>
<CAPTION>
SALE PRICES
QUARTERLY CASH -----------------
DIVIDENDS HIGH LOW
--------------- ------- ------
<S> <C> <C> <C> <C> <C>
1994:
First Quarter............................................. $ .42 $ 31 7/8 $ 28 3/4
Second Quarter............................................ .42 31 1/2 27 3/4
Third Quarter............................................. .43 29 3/4 25 7/8
Fourth Quarter............................................ .43 27 7/8 25 1/8
-----
$ 1.70
-----
-----
1995:
First Quarter............................................. $ .43 $ 29 1/2 $ 26 3/8
Second Quarter............................................ .43 29 27 1/4
Third Quarter............................................. .43 28 1/2 26 5/8
Fourth Quarter............................................ .43 29 5/8 27 1/2
-----
$ 1.72
-----
-----
1996:
First Quarter............................................. $ .44 $ 30 1/2 $ 28 1/4
Second Quarter............................................ .44 29 1/8 25 3/4
Third Quarter............................................. .44 29 1/8 26 1/2
Fourth Quarter (through October 24, 1996)................. 28 1/4 27 1/8
-----
$ 1.32
-----
-----
</TABLE>
For a recent closing sale price of the Common Stock, as reported on the New
York Stock Exchange, see the cover page hereof.
On October 24, 1996, the Company had 41,026 common shareholders of record.
14
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited capitalization of the Company
as of June 30, 1996, and adjusted at that date to reflect: (a) the sale of the
5,250,000 shares of Common Stock offered pursuant to the offering (assuming net
proceeds to the Company of $26.50 per share and assuming the Underwriters' over-
allotment option is not exercised) (b) the issuance of $100 million Senior Notes
completed on October 23, 1996 as discussed under "Recent Developments", and (c)
the application of the net proceeds as described under "Use of Proceeds and
Financing Program."
<TABLE>
<CAPTION>
AS OF JUNE 30, 1996*
--------------------------------------
AS ADJUSTED
--------------------------
%
ACTUAL AMOUNT CAPITALIZATION
---------- --------- ---------------
(IN MILLIONS)
<S> <C> <C> <C>
First Mortgage Bonds...................................................... $ 20.6 $ 20.6
Pollution Control Bonds................................................... 12.3 12.3
Senior Notes.............................................................. 925.0 1,025.0
Convertible Subordinated Debentures....................................... 7.5 7.5
Secured Debentures........................................................ 68.5 68.5
Other Obligations (1)..................................................... 346.6 346.6
---------- ---------
Total Long-Term Debt.................................................... $ 1,380.5 $ 1,480.5 54%
---------- ---------
Preference Stock, without par value, authorized 10,000,000 shares,
outstanding:.............................................................
Not mandatorily redeemable, 1,000,000 shares $2.05 Series............... 25.0 25.0 1%
---------- ---------
Preferred Stock of Subsidiary............................................. .4 .4 --
---------- ---------
Company-Obligated Mandatorily Redeemable, Preferred Securities of a
Partnership.............................................................. 100.0 100.0 4%
---------- ---------
Common Shareholders' Equity
Common Stock, par value $1 per share, authorized 100,000,000 shares,
outstanding 46,962,985 and 52,212,985 shares........................... 47.0 52.2
Class A Common Stock, par value $1 per share, authorized 20,000,000
shares, none outstanding............................................... -- --
Premium on Capital Stock................................................ 826.7 960.2
Retained Earnings....................................................... 128.0 128.0
Translation Adjustment.................................................. (7.7) (7.7)
---------- ---------
Total Common Shareholders' Equity..................................... 994.0 1,132.7 41%
---------- --------- -----
Total Capitalization................................................ $ 2,499.9 $ 2,738.6 100.0%
---------- --------- -----
---------- --------- -----
Short-Term Debt, Including Current Maturities............................. $ 259.9 $ 21.2
---------- ---------
---------- ---------
</TABLE>
- ------------
* Unaudited
(1) Includes $239.1 million of obligations denominated in Australian dollars and
$67.5 million of obligations denominated in New Zealand dollars.
15
<PAGE>
SELECTED FINANCIAL INFORMATION
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
The following selected financial data of UtiliCorp should be read in
conjunction with the financial statements and notes thereto incorporated by
reference into this Prospectus and in conjunction with the "Recent Developments"
section.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------
1995 1994 1993 1992 1991
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales (1)............................................. $ 2,798.5 $ 2,398.1 $ 2,746.1 $ 2,339.0 $ 1,726.2
Income from Operations (2)(3)......................... 225.1 228.0 144.0 165.4 192.7
Net Income (4)........................................ 79.8 94.4 86.4 52.9 77.6
Earnings Available for Common Shares.................. 77.7 91.4 79.5 46.0 69.8
Primary Earnings Per Common Share..................... 1.72 2.08 1.95 1.32 2.37
Fully Diluted Earnings Per Common Share............... 1.71 2.06 1.92 1.31 2.27
Cash Dividends Per Common Share....................... 1.72 1.70 1.62 1.60 1.54
</TABLE>
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
JUNE 30, 1996*
------------------------
PRO FORMA (5) ACTUAL
------------- ---------
<S> <C> <C>
Sales................................................................................ $ 3,320.9 $ 3,320.9
Income from Operations............................................................... 230.5 230.5
Net Income (6)....................................................................... 109.5 104.1
Earnings Available for Common Shares................................................. 107.4 102.0
Primary Earnings Per Common Share.................................................... 2.09 2.22
Fully Diluted Earnings Per Common Share.............................................. 2.08 2.21
Cash Dividends Per Common Share...................................................... 1.74 1.74
</TABLE>
<TABLE>
<CAPTION>
AS OF JUNE 30, 1996*
------------------------- AS OF DECEMBER 31
AS ADJUSTED -----------------------------------------------------
(7) ACTUAL 1995 1994 1993 1992 1991
-------------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total Assets................. $ 3,915.1 $ 3,915.1 $ 3,885.9 $ 3,111.1 $ 2,850.5 $ 2,552.8 $ 2,387.3
Short-Term Debt (Including
Current Maturities)......... 21.2 259.9 303.7 321.2 71.8 236.8 114.5
Long-Term Debt............... 1,480.5 1,380.5 1,355.4 976.9 1,009.7 890.8 928.1
Preference and Preferred
Stock (8)................... 125.4 125.4 125.4 25.4 83.9 95.1 97.1
Common Shareholders'
Equity...................... 1,132.7 994.0 946.3 906.8 851.7 661.1 660.7
Book Value Per Common
Share....................... $ 21.69 $ 21.17 20.59 $ 20.24 $ 20.27 $ 18.66 $ 19.18
</TABLE>
- ------------------------
* Unaudited
(1) In 1995, the Company changed its method of accounting for domestic natural
gas trading operations to the mark-to-market method. This change in
accounting increased sales and income from operations by $29.8 million, net
income by $18.3 million ($.40 per fully diluted share) and total assets by
$201.9 million. This change in accounting has been reflected from January 1,
1995. The pro forma effect on prior periods is not material.
(2) In 1993, Aquila recorded a $69.8 million pre-tax restructuring charge (45.0
million after-tax) against earnings ($1.02 per fully diluted share) related
to a change in strategic direction.
(3) In 1995, the Company recorded a $34.6 million pre-tax charge ($19.6 million
after tax, or $.43 per fully diluted share) related to impaired assets.
16
<PAGE>
(4) In 1993, Aquila sold 18% of AGP in an initial public offering resulting in a
non-taxable gain of $47.8 million ($1.08 per fully diluted share).
(5) The pro forma financial data give effect to: (a) the sale of 5,250,000
shares of Common Stock offered pursuant to the offering (assuming net
proceeds to the Company of $26.50 per share and assuming the Underwriters'
over-allotment option is not exercised) and (b) the application of the net
proceeds as described under "Use of Proceeds and Financing Program" as
though they had occurred at the beginning of the period indicated. The pro
forma income statement impact for the issuance of $100 million of Senior
Notes as described in the "Recent Developments" has been excluded due to
immateriality.
(6) In 1996, the Company recorded an $11.8 million after-tax gain ($.25 per
fully diluted share) primarily from the effects of a sales lease transaction
at a UtilCo partnership.
(7) The as adjusted financial data give effect to: (a) the sale of the 5,250,000
shares of Common Stock offered pursuant to the offering (assuming net
proceeds to the Company of $26.50 per share and assuming the Underwriters'
over-allotment option is not exercised); (b) the application of the net
proceeds as described under "Use of Proceeds and Financing Program"; and (c)
the pro forma balance sheet impact for the issuance of $100 million of
Senior Notes as described in the "Recent Developments".
(8) Includes $100 million of Company-obligated mandatorily redeemable preferred
securities of a partnership, $25 million preference stock and approximately
$400,000 preferred stock of a Company subsidiary.
17
<PAGE>
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
general terms and provisions of the Company's Common Stock and does not purport
to be complete and is subject to and qualified in its entirety by reference to
the Certificate of Incorporation of the Company, as amended (the "Certificate of
Incorporation"), and the Company's Michigan Gas Utilities Indenture, dated as of
July 1, 1951, as amended and supplemented (the "MGU Indenture"), securing the
first mortgage bonds issued by Michigan Gas Utilities Company under the MGU
Indenture and assumed by the Company in connection with its acquisition of
Michigan Gas Utilities Company.
The total number of shares of capital stock which the Company has authority
to issue is 130,000,000 shares, consisting of 100,000,000 shares of Common
Stock, par value $1 per share, 10,000,000 shares of Preference Stock, without
par value, and 20,000,000 shares of Class A Common Stock, par value $1 per share
(the "Class A Common Stock").
DIVIDEND RIGHTS AND LIMITATIONS
Subject to the limitations referred to below and to the preferential
dividend rights of the Company's Preference Stock, dividends may be declared on
the Common Stock out of funds legally available therefor.
Cash dividends on and acquisition of the Company's capital stock are
restricted by provisions of the Company's MGU Indenture, and by the Preference
Stock provisions of the Certificate of Incorporation. Under the most restrictive
of these provisions, contained in the MGU Indenture, the Company may not declare
or pay any dividend (other than a dividend payable in shares of its capital
stock), whether in cash, stock or otherwise, or make any other distribution, on
or with respect to any class of its capital stock, or purchase or otherwise
acquire any shares of any class of its capital stock if, after giving effect
thereto, the sum of (i) the aggregate amount of all dividends declared and all
other distributions made (other than dividends declared or distributions made in
shares of its capital stock) on shares of its capital stock, of any class,
subsequent to December 31, 1984, plus (ii) the excess, if any, of the amount
applied to or set apart for the purchase or other acquisition of any shares of
its capital stock, of any class, subsequent to December 31, 1984, over such
amounts as shall have been received by the Company as the net cash proceeds of
sales of shares of its capital stock, of any class, subsequent to December 31,
1984, would exceed the sum of the net income of the Company since January 1,
1985, plus $50 million. In addition, the Company may not declare such dividends
unless it maintains a tangible net worth of at least $250 million and the
aggregate principal amount of its outstanding indebtedness does not exceed 70%
of its capitalization. None of the Company's retained earnings was restricted as
to payment of cash dividends on its capital stock as of June 30, 1996.
VOTING RIGHTS
The holders of Common Stock are entitled to one vote for each share held of
record, and are entitled under the Certificate of Incorporation to cumulative
voting in the election of directors. The Board of Directors is divided into
three classes and each year one class is elected to serve a three-year term.
Such classification increases the number of votes necessary under cumulative
voting to elect a director.
If dividends on the Preference Stock (which are cumulative) are in default
in an amount equal to one and one-half times an annual dividend or more, holders
of the Preference Stock, voting separately as a class, are entitled to elect two
directors until all dividend arrearages have been paid.
The consent of the holders of either a majority or two-thirds of the
outstanding shares of Preference Stock (depending on the matter) is required to
effect such matters as the creation or authorization of any stock ranking prior
thereto or on a parity therewith, the creation of authorization of any
securities convertible into shares of stock ranking prior thereto or on a parity
therewith, or any increase in the total authorized amount of Preference Stock or
of any class of stock ranking prior thereto or on a parity therewith.
CHANGE IN CONTROL AND BUSINESS TRANSACTION PROVISIONS
The Certificate of Incorporation (i) provides for the classification of
directors, with three-year staggered terms, and a requirement of an affirmative
vote of 80% of the outstanding shares of Common Stock to remove the entire Board
of Directors; (ii) requires an affirmative vote of 80% of the outstanding shares
of
18
<PAGE>
Common Stock (or the approval of two-thirds of the directors) to change the
provisions of the Bylaws relating to the classified Board of Directors; and
(iii) requires the affirmative vote of 80% of the outstanding shares of Common
Stock to approve certain Business Transactions (as defined therein) with a
Related Person (defined below), unless approved by a majority vote of the
Continuing Directors (as defined therein) or unless a certain minimum price
requirement is met. Such provisions may have significant effects on the ability
of stockholders of the Company to change the composition of an incumbent Board
of Directors or to benefit from certain transactions which are opposed by an
incumbent Board of Directors.
The term "Related Person" is defined in the Certificate of Incorporation to
include a security holder who owns 20% or more of the outstanding shares of the
Common Stock. The above provisions dealing with Business Transactions involving
the Company and a Related Person may discriminate against a security holder who
becomes a Related Person by reason of ownership of such amount of Common Stock.
CLASS A COMMON STOCK
The Board of Directors, without further action by the stockholders, may
issue Class A Common Stock from time to time, in one or more series, and by
resolution may fix the voting powers (full or limited, or no voting powers) and
such designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions of the Class A
Common Stock of each such series, including (a) the distinctive designation of
each series and the number of shares that will constitute each series, (b) the
dividend rate, or manner of determination of the dividend, for such series, (c)
the price at which, and the terms and conditions upon which, the shares of such
series may be made redeemable, (d) the purchase or sinking fund provisions, if
any, for the purchase or redemption of shares of such series, (e) the
preferential amount payable upon each share of such series in the event of the
liquidation, dissolution or winding up of the Company, (f) the voting rights, if
any, of shares of such series, (g) the terms and conditions, if any, upon which
shares of such series may be converted into shares of other classes or series of
shares of the Company or other securities, (h) the relative rights of priority
of each series of Class A Common Stock as to dividends and assets, and (i) any
other special rights, or powers, preferences and privileges, and qualification
or limitation thereof.
The Board of Directors may issue a series with rights more or less favorable
with respect to dividends, liquidation and voting than those held by the holders
of the Common Stock. The Class A Common Stock may also be used as an
anti-takeover device by the Company since the Class A Common Stock may be issued
with "super voting" rights and placed in the control of parties friendly to the
current management, thus prolonging management's control of the Company. The New
York Stock Exchange has in effect a rule which restricts the ability of the
Company to issue Class A Common Stock with such super voting rights. There are
no shares of Class A Common Stock issued or outstanding on the date hereof and
the Company has no present intention of issuing such shares.
MISCELLANEOUS
The outstanding Common Stock of the Company is, and the Common Stock offered
pursuant to the offering when issued and paid for will be, fully paid and
non-assessable. Holders of Common Stock do not have any preemptive rights. On
liquidation, after payment of the liquidation preferences of the Preference
Stock, the holders of the Common Stock will be entitled to receive all amounts
remaining for distribution to stockholders.
The Co-Transfer Agents for the Common Stock are First Chicago Trust Company
of New York, New York, New York, UMB Bank, N.A., Kansas City, Missouri and The
R-M Trust Company, Toronto, Ontario, Canada. The Registrar for the Common Stock
is First Chicago Trust Company of New York, New York, New York.
The outstanding shares of the Common Stock are, and the shares of Common
Stock offered pursuant to the offering will be, listed on the New York, Pacific
and Toronto Stock Exchanges.
19
<PAGE>
UNDERWRITING
Under the terms and conditions of the Underwriting Agreement, the
underwriters (the "Underwriters") named below, for whom Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Dean Witter Reynolds Inc., Goldman, Sachs & Co.,
J.P. Morgan Securities Inc., and PaineWebber Incorporated are acting as
representatives (the "Representatives"), have severally agreed to purchase and
the Company has agreed to sell to each Underwriter, shares of Common Stock which
equal the number of shares set forth opposite the name of such Underwriter
below:
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ------------------------------------------------------------------------------------- -----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...............................................................
Dean Witter Reynolds Inc.............................................................
Goldman, Sachs & Co..................................................................
J.P. Morgan Securities Inc...........................................................
PaineWebber Incorporated.............................................................
-----------------
Total...................................................................... 5,250,000
-----------------
-----------------
</TABLE>
The Company has been advised by the Representatives that the Underwriters
propose to offer part of the shares to the public at the public offering price
set forth on the cover page hereof and part to certain dealers at a price which
represents a concession not in excess of $ per share below the
public offering price. The Underwriters may allow, and such dealers may reallow,
a concession not in excess of $ per share to certain other
underwriters or to certain other brokers or dealers. The nature of the
Underwriters' obligations is such that they are committed to take and pay for
all of the shares of Common Stock offered hereby if any are taken, provided
that, under circumstances involving a default of any of the Underwriters, less
than all of the Common Stock offered hereby may be purchased.
The Company has granted an option to the Underwriters, exercisable within 30
days after the date of the Underwriting Agreement to purchase up to a maximum of
750,000 additional shares of Common Stock at the same price per share that the
Company will receive for shares being purchased by the Underwriters. The
Underwriters may purchase such shares only to cover over-allotments made in
connection with the sale of the 5,250,000 shares shown in the foregoing table.
If the Underwriters purchase any of the additional shares of Common Stock which
are subject to the over-allotment option, each of the Underwriters will be
committed, subject to certain conditions, to purchase approximately the same
percentage thereof which the number of shares to be purchased by it as shown in
the foregoing table bears to 5,250,000.
The Company and the Underwriters have agreed to indemnify each other against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
The Company has agreed that, for a period of 120 days after the date of this
Prospectus, it will not, without the prior written consent of the
Representatives, offer for sale, sell or otherwise dispose of any shares of
Common Stock, or sell or grant options, rights or warrants with respect to any
shares of Common Stock or other securities convertible into shares of Common
Stock (other than shares of Common Stock and options issuable pursuant to
Company employee and director plans and Company dividend and interest
reinvestment and stock purchase plans).
20
<PAGE>
LEGAL OPINIONS
The legality of the shares offered pursuant to the offering will be passed
upon for the Company by Blackwell Sanders Matheny Weary & Lombardi L.C., Two
Pershing Square, 2300 Main Street, Kansas City, Missouri 64108, and for the
Underwriters by Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New
York, New York 10005. Milbank, Tweed, Hadley & McCloy from time to time provides
legal services to the Company.
EXPERTS
The consolidated financial statements and schedules included in the
Company's Annual Report on Form 10-K for the years ended December 31, 1995, 1994
and 1993, which are incorporated by reference in this Prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in giving said reports.
The financial statements of United Energy included in the Company's Form
8-K/A, dated April 1, 1996, for the period 11 May 1994 to 30 June 1995, which
are incorporated by reference in this Prospectus, have been audited by Arthur
Andersen, independent public accountants, as indicated in their report with
respect thereto, and are incorporated herein in reliance upon the authority of
said firm as experts in giving said reports.
21
<PAGE>
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION 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 SECURITY OTHER THAN THE SHARES OF COMMON STOCK OFFERED HEREBY, NOR DOES
IT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS
UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
-------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information.......................... 2
Incorporation of Certain Documents by
Reference..................................... 2
Prospectus Summary............................. 3
The Company.................................... 6
Recent Developments............................ 12
Use of Proceeds and Financing Program.......... 13
Common Stock Dividends and Price Range......... 13
Capitalization................................. 15
Selected Financial Information................. 16
Description of Common Stock.................... 18
Underwriting................................... 20
Legal Opinions................................. 21
Experts........................................ 21
</TABLE>
5,250,000 SHARES
[LOGO]
[UtiliCorp Logo]
COMMON STOCK
"$1.00 PAR VALUE"
----------------
PROSPECTUS
-------------------
MERRILL LYNCH & CO.
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN & CO.
PAINEWEBBER INCORPORATED
, 1996
- -------------------------------------------
-------------------------------------------
- -------------------------------------------
-------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of estimated expenses to be paid by
the Registrant in connection with the issuance and sale of the Common Stock
being registered.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 50,455
Stock Exchange listing fees....................................... 21,000
Blue Sky fees and expenses........................................ 5,000
Accounting fees and expenses...................................... 25,000
Printing fees..................................................... 160,000
Legal fees and expenses........................................... 50,000
Transfer Agent and Registrar fees................................. 5,000
Miscellaneous..................................................... 33,545
---------
Total......................................................... $ 350,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law confers broad powers
upon corporations incorporated in that State with respect to indemnification of
any person against liabilities incurred by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation or other business entity. The provisions of Section 145 are
not exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement or otherwise.
The Certificate of Incorporation of the Company contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
fullest extent permitted by the Delaware General Corporation Law.
There is in effect for the Company a dual phase insurance policy providing
directors and officers with indemnification, subject to certain exclusions and
to the extent not otherwise indemnified by the Company, against loss (including
expenses incurred in the defense of actions, suits or proceedings in connection
therewith) arising from any negligent act, error, omission or breach of duty
while acting in their capacity as directors and officers of the Company. The
policy also reimburses the Company for liability incurred in the indemnification
of its directors and officers.
There is also in effect a Bylaw provision entitling officers and directors
to be indemnified by the Company against costs or expenses, attorneys' fees,
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred in connection with any action, suit or proceeding, including actions
brought by or in the right of the Company, to which such persons are made or
threatened to be made a party, by reason of their being a director or officer.
Such right, however, may be made only as authorized by (i) a majority vote of a
quorum of disinterested directors, or (ii) if such quorum is not obtainable or,
if obtainable, a majority thereof so directs, by independent legal counsel, or
(iii) by the stockholders of the Company, upon a determination that the person
seeking indemnification acted in good faith and in the manner that he or she
reasonably believed to be in or not opposed to the Company's best interest, or,
if the action is criminal in nature, upon a determination that the person
seeking indemnification had no reasonable cause to believe that such person's
conduct was unlawful. This provision also requires the Company, upon
authorization by the Board of Directors, to advance costs and expenses,
including attorneys' fees, reasonably incurred in defending such actions;
provided, that any person seeking such an advance first provide the Company with
an undertaking to repay any amount as to which it may be determined such person
is not entitled.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
1 -- Form of Underwriting Agreement.
*2(a) -- Asset Purchase Agreement, dated August 7, 1995, between Power Partnership PTY LTD and United Energy
Limited. (Exhibit 2.1 to UtiliCorp United Inc.'s Current Report on Form 8-K, dated September 13,
1995.)
*2(b) -- Asset Sale Agreement, dated August 7, 1995, between United Energy Limited and Power Partnership PTY
LTD. (Exhibit 2.2 to UtiliCorp United Inc.'s Current Report on Form 8-K, dated September 13, 1995.)
*2(c) -- Share Sale Agreement, dated August 7, 1995, between the State of Victoria, Power Partnership PTY LTD
and the Covenantors named therein. (Exhibit 2.3 to UtiliCorp United Inc.'s Current Report on Form
8-K, dated September 13, 1995.)
*4(a)(1) -- Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to UtiliCorp United Inc.'s Annual
Report on Form 10-K for the fiscal year ended December 31, 1991.)
*4(a)(2) -- Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to
Registration Statement No. 33-16990, filed September 3, 1987.)
*4(a)(3) -- Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 4(a)(5) to
Registration Statement No. 33-50260, filed July 31, 1992.)
*4(a)(4) -- Certificate of Designation of the Preference Stock (Cumulative), $2.05 Series. (Exhibit 3(a)(4) to
UtiliCorp United Inc.'s Annual Report on Form 10-K for the year ended December 31, 1991.)
*4(b) -- Bylaws of the Registrant, as amended. (Exhibit 3 to UtiliCorp United Inc.'s Quarterly Report on Form
10-Q for the quarter ended March 31, 1995.)
*4(c) -- Twentieth Supplemental Indenture, dated as of May 26, 1989, Supplement to Indenture of Mortgage and
Deed of Trust, dated July 1, 1951. (Exhibit 4(d) to Registration Statement No. 33-45382, filed
January 30, 1992.)
*4(d)(1) -- Indenture, dated as of November 1, 1990, between the Company and The First National Bank of Chicago,
Trustee. (Exhibit 4(a) to the Company's Current Report on Form 8-K, dated November 30, 1990.)
*4(d)(2) -- First Supplemental Indenture, dated as of November 27, 1990. (Exhibit 4(b) to the Companys Current
Report on Form 8-K, dated November 30, 1990.)
*4(d)(3) -- Second Supplemental Indenture, dated as of November 15, 1991. (Exhibit 4(a) to UtiliCorp United
Inc.'s Current Report on Form 8-K, dated December 19, 1991.)
*4(d)(4) -- Third Supplemental Indenture, dated as of January 15, 1992. (Exhibit 4(c)(4) to the Company's Annual
Report on Form 10-K for the year ended December 31, 1991.)
*4(d)(5) -- Fourth Supplemental Indenture, dated as of February 24, 1993. (Exhibit 4(c)(5) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1992.)
*4(d)(6) -- Fifth Supplemental Indenture, dated as of April 1, 1993. (Exhibit 4(c)(6) to the Company's Annual
Report on Form 10-K for the year ended December 31, 1993.)
*4(d)(7) -- Sixth Supplemental Indenture, dated as of November 1, 1994. (Exhibit 4(d)(7) to the Company's
Registration Statement No. 33-57167, filed January 4, 1995.)
*4(d)(8) -- Seventh Supplemental Indenture, dated as of June 1, 1995. (Exhibit 4 to the Company's Quarterly
Report on Form 10-Q for the period ended June 30, 1995.)
4(d)(9) -- Eighth Supplemental Indenture, dated as of October 1, 1996.
Long-term debt instruments of the Registrant in amounts not exceeding 10 percent of the total assets
of the Registrant and its subsidiaries on a consolidated basis will be furnished to the Commission
upon request.
5 -- Opinion of Blackwell Sanders Matheny Weary & Lombardi L.C.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
23(a) -- Consent of Arthur Andersen LLP, Kansas City, Missouri
23(b) -- Consent of Arthur Andersen, Melbourne, Australia
23(c) -- Consent of Blackwell Sanders Matheny Weary & Lombardi L.C. (included in opinion filed as Exhibit 5).
24 -- Powers of Attorney executed by certain officers and a majority of the Board of Directors of UtiliCorp
United Inc.
</TABLE>
- ------------
*Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 New York, State of New York, on the 25th day of
October, 1996.
UTILICORP UNITED INC.
By: _________/s/_DALE J. WOLF_________
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 25th day of October, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------ ---------------------------------------------------------------
<C> <S>
RICHARD C. GREEN, JR.* Chairman of the Board, President and Chief Executive Officer
-------------------------------------- (Principal Executive Officer)
Richard C. Green, Jr.
TERRY G. WESTBROOK* Senior Vice President, Chief Financial Officer (Principal
-------------------------------------- Financial and Accounting Officer)
Terry G. Westbrook
RICHARD C. GREEN, JR.* A Majority of the Board of Directors
DON R. ARMACOST*
JOHN R. BAKER*
HERMAN CAIN*
ROBERT K. GREEN*
IRVINE O. HOCKADAY, JR.*
ROBERT F. JACKSON, JR.*
L. PATTON KLINE*
AVIS G. TUCKER*
*By: /s/ DALE J. WOLF As attorney-in-fact for the above-named officers and directors
--------------------------------- pursuant to powers of attorney duly executed by such persons
Dale J. Wolf
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED PAGE UPON
WHICH EXHIBIT
EXHIBIT DESCRIPTION APPEARS
- --------- ----------------------------------------------------------------------------------- -------------------
<S> <C> <C> <C>
1 -- Form of Underwriting Agreement.....................................................
*2(a) -- Asset Purchase Agreement, dated August 7, 1995, between Power Partnership PTY LTD
and United Energy Limited. (Exhibit 2.1 to UtiliCorp United Inc.'s Current Report
on Form 8-K, dated September 13, 1995.)...........................................
*2(b) -- Asset Sale Agreement, dated August 7, 1995, between United Energy Limited and Power
Partnership PTY LTD. (Exhibit 2.2 to UtiliCorp United Inc.'s Current Report on
Form 8-K, dated September 13, 1995.)..............................................
*2(c) -- Share Sale Agreement, dated August 7, 1995, between the State of Victoria, Power
Partnership PTY LTD and the Covenantors named therein. (Exhibit 2.3 to UtiliCorp
United Inc.'s Current Report on Form 8-K, dated September 13, 1995.)..............
*4(a)(1) -- Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to UtiliCorp
United Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31,
1991.)............................................................................
*4(a)(2) -- Certificate of Amendment to Certificate of Incorporation of the Registrant.
(Exhibit 4(a)(1) to Registration Statement No. 33-16990, filed September 3,
1987.)............................................................................
*4(a)(3) -- Certificate of Amendment to Certificate of Incorporation of the Registrant.
(Exhibit 4(a)(5) to Registration Statement No. 33-50260, filed July 31, 1992.)....
*4(a)(4) -- Certificate of Designation of the Preference Stock (Cumulative), $2.05 Series.
(Exhibit 3(a)(4) to UtiliCorp United Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1991.)....................................................
*4(b) -- Bylaws of the Registrant, as amended. (Exhibit 3 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.)..............
*4(c) -- Twentieth Supplemental Indenture, dated as of May 26, 1989, Supplement to Indenture
of Mortgage and Deed of Trust, dated July 1, 1951. (Exhibit 4(d) to Registration
Statement No. 33-45382, filed January 30, 1992.)..................................
*4(d)(1) -- Indenture, dated as of November 1, 1990, between the Company and The First National
Bank of Chicago, Trustee. (Exhibit 4(a) to the Company's Current Report on Form
8-K, dated November 30, 1990.)....................................................
*4(d)(2) -- First Supplemental Indenture, dated as of November 27, 1990. (Exhibit 4(b) to the
Company's Current Report on Form 8-K, dated November 30, 1990.)...................
*4(d)(3) -- Second Supplemental Indenture, dated as of November 15, 1991. (Exhibit 4(a) to
UtiliCorp United Inc.'s Current Report on Form 8-K, dated December 19, 1991.).....
*4(d)(4) -- Third Supplemental Indenture, dated as of January 15, 1992. (Exhibit 4(c)(4) to the
Company's Annual Report on Form 10-K for the year ended December 31, 1991.).......
*4(d)(5) -- Fourth Supplemental Indenture, dated as of February 24, 1993. (Exhibit 4(c)(5) to
the Company's Annual Report on Form 10-K for the year ended December 31, 1992.)...
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED PAGE UPON
WHICH EXHIBIT
EXHIBIT DESCRIPTION APPEARS
- --------- ----------------------------------------------------------------------------------- -------------------
<S> <C> <C> <C>
*4(d)(6) -- Fifth Supplemental Indenture, dated as of April 1, 1993. (Exhibit 4(c)(6) to the
Company's Annual Report on Form 10-K for the year ended December 31, 1993.).......
*4(d)(7) -- Sixth Supplemental Indenture, dated as of November 1, 1994. (Exhibit 4(d)(7) to the
Company's Registration Statement No. 33-57167, filed January 4, 1995.)............
*4(d)(8) -- Seventh Supplemental Indenture, dated as of June 1, 1995. (Exhibit 4 to the
Company's Quarterly Report on Form 10-Q for the period ended June 30, 1995.)......
4(d)(9) -- Eighth Supplemental Indenture, dated as of October 1, 1996.........................
Long-term debt instruments of the Registrant in amounts not exceeding 10 percent of
the total assets of the Registrant and its subsidiaries on a consolidated basis
will be furnished to the Commission upon request..................................
5 -- Opinion of Blackwell Sanders Matheny Weary & Lombardi L.C. ........................
23(a) -- Consent of Arthur Andersen LLP, Kansas City, Missouri..............................
23(b) -- Consent of Arthur Andersen, Melbourne, Australia...................................
23(c) -- Consent of Blackwell Sanders Matheny Weary & Lombardi L.C. (included in opinion
filed as Exhibit 5)...............................................................
24 -- Powers of Attorney executed by certain officers and a majority of the Board of
Directors of UtiliCorp United Inc. ...............................................
</TABLE>
- ------------
*Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
II-6
<PAGE>
5,250,000 SHARES
UTILICORP UNITED INC.
COMMON STOCK
UNDERWRITING AGREEMENT
November , 1996
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
PAINEWEBBER INCORPORATED
As Representatives of the Several Underwriters
c/o MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
World Financial Center, North Tower
New York, New York 10281
Dear Sirs:
UtiliCorp United Inc., a Delaware corporation (the "Company"), proposes to
issue and sell an aggregate of 5,250,000 shares (the "Firm Shares") of its
common stock, (par value $1 per share) (the "Common Stock"), to the several
Underwriters named in Schedule I hereto (the "Underwriters"). The Company also
proposes to sell to the Underwriters, upon the terms and conditions set forth in
Section 2 hereof, up to an additional 750,000 shares (the "Additional Shares")
of Common Stock. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares".
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Shares by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, or, if the registration statement
became effective prior to the execution of
<PAGE>
this Agreement, as supplemented or amended prior to the execution of this
Agreement. If it is contemplated, at the time this Agreement is executed, that
a post-effective amendment to the registration statement will be filed and must
be declared effective before the offering of the Shares may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement, or, if the prospectus included in the Registration
Statement omits information in reliance on Rule 430A under the Act and such
information is included in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, the term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement as
supplemented by the addition of the Rule 430A information contained in the
prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date of
the Prospectus. Any reference in this Agreement to the registration statement,
the Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which at the time
are incorporated by reference in the registration statement, the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment or
supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $ per Share (the
"purchase price per share"), the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm Shares
increased as set forth in Section 10 hereof).
The Company also agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the representations,
herein warranties and agreements of the Company
2
<PAGE>
contained and subject to all the terms and conditions set forth herein,
the Underwriters shall have the right to purchase from the Company, at the
purchase price per share, pursuant to an option (the "over-allotment option")
which may be exercised at any time and from time to time prior to 9:00 P.M., New
York City time, on the 30th day after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of 750,000 Additional Shares. Additional Shares may be purchased only
for the purpose of covering over-allotments made in connection with the offering
of the Firm Shares. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Shares (subject to such adjustments as you may determine in
order to avoid fractional shares) which bears the same proportion to the number
of Additional Shares to be purchased by the Underwriters as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof) bears to
the aggregate number of Firm Shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Milbank, Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York, NY 10005,
at 10:00 A.M., New York City time, on , 1996 (the "Closing Date").
The place of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of
Milbank, Tweed, Hadley & McCloy at such time on such date (the "Option Closing
Date"), which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than two nor later than ten business
days after the giving of the notice hereinafter referred to, as shall be
specified in a written notice from you on behalf of the Underwriters to the
Company of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Shares may be varied by agreement
between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or
3
<PAGE>
any Option Closing Date, as the case may be. Such certificates shall be made
available to you in New York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next preceding the Closing
Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be purchased hereunder
shall be delivered to you on the Closing Date or the Option Closing Date, as the
case may be, against payment of the purchase price therefor by certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the order of the Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as reasonably practicable and will advise
you promptly after it receives notice thereof and, if requested by you, will
confirm such advice in writing, when the Registration Statement or such
post-effective amendment has become effective.
(b) The Company will advise you promptly after it receives notice
thereof and, if requested by you, will confirm such advice in writing: (i) of
any request by the Commission for amendment of or a supplement to the
Registration Statement, any Prepricing Prospectus or the Prospectus or for
additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you, without charge (i) six signed
copies of the registration statement as originally filed with the Commission and
of each amendment thereto, including
4
<PAGE>
financial statements and all exhibits to the registration statement, (ii) such
number of conformed copies of the registration statement as originally filed and
of each amendment thereto, but without exhibits, as you may request, (iii) such
number of copies of the Incorporated Documents, without exhibits, as you may
request, and (iv) four copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior to the
end of the period of time referred to in the first sentence in subsection (f)
below, file any document which, upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by all dealers to whom Shares
may be sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Prospectus (or to file under the Exchange Act any document which, upon
filing, becomes an Incorporated Document) in order to comply with the Act or any
other law, the Company will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will expeditiously
5
<PAGE>
furnish to the Underwriters and dealers a reasonable number of copies thereof.
In the event that the Company and you, as Representatives of the several
Underwriters, agree that the Prospectus should be amended or supplemented, the
Company, if requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company Rule 158).
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the
Shares substantially in accordance with the description set forth in the
Prospectus.
6
<PAGE>
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock, for a period of 120 days after the
date of the Prospectus, without the prior written consent of Merrill Lynch,
Pierce, Fenner & Smith Incorporated, other than shares and options issued
pursuant to Company employee and director plans and Company dividend and
interest reinvestment and stock purchase plans.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(o) The Company will cause the shares of Common Stock which it agrees
to sell under this Agreement to be listed, subject only to official notice of
issuance, on the New York, Pacific and Toronto Stock Exchanges on or before the
Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act except that this representation
and warranty does not apply to statements in or omissions from such Prepricing
Prospectus (or any amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by or on behalf of any Underwriter through you expressly for use
therein. The Commission has not issued any order preventing or suspending the
use of any Prepricing Prospectus.
(b) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The registration
statement in the form in which it became or becomes effective and also in such
form as it may be when any post-effective amendment thereto shall become
effective and the prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and will not at any such
times contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of
7
<PAGE>
the circumstances under which they were made) not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the registration statement or the prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by or on behalf of any Underwriter through you expressly for use
therein.
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder, and any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) Neither the Company nor any of its subsidiaries (each a
"Subsidiary and, collectively, the "Subsidiaries") has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and its
Subsidiaries taken as a whole, or sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prepricing Prospectus and the Prospectus; and, since the
respective dates as of which information is given in the Prepricing Prospectus
and the Prospectus, there has not been any material change in the capital stock,
or material increase in the short-term debt or long-term debt, of the Company or
any of its Subsidiaries or any material adverse change, or any development
involving, or which may reasonably be expected to involve, a prospective
material adverse change in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prepricing Prospectuses and the Prospectus;
(e) This Agreement has been duly authorized by the Company and
conforms in all material respects to the description thereof in the Prepricing
Prospectus and the Prospectus;
(f) The Shares, upon issuance and delivery and payment therefor in
the manner described herein, will be duly authorized,
8
<PAGE>
validly issued, fully paid and nonassessable. The Shares conform to the
description thereof in the Prepricing Prospectus and the Prospectus. There are
no preemptive or other rights to subscribe for or to purchase, or any
restriction upon the transfer of, any shares of the Company's capital stock,
including the Shares when issued, pursuant to the Company's certificate of
incorporation, bylaws or other governing documents or any agreement or other
instrument to which the Company or any of its Subsidiaries is a party or by
which it may be bound. Neither the filing of the Registration Statement nor the
offering or sale of the Shares as contemplated by this Agreement gives rise to
any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of the Company's capital stock;
(g) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business conducted
by it or the location of the properties owned or leased by it makes such
qualification necessary. All of the outstanding shares of capital stock of the
Company and all of the outstanding shares of capital stock of each Subsidiary,
have been duly authorized and validly issued, are fully paid and nonassessable.
All of the outstanding shares of capital stock of each Subsidiary are owned
directly or indirectly by the Company [(except for United Gas Company Limited
and UtiliCorp N.Z., Inc., of which the Company owns seventy-five and
seventy-nine percent of the outstanding shares of capital stock, respectively)],
free and clear of any claim, lien, encumbrance or security interest except as
otherwise disclosed in writing to the Representatives;
(h) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution or delivery hereof or consummation of the
transactions contemplated hereby result in a violation of, or constitute a
default under, the certificate of incorporation, bylaws or other governing
documents of the Company or any of its Subsidiaries, or any agreement, indenture
or other instrument to which the Company or any of its Subsidiaries is a party
or by which any of them is bound, or to which any of their properties is
subject, nor will the performance by the Company of its obligations hereunder
violate any law, rule, administrative regulation or decree of any court or any
governmental agency or body having jurisdiction over the Company, its
Subsidiaries or any of their properties, or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the
Company or any of its Subsidiaries which would be material to the Company and
its Subsidiaries taken as a whole. Except for permits and similar
authorizations required under the Act, the Federal Power Act, the laws of the
States of Colorado, Michigan and West Virginia
9
<PAGE>
and the securities or Blue Sky laws of certain jurisdictions, and except for
such permits and authorizations as have been obtained, no consent, approval,
authorization or order of any court, governmental agency or body or financial
institution is required in connection with the consummation of the transactions
contemplated by this Agreement;
(i) The Company and its Subsidiaries have good and marketable title
to all material real and personal property owned by them, in each case free and
clear of all mortgages, liens, encumbrances and defects, except such as are
described or referred to in the Prepricing Prospectus and the Prospectus or such
as do not materially affect the values of such property and do not interfere
with the use made or proposed to be made of such property by the Company or such
Subsidiaries; and any real property and buildings held under lease by the
Company and its Subsidiaries are held by them under valid, existing and
enforceable leases with such exceptions as are not material and do not interfere
with the use made or proposed to be made of such property and buildings by the
Company or such Subsidiaries;
(j) Except as described in the Prepricing Prospectus and the
Prospectus, there is no litigation or governmental proceeding to which the
Company or any of its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
Subsidiaries which might result in any material adverse change in the condition
(financial or other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(k) Neither the Company nor any Subsidiary is in violation of any
law, ordinance, governmental rule or regulation or court decree to which it is
subject which violation would have a material adverse effect on the condition
(financial or other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(l) The accountants who have certified or shall certify the financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus (or any amendment or supplement thereto) are independent
public accountants as required by the Act.
(m) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted
10
<PAGE>
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical information
and data included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) are accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company and the Subsidiaries.
(n) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute any offering material in connection with the offering and
sale of the Shares other than the Registration Statement, the Prepricing
Prospectus, the Prospectus or other materials, if any, permitted by the Act.
(o) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(p) The Company has complied with all provisions of Florida Statutes,
517.075, relating to issuers doing business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each of you and each other Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any
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person controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such Underwriter to
any person if a copy of the Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the regulations thereunder,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending. The foregoing indemnity agreement shall be
in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and that all such fees and expenses shall be reimbursed as
they are incurred. The Company shall not be liable for any settlement of any
such action, suit or proceeding effected without its written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the Company agrees to
indemnify and hold harmless any Underwriter, to the extent provided in the
preceding paragraph, and any such controlling person from and against
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any loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with respect to information relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, or any such
controlling person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, and any such controlling person shall
have the rights and duties given to the Underwriters by paragraph (b) above.
The foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares, 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 in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, 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 shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by
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reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such 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 pursuant to this Section 7 are several in proportion
to the respective numbers of Firm Shares set forth opposite their names in
Schedule I hereto (or such numbers of Firm Shares increased as set forth in
Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares
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and payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to any Underwriter or any person controlling any Underwriter, or to
the Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the registration statement or the prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business, prospects,
properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company which makes any
statement made in the Prospectus untrue or which, in the opinion of the Company
and its counsel or the Underwriters and their counsel, requires the making of
any addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters, dated the Closing
Date, with respect to the validity of the Shares, the Registration Statement,
the Prospectus, and other related matters as you reasonably may request, such
counsel being
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able to rely on the opinion, dated the Closing Date or the Option Closing Date,
as the case may be, of Blackwell Sanders Matheny Weary & Lombardi L.C. or on the
opinions, dated the Closing Date or the Option Closing Date, as the case may be,
of local counsel, and the Company shall have furnished to such counsel such
papers and information as they request to enable them to pass upon such matters.
(d) You shall have received on the Closing Date an opinion of
Blackwell Sanders Matheny Weary & Lombardi L.C., counsel for the Company, dated
the Closing Date and addressed to you, as Representatives of the several
Underwriters, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, has
duly obtained or has succeeded to and holds all material franchises
and other governmental and corporate authority necessary to carry on
the public utility business in which it is engaged and to own, lease
and operate the properties in use in such business and the maintenance
of such franchises and other authority is not subject to any
burdensome restriction or condition of an unusual character (except as
described in the Registration Statement);
(ii) Each Subsidiary of the Company (other than the Company's
foreign subsidiaries) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation;
(iii) The Company has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement with
respect to the Shares and to issue the Shares;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The shares of the Company's Common Stock outstanding prior
to the issuance of the Shares have been duly authorized and are
validly issued, fully paid and nonassessable. There are no preemptive
or other rights to subscribe for or to purchase, or any restriction
upon the transfer of, any shares of the Company's capital stock,
including the Shares when issued, pursuant to the
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Company's certificate of incorporation, bylaws, or any agreement or
other instrument known to such counsel to which the Company or any of
its Subsidiaries is a party or by which any of them may be bound, and
neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of the Company's Common
Stock under the Company's certificate of incorporation, bylaws or any
agreement or other instrument binding upon the Company known to such
counsel;
(vi) The Shares have been duly authorized, and, when delivered in
accordance with the terms of this Agreement will be validly issued,
fully paid and nonassessable and the issuance of such Shares is not
subject to any preemptive rights;
(vii) The orders of the Federal Energy Regulatory Commission, the
Colorado Public Utilities Commission, the Public Service Commission of
West Virginia and the Michigan Public Service Commission authorizing
the issuance and sale of the Shares are in effect on the Closing Date
and no other approval, authorization, consent or order of any federal,
state or local commission or governmental authority (other than under
state securities or Blue Sky laws, as to which such counsel need
express no opinion) is required for the issuance and sale of the
Shares or the performance by the Company of its other obligations
under this Agreement, except such as are specified, obtained and in
effect, and the issuance and sale of the Shares hereunder are in
conformity with each such approval, authorization, consent and order;
(viii) After due inquiry, such counsel does not know of any legal
or governmental proceeding pending or threatened to which the Company
or its Subsidiaries is a party or to which any of the properties of
the Company is subject that is required to be described in the
Registration Statement or the Prospectus as amended or supplemented
and is not so described or of any contract or other document that is
required to be described in the Registration Statement or the
Prospectus as amended or supplemented or to be filed as an exhibit to
the Registration Statement that is not described or filed as required;
(ix) The statements made in the Registration Statement and the
Prospectus as amended or supplemented under the captions "Description
of Common Stock" and "Underwriting", in Item 15 of the Registration
Statement, in the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 under the captions "Business" (but
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only as to fuel supply contracts) and "Legal Proceedings", insofar as
such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings;
(x) The execution, delivery and performance by the Company of
this Agreement will not violate any provision of applicable law or the
certificate of incorporation or the bylaws of the Company or breach,
or result in a default under, any existing obligation of the Company
under any agreement or other instrument binding upon the Company known
to such counsel;
(xi) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prepricing
Prospectus and the Prospectus.
(xii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules and the other financial information and data
therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and they have no reason to
believe that any of such documents, (other than the financial
statements and related schedules and the other financial information
and data therein, as to which such counsel need express no opinion),
when they became effective or were so filed, as the case may be,
contained in the case of a registration statement which became
effective under the Act, 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, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xiii) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of such counsel's knowledge,
no proceedings for that purpose have been instituted or are pending
before or contemplated by the Commission and all filings required by
Rule 424 under the Act have been made; the Registration Statement and
the Prospectus and any amendments and supplements thereto,
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(other than the financial statements and related schedules and the
other financial information and data therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations
thereunder; they have no reason to believe that, as of its effective
date, the Registration Statement or amendment thereto (other than the
financial statements and related schedules and the other financial
information and data therein, as to which such counsel need express no
opinion) 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, as of its date,
the Prepricing Prospectus and the Prospectus or any amendment or
supplement thereto (other than the financial statements and related
schedules and the other financial information and data therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of
the Closing Date for the Shares, either the Registration Statement or
the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Closing Date for
the Shares (other than the financial statements and related schedules
and the other financial information and data therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required.
In giving the foregoing opinions, such counsel may rely on (1) the
opinions of local counsel, with respect to the opinion set forth in paragraph
(i) above, (2) the opinions heretofore rendered by Gary J. Brouillette, Esq. and
Messrs. Gage & Tucker with respect to the opinion set forth in paragraph (v)
above and (3) the opinions of local counsel and the opinion of McCarthy, Sweeney
& Harkaway, P.C., with respect to the opinion set forth in paragraph (vii)
above. Such counsel shall state that you and they are justified in relying on
such opinions.
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(e) On the Closing Date there shall have been furnished to you the
opinion (addressed to you, as Representatives of the several Underwriters) of
McCarthy, Sweeney & Harkaway, P.C., special regulatory counsel for the Company,
dated the Closing Date and in form and substance satisfactory to counsel for the
Underwriters, to the effect that the statements in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995 under the caption "Regulation"
which relate to Federal Energy Regulatory Commission matters insofar as such
statements constitute a summary of the legal matters, documents and proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings.
(f) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Arthur Andersen LLP, independent certified public accountants,
who have certified the financial statements of the Company and/or the
Subsidiaries included or incorporated by reference in the Registration Statement
substantially in the forms heretofore approved by you.
(g)(i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company other than shares of Common Stock and
options issued pursuant to Company employee and director plans and Company
dividend and interest reinvestment and stock purchase plans nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, and you shall have
received a certificate, dated the Closing Date and signed by the chief executive
officer or the chief financial officer of the Company (or such other officer as
is acceptable to you), to the effect set forth in this Section 8(g) and in
Section 8(h) hereof.
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(h) The Federal Energy Regulatory Commission, the Colorado Public
Utilities Commission, the Public Service Commission of West Virginia and the
Michigan Public Service Commission and any other commission or governmental
authority having jurisdiction over any of the Company's public utility
businesses shall have issued all approvals, authorizations, consents and orders
(the "Regulatory Actions") required thereby for the issuance and sale of the
Shares and the performance by the Company of its other obligations under this
Agreement, each Regulatory Action shall be in effect, no proceedings to suspend
the effectiveness of any Regulatory Actions shall be pending or threatened, no
Regulatory Action shall contain any provision or condition that is unacceptable
to the Underwriters, and the issuance and sale of the Shares to the Underwriters
hereunder shall be in conformity with each Regulatory Action;
(i) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(j) The Shares shall have been approved for listing, subject only to
official notice of issuance, on the New York, Pacific and Toronto Stock
Exchanges.
(k) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (g) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Additional Shares.
9. EXPENSES. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with
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the preparation, printing and filing of the Registration Statement, any
Prepricing Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Blue Sky and/or Legal Investment Memoranda and
any other documents in connection with the offering, purchase, sale and delivery
of the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(g) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and/or legal investment surveys; (iv) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (v) the cost of preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
all taxes on the transfer and sale of the Shares; (vi) the fees and expenses of
any transfer agent and registrant for the Shares; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, Section 7 and Section 5(j) hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase
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Shares which it or they are obligated to purchase on the Closing Date and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion after consultation with each other,
without liability on the part of any Underwriter to the Company by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case
may be, (i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York or Missouri shall have been declared by either federal or
state authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
front cover, and the statements in the first and third paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information
23
<PAGE>
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 6(b) and 7 hereof. The first paragraph under the
caption "Underwriting will contain the names and participations of the
underwriters; the third paragraph will contain the selling concession and the
reallowance.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 911 Main Street, Suite 3000, Kansas City, Missouri 64105, Attention:
President or (ii) if to you, as Representatives of the several Underwriters,
care of Merrill Lynch, Pierce, Fenner & Smith Incorporated, World Financial
Center, North Tower, New York, New York 10281, Attention: [_______________].
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
24
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
UTILICORP UNITED INC.
By ........................
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
PAINEWEBBER INCORPORATED
As Representatives of the Several Underwriters
By MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By ..........................
25
<PAGE>
SCHEDULE I
NAME OF COMPANY
Number of
UNDERWRITER FIRM SHARES
------------ -----------
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
Dean Witter Reynolds Inc.
Goldman Sachs & Co.
J.P. Morgan Securities Inc.
PaineWebber Incorporated
_________
Total..... 5,250,000
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UTILICORP UNITED INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
--------------------
6.70% Senior Notes Due 2006
--------------------
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of October 1, 1996
--------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EIGHTH SUPPLEMENTAL INDENTURE, dated as of October 1, 1996 (herein
called the "Eighth Supplemental Indenture"), between UTILICORP UNITED INC., a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association duly organized and
existing under the laws of the United States, as Trustee under the Original
Indenture referred to below (hereinafter called the "Trustee"), party of the
second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of November 1, 1990 (hereinafter called the
"Original Indenture"), to provide for the issuance from time to time of certain
of its unsecured senior notes (hereinafter called the "Securities"), the form
and terms of which are to be established as set forth in Sections 201 and 301 of
the Original Indenture; and
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of establishing
the form or terms of the Securities of any series as permitted in Sections 201
and 301 of the Original Indenture; and
<PAGE>
2
WHEREAS, the Company desires to create a series of the Securities in
an aggregate principal amount of $100,000,000 to be designated the "6.70% Senior
Notes Due 2006" (the "Senior Notes"), and all action on the part of the Company
necessary to authorize the issuance of the Senior Notes under the Original
Indenture and this Eighth Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior Notes when
executed by the Company and completed, authenticated and delivered by the
Trustee as in the Original Indenture and this Eighth Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed.
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture to, among other things, add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities; and
WHEREAS, the Company desires to limit the issuance of Mortgage Bonds
under its General Mortgage (as hereinafter defined) as set forth in Section 204
of this Eighth Supplemental Indenture for the benefit of the Holders of the
Senior Notes;
<PAGE>
3
NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That in consideration of the premises, the Company covenants and
agrees with the Trustee, for the equal benefit of holders of the Senior Notes,
as follows:
ARTICLE ONE
DEFINITIONS
The use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original Indenture and the
form of Senior Note attached hereto as Exhibit A.
ARTICLE TWO
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 201. ISSUE OF SENIOR NOTES. A series of Securities which
shall be designated the "6.70% Senior Notes Due 2006" shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the Original
Indenture and this Eighth Supplemental Indenture (including the form of Senior
Note set forth as Exhibit A hereto). The aggregate principal amount of Senior
Notes of the series created hereby which may be authenticated and delivered
under the Original Indenture shall not, except as permitted by the provisions of
the Original Indenture, exceed $100,000,000.
<PAGE>
4
Section 202. FORM OF SENIOR NOTES; INCORPORATION OF TERMS. The form
of the Senior Notes shall be substantially in the form of Exhibit A attached
hereto. The terms of such Senior Notes are herein incorporated by reference and
are part of this Eighth Supplemental Indenture.
Section 203. PLACE OF PAYMENT. The Place of Payment will be
initially the corporate trust offices of the Trustee which, at the date hereof,
are located at The First National Bank of Chicago, One First National Plaza,
Suite 0126, Chicago, Illinois 60670-0126 and The First National Bank of Chicago,
14 Wall Street, 8th Floor, New York, New York 10005.
Section 204. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The Company
will not issue any Mortgage Bonds under its General Mortgage Indenture and Deed
of Trust, dated September 15, 1988, between the Company and Commerce Bank of
Kansas City, N.A., as Trustee (the "General Mortgage"), without making effective
provision, and the Company covenants that in any such case effective provisions
will be made, whereby the Senior Notes shall be directly secured by the General
Mortgage equally and ratably with any and all other obligations and indebtedness
thereby secured.
<PAGE>
5
ARTICLE THREE
MISCELLANEOUS
Section 301. EXECUTION OF SUPPLEMENTAL INDENTURE. This Eighth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Eighth Supplemental Indenture forms a part thereof.
Section 302. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Eighth Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
Section 303. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 304. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Eighth Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 305. SEPARABILITY CLAUSE. In case any provision in this
Eighth Supplemental Indenture or in the Senior Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 306. BENEFITS OF EIGHTH SUPPLEMENTAL INDENTURE. Nothing in
this Eighth Supplemental Indenture or in
<PAGE>
6
the Senior Notes, express or implied, shall give to any person, other than the
parties hereto and their successors hereunder and the holders, any benefit or
any legal or equitable right, remedy or claim under this Eighth Supplemental
Indenture.
Section 307. GOVERNING LAW. This Eighth Supplemental Indenture and
each Senior Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be governed by and construed in
accordance with the laws of said State.
Section 308. EXECUTION AND COUNTERPARTS. This Eighth Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
<PAGE>
7
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
UTILICORP UNITED INC.
[Seal] By: /s/ DALE J. WOLF
---------------------------
Name: Dale J. Wolf
Title: Vice President,
Finance
Attest:
/s/ RANDY MILLER
- ----------------------------
Title: Asst. Treasurer
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
[Seal] By: /s/ JOHN R. PRENDIVILLE
---------------------------
Name: John R. Prendiville
Title: Vice President
Attest:
/s/ BRENDA MCCLEOD
- ----------------------------
Title: Trust Officer
<PAGE>
STATE OF Missouri )
) ss.:
COUNTY OF Jackson )
On the 18th day of October, 1996, before me personally came Dale J.
Wolf, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of UtiliCorp United Inc., the corporation described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/Sandra L. Horvat
------------------------------
Notary Public,
State of Missouri
STATE OF Illinois )
) ss.:
COUNTY OF Cook )
On the 21st day of October, 1996, before me personally came
John R. Prendiville, to me known, who, being by me duly sworn, did depose and
say that he is Vice President of The First National Bank of Chicago, the
national banking association described in and which executed the foregoing
instrument; that he knows the seal of said association; that the seal affixed
to said instrument is such association seal; that it was so affixed by
authority of the Board of Directors of said association, and that he signed
his name thereto by like authority.
/s/Mietka T. Collins
------------------------------
Notary Public,
State of Illinois
<PAGE>
EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
No. $
UTILICORP UNITED INC., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________________, or registered
assigns, the principal sum of __________________________________________ DOLLARS
on ____________, and to pay interest thereon from _________, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on ______ and __________ in each year, commencing
________________, at the rate per annum provided in the title hereof, until the
principal hereof is paid or made available for payment, and, subject to the
terms of the Indenture, at the rate per annum provided in the title hereof on
any overdue principal and premium, if any, and (to the extent that the payment
of such interest shall be legally enforceable) on any overdue instalment of
interest. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be the ______ or ___________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date, and may either
<PAGE>
- 2 -
be paid to the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, in which
event notice whereof shall be given to Holders of Securities of this series not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made at the office or agency of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal
by check payable in such money or by wire transfer to a dollar account
maintained by the holder (if the holder of the Security holds an aggregate
principal amount of Securities in excess of $5,000,000). The Company may pay
interest by mailing a dollar check to a holder's registered address or, upon
application by the holder hereof to the Registrar, not later than the applicable
record date, by wire transfer to a dollar account maintained by the holder (if
the holder of the Security holds an aggregate principal amount of Securities in
excess of $5,000,000).
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or an Authenticating Agent, by
manual signature of one of its authorized officers, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE>
- 3 -
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: By:
---------------------------
Title:
- ----------------
Attest:
------------------------------
[Seal] Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Senior
Notes of the series designated
herein referred to in the
within-mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
----------------------------
Authorized Officer
<PAGE>
[FORM OF REVERSE OF SENIOR NOTE]
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
This Senior Note is one of a duly authorized series of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of November 1, 1990, as amended and
supplemented (as amended and supplemented, the "Indenture"), between the Company
and The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $100,000,000.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
[This Security may be repaid by the Company at the option of the Holder on
____________ (the "Repayment Date"). The Repayment Price shall be 100% of the
principal amount of this Security plus accrued interest to the Repayment Date,
but interest installments whose Stated Maturity is prior to the Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular or
Special Record Dates, all as provided in the Indenture. For this Security to be
repaid at the option of the Holder, the Paying Agent must receive, during the
period from and including _____________ to and including the close of business
on ___________ (or, if ___________ is not a Business Day, the next succeeding
Business Day) (a) appropriate wire transfer instructions and (b) either (i) this
Security with the form entitled "Option to Elect Repayment" below duly completed
or (ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the Holder of this Security, the principal amount of this Security,
the portion of principal amount of this Security to be repaid, the certificate
number or a description of the tenor and terms of this Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that this Security, together with the duly completed form entitled "Option to
Elect
<PAGE>
- 2 -
Repayment" on this Security, will be received by the Paying Agent not later than
the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter, PROVIDED, HOWEVER, that such Security and form duly
completed are received by the Paying Agent by such fifth Business Day. Exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company. The repayment option with respect to this Security may be exercised by
the Holder for less than the entire principal amount hereof, PROVIDED that the
principal amount, if any, of this Security that remains outstanding after such
repayment must be an authorized denomination as defined herein. The Company
will not be required to register the transfer or exchange of any Security
following the receipt of a notice to repay a Security as described above. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Security for repayment will be determined by the Paying Agent,
whose determination will be final and binding. In the event of repayment of
this Security in part only, a new Security or Securities of this series and of
like tenor and for a principal amount equal to the unrepaid portion will be
delivered to the Holder upon the cancellation hereof.]
Interest payments for this Security will be computed and paid on the
basis of a 360-day year of twelve 30-day months. If an Interest Payment Date
falls on a day that is not a Business Day, such Interest Payment Date will be
the following day that is a Business Day.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
<PAGE>
- 3 -
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
This Security shall be exchangeable for Securities registered in the
names of Persons other than the Depositary with respect to such series or its
nominee only as provided in this paragraph. This Security shall be so
exchangeable if (x) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such series or at any time ceases to be a
clearing agency registered as such under the Securities Exchange Act of 1934,
(y) the Company executes and delivers to the Trustee an Officers' Certificate
providing that this Security shall be so exchangeable or (z) there shall have
occurred and be continuing an Event of Default with respect to the Securities of
such series. Securities so issued in exchange for this Security shall be of the
same series, having the same interest rate, if any, and maturity and having the
same terms as this Security, in authorized denominations and in the aggregate
having the same principal amount as this Security and registered in such names
as the Depositary for such Global Security shall direct.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and interest,
if any, on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
<PAGE>
- 4 -
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $1,000 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE AT THE OPTION OF THE HOLDER
AND THE HOLDER ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the attached Security (or portion thereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount thereof together in
the case of any such repayment with interest to the Repayment Date, to the
undersigned at ___________________________________________.
For the Security to be repaid at the option of the Holder, the Paying
Agent must receive as its corporate trust office, at any time from and including
_____________ to and including the close of business on ___________ (or if
___________ is not a Business Day, the next succeeding Business Day), (a)
appropriate wire transfer instructions and (b) either (i) the Security together
with this "Option to Elect Repayment" form duly completed or (ii) a telegram,
telex, facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the Holder of the Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the certificate number or a description of
the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security, together
with this duly completed form entitled "Option to Elect Repayment" on the
reverse of the Security, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter, provided, however, that such telegram, telex, facsimile
transmission or letter shall be effective only if the Security with such form
duly completed are received by the Paying Agent by such fifth Business Day.
If less than the entire principal amount of the attached Security is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: ____________________; and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Security or Securities to be
issued to the Holder for the portion of the within Security not being repaid (in
the absence of any specification, one such Security will be issued for the
portion not being repaid): ______________________.
Dated:
----------------------- ------------------------------
NOTICE: The signature to this
Option to Elect Repayment must correspond
with the name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
<PAGE>
EXHIBIT 5
October 25, 1996
UtiliCorp United Inc.
911 Main Street
Kansas City, MO 64105
Ladies and Gentlemen:
We refer to the Registration Statement of UtiliCorp United Inc. (the
"Company") on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission for the purpose of registering under the
Securities Act of 1933, as amended, 6,000,000 shares of the Company's common
stock, par value $1.00 per share (the "Common Stock"), to be sold by the
Company.
We are familiar with the proceedings to date with respect to such
proposed sale and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for the purposes of this opinion.
We are of the opinion that when such 6,000,000 shares of Common Stock
have been issued and sold by the Company as contemplated by the Registration
Statement they will constitute legally issued, fully paid and nonassessable
shares of the Company.
We hereby consent to the reference to our firm under the heading "Legal
Opinions" in the prospectus constituting a part of the Registration Statement
and to the filing of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Blackwell Sanders Matheny Weary & Lombardi L.C.
<PAGE>
EXHIBIT 23(a)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement (Form S-3) to register 6 million
shares of Common Stock of UtiliCorp United Inc. of our report dated February
6, 1996, included in the UtiliCorp United Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1995, and to all references to our firm
included in this Official Statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
October 25, 1996
<PAGE>
EXHIBIT 23(b)
ARTHUR
ANDERSEN
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement (Form S-3) to register 6 million
shares of Common Stock of UtiliCorp United Inc. of our report dated November
10, 1995, which is included in UtiliCorp United Inc.'s Form 8-K/A dated
April 1, 1996. It should be noted that we have not audited any financial
statements of United Energy Limited subsequent to June 30, 1995.
/s/ Arthur Andersen
Melbourne, Australia,
October 25, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned Directors and Officers of UtiliCorp United Inc., do
hereby name, constitute and appoint Richard C. Green, Jr., Terry G. Westbrook
or Dale J. Wolf, our agent and attorney-in-fact, for each of us and in our
respective behalves as Directors and/or as Officers of UtiliCorp United Inc.,
to sign and execute a Registration Statement on Form S-3, and any amendments
thereto, relating to the registration with the Securities and Exchange
Commission of not more than 6,000,000 shares of Common Stock of UtiliCorp
United Inc.
Executed this 25th day of October, 1996.
/s/Richard C. Green, Jr. /s/Avis G. Tucker
- ------------------------------- -------------------------------
RICHARD C. GREEN, JR. AVIS G. TUCKER
/s/Irvine O. Hockaday, Jr. /s/Robert F. Jackson, Jr.
- ------------------------------- -------------------------------
IRVINE O. HOCKADAY, JR. ROBERT F. JACKSON, JR.
/s/John R. Baker /s/L. Patton Kline
- ------------------------------- -------------------------------
JOHN R. BAKER L. PATTON KLINE
/s/Herman Cain
- ------------------------------- -------------------------------
HERMAN CAIN STANLEY O. IKENBERRY
/s/Robert Green /s/Dale J. Wolf
- ------------------------------- -------------------------------
ROBERT GREEN DALE J. WOLF
/s/Terry G. Westbrook
- -------------------------------
TERRY G. WESTBROOK
