<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
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
incorporation or organization) Identification No.)
</TABLE>
------------------------
20 WEST NINTH STREET, 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.
20 WEST NINTH STREET, KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Name, address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
------------------------------
COPIES TO:
DENNIS P. WILBERT, ESQ. ROBERT W. MULLEN, JR., ESQ.
Blackwell Sanders Matheny Milbank, Tweed, Hadley & McCloy
Weary & Lombardi LLP 1 Chase Manhattan Plaza
Two Pershing Square New York, New York 10005
2300 Main Street
Kansas City, Missouri 64108
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of 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 OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT* OFFERING PRICE* REGISTRATION FEE
<S> <C> <C> <C> <C>
Senior Notes......................... $250,000,000 100% $250,000,000 $75,758
</TABLE>
* Estimated for the purpose of calculating the registration fee.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 29, 1997
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>
PROSPECTUS
UTILICORP UNITED INC.
SENIOR NOTES
------------------
UtiliCorp United Inc. (the "Company" or "UtiliCorp") may offer from time to
time up to $250,000,000 aggregate principal amount of its unsecured senior notes
(the "Securities") on terms to be determined at the time of offering. The
specific designation, aggregate principal amount, maturity, rate and times of
payment of interest, if any, redemption and sinking fund terms, if any, other
specific terms and any listing on a securities exchange of each series of the
Securities in respect of which this Prospectus is being delivered will be set
forth in a Prospectus Supplement (the "Prospectus Supplement"), together with
the terms of offering of the Securities. The terms will be established by
negotiation or by competitive bid.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Company may sell the Securities in any of the following ways: (i)
through underwriters or dealers; (ii) directly to a limited number of purchasers
or to a single purchaser; or (iii) through agents. The names of any such
underwriter or agents and any applicable commissions or discounts will be set
forth in an accompanying Prospectus Supplement. Pricing information and net
proceeds to the Company from the sale of each series of Securities will also be
set forth in such Prospectus Supplement. See "Plan of Distribution" herein.
------------------------
The date of this Prospectus is , 1997.
<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, DEALER OR
AGENT. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY ANY 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.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, 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 the Office of
the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and
at the following Regional Offices of the Commission: 7 World Trade Center, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material may be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such reports, proxy statements and other information may also
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, and the Pacific Exchange, Inc. 301 Pine Street, San
Francisco, California 94104. Such materials 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, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997 and;
(c) The Company's Current Report on Form 8-K dated June 24, 1997.
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., 20 West Ninth, P.O. Box 13287, Kansas City, Missouri
64199-3287, telephone number (816) 421-6600.
2
<PAGE>
THE COMPANY
The Company is an international energy company, incorporated under the laws
of the State of Delaware, which consists of electric and natural gas utility
operations, natural gas gathering, marketing and processing, energy services and
independent power projects managed through two primary businesses. UtiliCorp
Energy Delivery consists primarily of domestic transmission and distribution
utility operations and also offers appliance repair and service contracts.
UtiliCorp Energy Group consists of wholesale energy marketing, retail gas
marketing, gas processing, gathering and pipelines, electricity marketing and
electric generation, both regulated and non-regulated independent power
projects. The Company also has various international interests consisting
primarily of equity investments in Australia and New Zealand, a wholly-owned
Canadian electric utility and gas marketing operations in the United Kingdom and
Canada. The Company has its Executive Offices at 20 West Ninth Street, P.O. Box
13287, Kansas City, Missouri 64199-3287, telephone number (816) 421-6600.
The businesses of the Company are seasonal, with electric revenues peaking
in the summer and gas revenues peaking in the winter.
The Company is actively seeking expansion through the prudent acquisition of
utility and other energy related properties, including electric and gas
operating utilities, interests in electric generating assets, natural gas
gathering systems and proven reserves.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the
Securities offered hereby will be used to reduce outstanding short-term debt
previously incurred for retirement of approximately $69 million of the Company's
10.5% Senior Notes due 2020 and $25 million of the Company's $2.05 Series
Preference Stock, construction and acquisitions and for general corporate
purposes. At June 30, 1997, the Company had outstanding short-term borrowings
(excluding current maturities of long-term debt) of approximately $253 million
with a weighted average interest rate of 6.01%.
As discussed under "The Company", UtiliCorp is actively seeking to make
acquisitions of utility and other energy related properties. Such acquisitions,
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.
RATIO OF EARNINGS TO FIXED CHARGES
For the twelve-month period ended June 30, 1997 and the last five fiscal
years, the ratios of earnings to fixed charges of the Company, computed as set
forth below, were as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
TWELVE MONTHS ENDED ------------------------------------------
JUNE 30, 1997 1996 1995 1994 1993
----------------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges..................... 2.39 2.15 1.93 2.31 2.05
<CAPTION>
1992
---------
<S> <C>
Ratio of Earnings to Fixed Charges..................... 1.76
</TABLE>
The ratio of earnings to fixed charges represents the number of times fixed
charges are covered by earnings. For purposes of computing this ratio, earnings
consist of income before income taxes, plus fixed charges. Fixed charges consist
of interest expense (before allowance for borrowed funds used for construction),
amortization of debt issuance costs and such portion of rental expense which the
Company estimates to be representative of the interest factor attributable to
such rental expense.
3
<PAGE>
DESCRIPTION OF SECURITIES
The following description of the terms of the Securities sets forth certain
general terms and provisions. The particular terms of the Securities offered by
any Prospectus Supplement (the "Offered Securities") will be described therein.
The Securities will be issued under an Indenture, dated as of November 1, 1990,
as supplemented (the "Indenture"), between the Company and The First National
Bank of Chicago, as Trustee (the "Trustee"), a copy of which is filed as an
exhibit to the Registration Statement. The following summaries of certain
provisions of the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
Indenture, including the definitions therein of certain terms. Wherever
particular sections or defined terms of the Indenture are referred to or used
herein, such sections or defined terms shall be incorporated herein by reference
as part of the statements made.
GENERAL
The Indenture does not limit the aggregate principal amount of the
Securities or of any particular series of Securities which may be issued
thereunder. The Indenture provides that Securities may be issued from time to
time in one or more series. (Section 301). The Securities will be unsecured
obligations of the Company and will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company.
Reference is made to the Prospectus Supplement relating to the particular
series of Securities offered thereby for the following terms or additional
provisions of the Offered Securities: (1) the title of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered Securities; (3)
the price (expressed as a percentage of the aggregate principal amount thereof)
at which the Offered Securities will be issued; (4) the date or dates on which
the Offered Securities will mature; (5) the rate or rates (which may be fixed or
variable) per annum at which the Offered Securities will bear interest, if any,
or the method by which such rate or rates, if any, will be determined; (6) the
date from which such interest, if any, on the Offered Securities will accrue,
the dates on which such interest, if any, will be payable, the date on which
payment of such interest, if any, will commence, the record dates for any
interest payment dates and the person, if different than the registered holder
as of the record date, to whom any interest shall be payable; (7) the dates, if
any, on which and the price or prices at which the Offered Securities will,
pursuant to any mandatory sinking fund provisions, or may, pursuant to any
optional sinking fund provisions, be redeemed by the Company, and the other
detailed terms and provisions of such sinking funds; (8) the date, if any, after
which and the price or prices at which the Offered Securities may, pursuant to
any optional redemption provisions, be redeemed at the option of the Company or
of the Holder thereof and the other detailed terms and provisions of such
optional redemptions; (9) any additional restrictive covenants included solely
for the benefit of the Offered Securities; (10) any additional Events of Default
provided solely with respect to the Offered Securities; (11) the currency or
currencies in which the principal of (and premium, if any) and interest, if any,
on the Offered Securities will be payable; (12) the index, if any, with
reference to which the amount of principal of (and premium, if any) or interest,
if any, on the Offered Securities will be determined; (13) whether a Global
Security is to be issued with respect to the Offered Securities, the name of the
Depository for such Global Security and the terms, if any, upon which interests
in the Global Security may be exchanged for definitive Offered Securities; and
(14) any additional terms of the Offered Securities.
Unless otherwise provided in the Prospectus Supplement relating thereto,
principal of (and premium, if any) and interest, if any, on the Securities will
be payable, and the transfer or exchange of the Securities will be registrable,
at the office or agency maintained by the Company for that purpose in New York,
New York, provided that, at the option of the Company interest may be paid by
check mailed to the address of the Person entitled thereto as it appears on the
Security Register. (Sections 301, 305 and 1002).
4
<PAGE>
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Securities will be issued only in registered form without coupons and in
denominations of $1,000 and integral multiples thereof. (Section 302). No
service charge will be made for any registration of transfer or exchange of the
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. (Section 305).
Securities may be issued as Original Issue Discount Securities to be sold at
a substantial discount below their principal amount. Special Federal income tax,
accounting and other considerations applicable thereto will be described in the
Prospectus Supplement relating thereto. "Original Issue Discount Security" means
any security which provides for the declaration of acceleration of the maturity
of an amount less than the principal amount thereof upon the occurrence and
continuance of an Event of Default. (Section 101).
EVENTS OF DEFAULT
An Event of Default is defined in the Indenture, with respect to Securities
of any series, as: (a) a default in the payment of principal of (or premium, if
any, on) any Security at its Maturity; (b) a default in the payment of any
interest on any Security when due, continued for 30 days; (c) a default in the
payment of any sinking fund instalment, when and as due; (d) failure by the
Company for 60 days after due notice in performance of any other of the
covenants or warranties in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of a series of Securities other
than that series); (e) a default under any indebtedness for money borrowed by
the Company resulting in such indebtedness in an aggregate principal amount
exceeding $5,000,000 becoming due prior to maturity, without such acceleration
having been rescinded within 10 days after due notice of such default as
provided in the Indenture; (f) certain events of bankruptcy, insolvency or
reorganization of the Company; and (g) any other Event of Default provided with
respect to Securities of that series. (Section 501).
The Indenture provides that, if any Event of Default with respect to
Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may, by notice as provided in the
Indenture, declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all Securities of that series
to be due and payable immediately, but upon certain conditions such declaration
may be annulled and past defaults (except, unless theretofore cured, a default
in payment of principal of (or premium, if any) or interest, if any, on the
Securities of that series and certain other specified defaults) may be waived by
the Holders of a majority in principal amount of the Outstanding Securities of
that series on behalf of the Holders of all Securities of that series. (Sections
502 and 513).
Reference is made to the Prospectus Supplement relating to each series of
Offered Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to Securities of any series at the time
Outstanding, give to the Holders of the Outstanding Securities of that series
notice of such default known to it if uncured or not waived, provided, that,
except in the case of default in the payment of principal of (or premium, if
any) or interest, if any, on any Security of that series, or in the payment of
any sinking fund instalment which is provided, the Trustee will be protected in
withholding such notice if the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Outstanding
Securities of such series; and, provided further, that such notice shall not be
given until 30 days after the occurrence of a default with respect to
Outstanding Securities of any series in the performance of a covenant in the
Indenture other than for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or the
5
<PAGE>
deposit of any sinking fund instalment with respect to the Securities of such
series. The term default with respect to any series of Outstanding Securities
for the purpose only of this provision means the happening of any of the Events
of Default specified in the Indenture and relating to such series of Outstanding
Securities, excluding any grace periods and irrespective of any notice
requirements. (Section 602).
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care, to
be indemnified by the Holders of any series of Outstanding Securities before
proceeding to exercise any right or power under the Indenture at the request of
the Holders of such series of Securities. (Section 603). The Indenture provides
that the Holders of a majority in principal amount of Outstanding Securities of
any series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or other power
conferred on the Trustee, provided that the Trustee may decline to act if such
direction is contrary to law or the Indenture. (Section 512).
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate of no default, or specifying any default that exists.
(Section 1007).
DEFEASANCE
The Indenture provides that the Company, at its option, (a) will be
discharged from any and all obligations with respect to the Securities (except
for certain obligations which include registering the transfer or exchange of
the Securities, replacing stolen, lost or mutilated Securities, maintaining
paying agencies and holding monies for payment in trust) or (b) need not comply
with certain restrictive covenants of the Indenture, upon the deposit with the
Trustee (and in the case of a discharge, 91 days after such deposit), in trust,
of money, or U.S. Government Obligations, or a combination thereof, which
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money, in an amount sufficient to pay all the principal
of and interest on the Securities on the date such payments are due in
accordance with the terms of the Securities to their stated maturities or to and
including a redemption date which has been irrevocably designated by the Company
for redemption of the Securities. To exercise any such option, the Company is
required to meet certain conditions, including delivering to the Trustee an
opinion of counsel to the effect that the deposit and related defeasance would
not cause the Holders of the Securities to recognize income, gain or loss for
federal income tax purposes. (Sections 403 and 1008).
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than 66 2/3% in principal amount of
each series of Outstanding Securities affected thereby (voting as a class), to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of the Indenture or modifying the rights of
the Holders of Outstanding Securities of such series, except that no such
supplemental indenture may (a) change the Stated Maturity of any Security, (b)
reduce the principal amount of, or the rate of interest or any premium on, any
Security, (c) change the place or currency of payment on any Security, (d)
impair the right to institute suit for the enforcement of any payment on or
after the Stated Maturity thereof, (e) reduce the above-stated percentage of
Outstanding Securities necessary to modify or amend the Indenture, or (f) reduce
the percentage of aggregate principal amount of Outstanding Securities necessary
for waiver of compliance with certain provisions of the Indenture or for the
waiver of certain covenants and defaults. (Section 902).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture contains a provision permitting the Company, without the
consent of the Holders of any of the Outstanding Securities under the Indenture,
to consolidate with or merge into any other corporation or transfer or lease its
assets substantially as an entirety to any Person or to acquire or lease
6
<PAGE>
the assets of any Person substantially as an entirety or to permit any
corporation to merge into the Company, provided that: (i) the successor is a
corporation organized under the laws of any domestic jurisdiction; (ii) the
successor corporation, if other than the Company, assumes the Company's
obligations on the Securities and under the Indenture; and (iii) after giving
effect to the transaction, no Event of Default, and no event which, after notice
or lapse of time, would become an Event of Default, shall have occurred and be
continuing. (Section 801).
Unless otherwise indicated in the Prospectus Supplement, certain of the
covenants described above would not necessarily afford the Holders protection in
the event of a highly leveraged transaction involving the Company, such as a
leveraged buyout. However, issuance of debt securities by the Company requires
regulatory approval.
OUTSTANDING SECURITIES
The Indenture provides that, in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver under the Indenture,
(i) the portion of the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof pursuant
to the terms of such Original Issue Discount Security as of the date of such
determination, and (ii) Securities owned by the Company or any of its Affiliates
shall not be deemed to be Outstanding. (Section 101).
REGARDING THE TRUSTEE
The Company has a bank line of credit with the Trustee and maintains
depository and other banking relationships with the Trustee.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of the following ways: (i)
through underwriters or dealers; (ii) directly to a limited number of purchasers
or to a single purchaser; or (iii) through agents. The Prospectus Supplement
with respect to the series of Securities being offered thereby will set forth
the terms of the offering of such Securities, including the name or names of any
underwriters, the purchase price of such Securities and the proceeds to the
Company from such sale, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers and any securities
exchanges on which such Securities may be listed.
If underwriters are used in the sale of a series of Securities, such
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Securities may be either offered to the public through
underwriting syndicates (which may be represented by managing underwriters
designated by the Company), or directly by one or more underwriters acting
alone. Unless otherwise set forth in the Prospectus Supplement, the obligations
of the underwriters to purchase the Securities of the series offered thereby
will be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all such Securities if any are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Securities may be sold directly by the Company or through agents designated
by the Company from time to time. The Prospectus Supplement with respect to any
series of Securities sold in this manner will set forth the name of any agent
involved in the offer or sale of such series of Securities as well as any
7
<PAGE>
commissions payable by the Company to such agent. Unless otherwise indicated in
the Prospectus Supplement, any such agent is acting on a best efforts basis for
the period of its appointment.
If dealers are utilized in the sale of any series of Securities, the Company
will sell such Securities to the dealers, as principal. Any dealer may then
resell such Securities to the public at varying prices to be determined by such
dealer at the time of resale. The name of any dealer and the terms of the
transaction will be set forth in the Prospectus Supplement with respect to the
Securities being offered thereby.
It has not been determined whether any series of the Securities will be
listed on a securities exchange. Underwriters intend to, but will not be
obligated to, make a market in any series of Securities. The Company cannot
predict the activity of trading in, or liquidity of, any series of the
Securities.
Agents, underwriters and dealers may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribution with respect to payments which the agents, underwriters or
dealers may be required to make in respect thereof. Agents, underwriters and
dealers may be customers of, engage in transactions with, or perform services
for the Company in the ordinary course of business.
LEGAL OPINIONS
The legality of the Securities will be passed upon for the Company by
Blackwell Sanders Matheny Weary & Lombardi LLP, Two Pershing Square, 2300 Main
Street, Kansas City, Missouri 64108, and for the underwriter(s), purchaser(s) or
agent(s) 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, 1996, 1995
and 1994, 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.
8
<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 Securities being
registered.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 75,758
Accounting fees and expenses...................................... 10,000
Printing fees..................................................... 40,000
Legal fees and expenses........................................... 20,000
Fees of rating agencies........................................... 45,000
Trustees fees and expenses........................................ 5,000
Miscellaneous..................................................... 4,242
---------
Total........................................................... $ 200,000
---------
---------
</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 such person
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.
*4(a)(1) -- Indenture, dated as of November 1, 1990, between UtiliCorp United Inc. and The First National
Bank of Chicago, Trustee. (Exhibit 4(a) to UtiliCorp United Inc.'s Current Report on Form 8-K,
dated November 30, 1990.)
*4(a)(2) -- First Supplemental Indenture, dated as of November 27, 1990. (Exhibit 4(b) to UtiliCorp United
Inc.'s Current Report on Form 8-K, dated November 30, 1990.)
*4(a)(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(a)(4) -- Third Supplemental Indenture, dated as of January 15, 1992. (Exhibit 4(c)(4) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1991.)
*4(a)(5) -- Fourth Supplemental Indenture, dated as of February 24, 1993. (Exhibit 4(c)(5) to UtiliCorp
United Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1992.)
*4(a)(6) -- Fifth Supplemental Indenture, dated as of April 1, 1993. (Exhibit 4(a)(6) to UtiliCorp United
Inc.'s Registration Statement on Form S-3 No. 33-49803, filed July 21, 1993.)
*4(a)(7) -- Sixth Supplemental Indenture, dated as of November 1, 1994. (Exhibit 4(d)(7) to UtiliCorp United
Inc.'s Registration Statement on Form S-3 No. 33-57167, filed January 4, 1995.)
*4(a)(8) -- Seventh Supplemental Indenture, dated as of June 1, 1995. (Exhibit 4 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the Quarter ended June 30, 1995.)
*4(a)(9) -- Eighth Supplemental Indenture, dated as of October 1, 1996. (Exhibit 4(b)(9) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1996.)
4(a)(10) -- Form of Supplemental Indenture.
5 -- Opinion of Messrs. Blackwell Sanders Matheny Weary & Lombardi LLP
12 -- Computation of ratio of earnings to fixed charges.
23(a) -- Consent of Arthur Andersen LLP
23(b) -- Consent of Messrs. Blackwell Sanders Matheny Weary & Lombardi LLP (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.
25 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ------------------------
* Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
II-2
<PAGE>
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:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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 29th day of
August 1997.
<TABLE>
<S> <C> <C>
UTILICORP UNITED INC.
By: /s/ DALE J. WOLF
-----------------------------------------
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
</TABLE>
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 29th day of August, 1997.
SIGNATURE TITLE
- ------------------------------ --------------------------
Chairman of the Board and
RICHARD C. GREEN, JR.* Chief Executive Officer
- ------------------------------ (Principal Executive
Richard C. Green, Jr. Officer)
Vice President Finance,
/s/ DALE J. WOLF Treasurer and Corporate
- ------------------------------ Secretary (Principal
Dale J. Wolf Financial Officer)
/s/ JAMES S. BROOK Vice President Accounting
- ------------------------------ (Principal
James S. Brook Accounting Officer)
RICHARD C. GREEN, JR.*
ROBERT K. GREEN*
JOHN R. BAKER*
AVIS G. TUCKER* A Majority of the Board of
ROBERT F. JACKSON* Directors
L. PATTON KLINE*
DR. STANLEY O. IKENBERRY*
IRVINE O. HOCKADAY, JR.*
As attorney-in-fact for
the above-named officers
*By: /s/ DALE J. WOLF and directors pursuant
------------------------- to powers of attorney
Dale J. Wolf duly executed by such
persons
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
PAGE UPON
WHICH
EXHIBIT DESCRIPTION EXHIBIT APPEARS
- ----------- --------------------------------------------------------------------------------- ---------------
<S> <C> <C> <C>
1 -- Form of Underwriting Agreement.
*4(a)(1) -- Indenture, dated as of November 1, 1990, between UtiliCorp United Inc. and The
First National Bank of Chicago, Trustee. (Exhibit 4(a) to UtiliCorp United Inc.'s
Current Report on Form 8-K, dated November 30, 1990.)
*4(a)(2) -- First Supplemental Indenture, dated as of November 27, 1990. (Exhibit 4(b) to
UtiliCorp United Inc.'s Current Report on Form 8-K, dated November 30, 1990.)
*4(a)(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(a)(4) -- Third Supplemental Indenture, dated as of January 15, 1992. (Exhibit 4(c)(4) to
UtiliCorp United Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1991.)
*4(a)(5) -- Fourth Supplemental Indenture, dated as of February 24, 1993. (Exhibit 4(c)(5) to
UtiliCorp United Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1992.)
*4(a)(6) -- Fifth Supplemental Indenture, dated as of April 1, 1993. (Exhibit 4(a)(6) to
UtiliCorp United Inc.'s Registration Statement on Form S-3 No. 33-49803, filed
July 21, 1993.)
*4(a)(7) -- Sixth Supplemental Indenture, dated as of November 1, 1994. (Exhibit 4(d)(7) to
UtiliCorp United Inc.'s Registration Statement on Form S-3 No. 33-57167, filed
January 4, 1995.)
*4(a)(8) -- Seventh Supplemental Indenture, dated as of June 1, 1995. (Exhibit 4 to UtiliCorp
United Inc's. Quarterly Report on Form 10-Q for the Quarter ended June 30, 1995.)
*4(c)(9) -- Eighth Supplemental Indenture, dated as of October 1, 1996. (Exhibit 4(b)(9) to
UtiliCorp United Inc's. Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.)
4(a)(10) -- Form of Supplemental Indenture.
5 -- Opinion of Messrs. Blackwell Sanders Matheny Weary & Lombardi LLP
12 -- Computation of ratio of earnings to fixed charges.
23(a) -- Consent of Arthur Andersen LLP
23(b) -- Consent of Messrs. Blackwell Sanders Matheny Weary & Lombardi LLP (included in
opinion filed as Exhibit 5).
24 -- Powers of Attorney executed by certain officers and the Board of Directors of
UtiliCorp United Inc.
25 -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ------------------------
* Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
<PAGE>
Exhibit 1
UTILICORP UNITED INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
, 199
Name(s) of [Co-]Representative(s)
As Representative(s) of the
several Underwriters
c/o Name
Address
Ladies and Gentlemen:
From time to time UtiliCorp United Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule 1 to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of
<PAGE>
such Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") on
Form S-3; such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters have been declared effective by the Commission in such form;
no other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus");
the various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-I, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any
2
<PAGE>
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not 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 not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the
3
<PAGE>
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), as applicable, and the rules
and regulations of the Commission thereunder, and do not and will not, as
of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, 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 not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(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
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement 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), results
of operations, business, prospects, net worth or assets of the Company and
its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) This Agreement, the Indenture, the Designated Securities and any
applicable Pricing Agreement have been duly authorized by the Company and
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(f) The Indenture (assuming due execution and delivery thereof by the
trustee thereto (the "Trustee") and the
4
<PAGE>
Designated Securities (when executed by the Company and authenticated in
accordance with the Indenture and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Securities), will be
the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). The Designated Securities
(when executed by the Company and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the purchaser
thereof) will be entitled to the benefits of the Indenture (subject to the
exceptions set forth in the preceding sentence). The Indenture has been
qualified under the Trust Indenture Act;
(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 and are
owned directly or indirectly by the Company (except for United Gas Company
Ltd., of which the Company owns seventy-five percent of the outstanding
shares of capital stock), 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 of any Pricing
Agreement or consummation of the transactions contemplated hereby or by any
Pricing Agreement result in a violation of, or constitute a default under,
the certificate of incorporation, by-laws 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
5
<PAGE>
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 Trust Indenture Act, the Federal Power Act, the laws of
the States of Colorado and Michigan 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 and any applicable Pricing 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 Prospectus as amended or supplemented
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 Prospectus as amended or supplemented,
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 Company has not distributed and will not distribute prior to
the Closing Date any offering material
6
<PAGE>
in connection with the offering and sale of the Designated Securities other
than the Registration Statement, the Prospectus, the Prospectus Supplement
or other materials, if any, permitted by the Act;
(m) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and
(n) The accountants who have audited and reported upon the financial
statements filed with the Commission as part of the Registration Statement
and the Prospectus as amended or supplemented are independent accountants
as required by the Act and the regulations thereunder. The consolidated
financial statements and schedules (including the related notes) included
or incorporated by reference in the Registration Statement or Prospectus as
amended or supplemented fairly present the consolidated financial position,
the results of operations and changes in financial condition of the entity
or entities to which such statements relate at the respective dates and for
the respective periods to which they apply. Such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied, except as set forth in the Registration Statement and
Prospectus as amended or supplemented. The other financial and statistical
information and data set forth in the Registration Statement and the
Prospectus as amended or supplemented are fairly presented and have been
prepared on a basis consistent with such financial statements and the books
and records of the entities purported to be shown thereby.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the
7
<PAGE>
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
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to the Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the
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<PAGE>
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which mature more than one year after
such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
6. 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 Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary 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 Pricing Agreement, any
Indenture or supplement thereto, any Blue Sky and/or Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the 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 fees
charged by securities rating services for rating the Securities; (v) any filing
fees incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing, issuing and delivering the Securities; (vii) the fees and expenses of
any trustee and any agent of any trustee and the fees and disbursements of
counsel for any trustee in connection with any Indenture and the Securities; and
(viii) 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 8 and Section 11 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 Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder
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<PAGE>
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, such counsel being able to rely on the opinion, dated
the Time of Delivery for such Designated Securities, of Blackwell Sanders
Matheny Weary & Lombardi L.C. or on the opinions, dated the Time of
Delivery for such Designated Securities, of local counsel, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Blackwell Sanders Matheny Weary & Lombardi L.C., counsel for the
Company, shall have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives and their 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
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<PAGE>
character (except as described in the Registration Statement);
(ii) Each Subsidiary of the Company (other than foreign
subsidiaries has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in
good standing in each jurisdiction in which the failure so to qualify
would have a materially 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;
(iii) The Company has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement, the
Pricing Agreement with respect to the Designated Securities and the
Indenture, to borrow money as contemplated in this Agreement, the
Pricing Agreement with respect to the Designated Securities and the
Indenture, and to issue, sell and deliver the Designated Securities;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery by
the Trustee) constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general principles
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law);
(vi) The orders of the Federal Energy Regulatory Commission, the
Colorado Public Utilities Commission and the Michigan Public Service
Commission authorizing the issuance and sale of the Designated
Securities are in effect at the Time of Delivery 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 is not called
upon to express an opinion) is required for the issuance and sale of
the Designated Securities or the performance by the Company of its
other obligations under this Agreement or any applicable Pricing
Agreement, except
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<PAGE>
such as are specified, obtained and in effect, and the issuance and
sale of the Designated Securities hereunder are in conformity with
each such approval, authorization, consent and order;
(vii) 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;
(viii) The statements made in the Registration Statement and the
Prospectus as amended or supplemented under the captions "Description
of Securities," "Description of Senior Notes" and "Plan of
Distribution," in Item 15 of the Registration Statement, in the
Company's most recent Annual Report or Form 10-K under the captions
"Business" (but 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;
(ix) The Designated Securities, when executed by the Company and
authenticated in accordance with the terms of the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the
Trustee), and issued and paid for pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except that such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general principles
of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law);
(x) The execution, delivery and performance by the Company of
this Agreement and the Pricing Agreement with respect to the
Designated Securities will not contravene any provision of applicable
law or the certificate of incorporation or the by-laws of the
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<PAGE>
Company or any agreement or other instrument binding upon the Company;
(xi) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus
as amended or supplemented and the outstanding shares of capital stock
of the Company have been duly authorized and are validly issued, fully
paid and nonassessable;
(xii) The documents incorporated by reference in the Prospectus as
amended or supplemented (except for the financial statements and
related schedules 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, 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 and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (except for the financial statements and related schedules
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 Trust Indenture Act and the rules and regulations thereunder; they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Time of Delivery for the Designated Securities
(except for the financial statements and related schedules 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 Prospectus as
amended or supplemented or any
14
<PAGE>
further amendment or supplement thereto made by the Company prior to
the Time of Delivery for the Designated Securities (except for the
financial statements and related schedules 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 Time of Delivery for the
Designated Securities, 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 Time of Delivery
for the Designated Securities (except for the financial statements and
related schedules 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 (xi) 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 (vi) above.
Such counsel shall state that you and they are justified in relying on such
opinions, policies and certificates. With respect to the opinions set forth in
paragraphs (v) and (ix) above, such counsel may assume that the law of New York
is identical to the law of Missouri in all respects material to such opinions.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
Arthur Andersen LLP and any of the other independent accountants of the
Company or the Subsidiaries who have certified the financial statements of
the Company and/or the Subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing
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<PAGE>
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective date,
and a letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such Time
of Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any 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 Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
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 change, or any development involving, or which may reasonably be
expected to involve, a prospective change in or affecting the condition
(financial or other), results of operations, business, prospects, net worth
or assets of the Company and its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preference stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implication, its rating of
any of the Company's debt securities or preference stock;
(g) 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 Time
of Delivery for the Designated Securities and in form and substance
satisfactory to the Representatives and their
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<PAGE>
counsel, to the effect that the statements in the Company's most recent
Annual Report on Form 10-K 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 proceeding
referred to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings;
(h) The Federal Energy Regulatory Commission, the Public Utilities
Commission of the State of Colorado, 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 Designated Securities and
the performance by the Company of its other obligations under this
Agreement and the Pricing Agreement relating to such Designated Securities,
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
Designated Securities to the Underwriters hereunder shall be in conformity
with each Regulatory Action; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of the chief executive officer or the chief
financial officer of the Company (or such other officer as is acceptable to
you) satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a), (e) and (i) of this Section and as to
such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the
17
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statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
18
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entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or
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by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered 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
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more
20
<PAGE>
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company.
10. This Agreement and any applicable Pricing Agreement shall be subject
to termination in the absolute discretion of the Representatives, without
liability on the part of any Underwriter of the Designated Securities relating
to such Pricing Agreement by notice to the Company, if on or after the date of
such Pricing Agreement there shall have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general
21
<PAGE>
moratorium on commercial banking activities in New York or Missouri declared by
either federal or state authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war if the effect of any such event specified in this
Clause (iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: President; provided, however, that any
notice to an Underwriter
22
<PAGE>
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter, at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 11 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
16. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six (6) counterparts hereof.
Very truly yours,
UtiliCorp United Inc.
By:___________________________
Accepted as of the date hereof:
[Name(s) of [Co-]Representative(s)]
By:______________________________________
[Name]
On behalf of each of the Underwriters
23
<PAGE>
ANNEX I
PRICING AGREEMENT
Name(s) of [Co-Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Name
Address
, 199
Ladies and Gentlemen:
UtiliCorp United Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _____________, 199__ (the "Underwriting
Agreement"), between the Company on the one hand and [Name(s)] on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 13
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE>
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
The statements set forth in the [first and second sentences in the last
paragraph] on the cover page of the Prospectus Supplement dated the date hereof
relating to the Designated Securities (the "Prospectus Supplement"), in the
paragraph containing stabilization information on page S-2 of the Prospectus
Supplement and in the [first and second paragraphs and in the second sentence
of the fourth paragraph] under the caption "UNDERWRITING" on page S-3 of the
Prospectus Supplement constitute the only information furnished by and on behalf
of the Underwriters through the Representatives as such information is referred
to in Sections 8 and 9 of the Underwriting Agreement.
If the foregoing is in accordance with your understanding, please sign and
return to us six (6) counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
UtiliCorp United Inc.
By:______________________________
Accepted as of the date hereof:
[Name(s) of [Co-]Representative(s)]
By: ______________________________________
[Name]
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
Principal
amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
$
_____________
Total $
=============
3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if
any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
__% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if
any, from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House funds
INDENTURE:
Indenture, dated as of November 1, 1990, between the Company and The First
National Bank of Chicago, as Trustee, as supplemented by the Supplemental
Indenture, dated as of , 199
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
4
<PAGE>
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
, %, and if] redeemed during the 12-month period beginning
,
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$] principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest].
5
<PAGE>
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES INSERT -
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest rate
will be adjusted on , and to a rate not less than
% of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT -
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , and ]
[to an annual rate of % above the average rate for -year [month]
[securities] [certificates of deposit] issued by and [insert
names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills plus %
of Interest Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for -month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); (from and
thereafter the rate will be the then current interest yield equivalent plus
% of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
6
<PAGE>
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
7
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, each of the
independent accountants shall furnish letters to the Underwriters to the effect
that, severally:
(i) They are independent certified public accountants with respect to
the Company and/or its Subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and/or the Subsidiaries audited and
reported upon by such accountants and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and the
Exchange Act and the regulations thereunder;
(iii) With respect to the entity or entities for which such
accountants have certified the financial statements of the Company and/or
the Subsidiaries included or incorporated by reference in the Registration
Statement (hereinafter, with respect to each of such accountants referred
to as an "Audited Entity"), they have performed specified procedures, not
constituting an audit, including a reading of all of the available interim
consolidated financial statements of the Audited Entity since the end of
the most recent fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of the Audited
Entity and certain of its subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated financial
statements incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented and all of the available interim
unaudited consolidated financial statements of the Audited Entity since the
end of the most recent fiscal year, and such other inquiries and procedures
as may be specified in such letter, and on the basis of such inquiries and
procedures nothing came to such accountant's attention that caused them to
believe that: (A) the unaudited consolidated financial statements of the
Audited Entity incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the rules and regulations thereunder or were not fairly
presented on a basis substantially consistent with that of the
corresponding audited financial statements incorporated by reference
therein, or (B) at a specified date not more than five days prior to the
date of such letter, there was any change in the outstanding capital stock
(in the case of a corporation) of the Audited Entity or consolidated
long-term debt of the Audited Entity, or any increase in preferred stock of
the Audited Entity, in each case as compared with
<PAGE>
the amounts shown on the most recent consolidated balance sheet of the
Audited Entity incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented, except in each such case as set
forth in or contemplated by the Registration Statement and Prospectus as
amended or supplemented or except for such exceptions enumerated in such
letter as shall have been agreed to by the Underwriters and the Company;
and
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented, and the limited procedures referred
to in clause (iii) above, such accountants have carried out certain other
specified procedures, not constituting an audit, with respect to certain
financial information which is included or incorporated by reference in the
Registration Statement and Prospectus as amended or supplemented, which are
specified by the Underwriters or their counsel, and have found such
financial information to be in agreement with the relevant accounting,
financial and other records of the Audited Entity identified in such
letter.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
2
<PAGE>
Exhibit 4(a)(10)
________________________________________________________________________________
________________________________________________________________________________
UTILICORP UNITED INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
____________________
____% Senior Notes Due ____
____________________
_____ SUPPLEMENTAL INDENTURE
Dated as of __________, 199_
____________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
_____ SUPPLEMENTAL INDENTURE, dated as of __________, 199_ (herein
called the "_____ 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
WHEREAS, the Company desires to create a series of the Securities in
an aggregate principal amount of $___________ to be
<PAGE>
designated the "____% Senior Notes Due ____" (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 _____ 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 _____ 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.
NOW, THEREFORE, THIS _____ 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
forms of Senior Notes attached hereto as Exhibit A and Exhibit B.
ARTICLE TWO
TERMS AND ISSUANCE OF THE SENIOR NOTES
<PAGE>
3
Section 201. ISSUE OF SENIOR NOTES. A series of Securities which
shall be designated the "____% Senior Notes Due ____" 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 _____ Supplemental Indenture (including the form of
Certificated Senior Note set forth as Exhibit A and the form of Global Senior
Note set forth as Exhibit B 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 $___________.
Section 202. FORM OF SENIOR NOTES; INCORPORATION OF TERMS. The form
of the Senior Notes shall be (i) substantially in the form of Exhibit A attached
hereto if the Company advises the Trustee that the Senior Notes are not to be
issued as Global Securities, or (ii) substantially in the form of Exhibit B
attached hereto if the Company does not so notify the Trustee. The terms of
such Senior Notes are herein incorporated by reference and are part of this
_____ 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.
<PAGE>
4
ARTICLE THREE
MISCELLANEOUS
Section 301. EXECUTION OF SUPPLEMENTAL INDENTURE. This _____
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this _____ 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 _____ 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 _____ 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
_____ 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.
<PAGE>
5
Section 306. BENEFITS OF _____ SUPPLEMENTAL INDENTURE. Nothing in
this _____ Supplemental Indenture or in 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 _____ Supplemental Indenture.
Section 307. GOVERNING LAW. This _____ 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 _____ 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>
6
IN WITNESS WHEREOF, the parties hereto have caused this _____
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: ___________________________
Name:
Title:
Attest:
________________________
Title:
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
[Seal] By: ___________________________
Name:
Title:
Attest:
___________________________
Title:
<PAGE>
STATE OF ________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ________, 199_, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________________ 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.
______________________________
Notary Public,
State of ________
STATE OF ________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ________, 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ 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.
_______________________________
Notary Public,
State of ________
<PAGE>
EXHIBIT A
[FORM OF FACE OF CERTIFICATED SENIOR NOTE]
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 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
<PAGE>
- 2 -
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 CERTIFICATED 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 $___________.
[This Security is not subject to any sinking fund.] [This Security is
subject to the following mandatory sinking fund ______________.] [This Security
is subject to the following optional sinking fund __________________.] [This
Security may not be redeemed at the option of the Company prior to the Maturity
Date.] [This Security may be redeemed at the option of the Company on any date
on or after ______________ (the "Redemption Date"). On and after the Redemption
Date this Security may be redeemed at any time in whole or from time to time in
part at the option of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption Date, on notice
given to the Holder not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Security in part only, a
new Security for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the surrender hereof.]
[If this Security is redeemable at the option of the Company, the
"Redemption Price" shall initially be ____% (the "Initial Redemption
Percentage") of the principal amount of this Security to be redeemed and shall
decline at each anniversary of the Redemption Date by ____% (the "Annual
Redemption Percentage Reduction") of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.]
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
<PAGE>
- 2 -
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 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.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security 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
<PAGE>
- 3 -
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series 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>
EXHIBIT B
[FORM OF FACE OF GLOBAL SENIOR NOTE]
REGISTERED REGISTERED
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.
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 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
<PAGE>
- 2 -
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 GLOBAL 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 $___________.
[This Security is not subject to any sinking fund.] [This Security is
subject to the following mandatory sinking fund ______________.] [This Security
is subject to the following optional sinking fund ______________.] [This
Security may not be redeemed at the option of the Company prior to the Maturity
Date.] [This Security may be redeemed at the option of the Company on any date
on or after ______________ (the "Redemption Date"). On and after the Redemption
Date this Security may be redeemed at any time in whole or from time to time in
part at the option of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption Date, on notice
given to the Holder not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Security in part only, a
new Security for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the surrender hereof].
[If this Security is redeemable at the option of the Company, the
"Redemption Price" shall initially be ____% (the "Initial Redemption
Percentage") of the principal amount of this Security to be redeemed and shall
decline at each anniversary of the Redemption Date by ____% (the "Annual
Redemption Percentage Reduction") of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.]
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.
<PAGE>
- 2 -
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 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 (i) the Depositary notifies the Company it is unable or
unwilling 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,
(ii) the Company executes and delivers to the Trustee an Officers' Certificate
providing that this Security shall be so exchangeable or (iii) 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 Date and having
the same terms as this
<PAGE>
- 3 -
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.
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>
[LETTERHEAD OF BLACKWELL SANDERS]
August 29, 1997
EXHIBIT 5
UtiliCorp United, Inc.
20 West Ninth
Kansas City, MO 64105
Gentlemen:
We refer to the Registration Statement of UtiliCorp United Inc. (the
"Company") on Form S-3 proposed to be filed with the Securities and Exchange
Commission for the purpose of registering under the Securities Act of 1933,
as amended, senior notes of the Company in the aggregate offering price of up
to $250,000,000.
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 senior notes have been issued and
delivered as contemplated by the Registration Statement such debt securities
will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, moratorium and
other similar laws relating to or affecting creditors' rights generally and
to general equitable principles.
We hereby consent to the reference to us under the heading "Legal
Opinions" in the prospectus constituting a part of the Registration Statement
and the filing of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ BLACKWELL SANDERS MATHENY WEARY & LOMBARDI LLP
<PAGE>
EXHIBIT 12 UTILICORP UNITED INC.
Ratio of Earnings to Fixed Charges
(dollars in thousands)
<TABLE>
<CAPTION>
12 months ended Years ended Dec 31,
June 30, 1997 1996 1995* 1994* 1993* 1992*
--------------- --------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Income from continuing operations
before provision for income taxes.......... $205,200 $186,460 $131,812 $146,532 $116,366 $84,541
Add:
Interest on long-term debt................. 119,800 126,933 110,227 89,526 89,027 88,857
Interest on short-term debt and other...... 10,949 18,151 16,847 7,257 7,207 7,329
Portion of rents representative of
the interest factor........................ 16,740 16,537 15,346 15,329 15,008 14,600
--------------- --------------------------------------------------
Income as adjusted.......................... $352,689 $348,081 $274,232 $258,644 $227,608 $195,327
--------------- --------------------------------------------------
Fixed Charges
Interest on long-term debt................. $119,800 $126,933 $110,227 $89,526 $89,027 $88,857
Interest on short-term debt................. 10,949 18,151 16,847 7,257 7,207 7,329
Portion of rents representative of
the interest factor......................... 16,740 16,537 15,346 15,329 15,008 14,600
--------------- --------------------------------------------------
Fixed Charges............................... $147,489 $161,621 $142,420 $112,112 $111,242 $110,786
--------------- --------------------------------------------------
Ratio of Earnings to Fixed Charges.......... 2.39 2.15 1.93 2.31 2.05 1.76
----------------------------------------------------------
</TABLE>
*Restated to reflect a change in accounting for the Company's Accounts
Receivable Sales Program.
<PAGE>
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference, in this Registration Statement (Form S-3) used to register $250
million of senior notes, of our reports dated February 11, 1997, included in
UtiliCorp United Inc.'s Annual Report on Form 10-K for the year ended December
31, 1996, and to all references to our firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
August 29, 1997
<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 $250,000,000 of Senior Notes of
UtiliCorp United Inc.
Executed this 7th day of May, 1997.
/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/ STANLEY O. IKENBERRY
- -------------------------- --------------------------
HERMAN CAIN STANLEY O. IKENBERRY
/S/ ROBERT GREEN /S/ DALE J. WOLF
- -------------------------- --------------------------
ROBERT GREEN DALE J. WOLF
/S/ TERRY G. WESTBROOK
- --------------------------
TERRY G. WESTBROOK
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
-----
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------------------------
UTILICORP UNITED INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 44-0541877
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
20 WEST NINTH STREET
KANSAS CITY, MISSOURI 64105
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SENIOR NOTES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 26th day of August, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ Steven M. Wagner
-----------------------------
Steven M. Wagner
Vice President and Senior Counsel
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica Inc. filed with the Securities and Exchange Commission on October 25,
1996 (Registration No. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 26, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between UtiliCorp United
Inc. and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ Steven M. Wagner
------------------------------
Steven M. Wagner
Vice President and Senior Counsel
4
<PAGE>
<TABLE>
EXHIBIT 7
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1). . . . . . . . . . 0081 3,871,170 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . . . . 0071 6,498,314 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A). . . . . . . . 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . 1773 3,901,208 2.b.
3. Federal funds sold and securities purchased under agreements to
resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1350 4,612,975 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .RCFD 2122 23,345,201 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . . . . .RCFD 3123 420,963 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . . . .RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . . . . 2125 22,924,238 4.d.
5. Trading assets (from Schedule RD-D) . . . . . . . . . . . . . . . . . . . . 3545 8,792,158 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . 2145 706,928 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . . . . . . . . . 2150 6,563 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . 2130 61,551 8.
9. Customers' liability to this bank on acceptances outstanding. . . . . . . . 2155 488,866 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . 2143 291,569 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . 2160 1,775,283 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . 2170 53,930,823 12.
</TABLE>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading
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<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
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</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
-------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1). . . . . . . . . . . . . . . . . . . . . . . RCON 2200 21,550,056 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . . . . . . . .RCON 6631 8,895,137 13.a.1
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . .RCON 6636 12,654,919 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . . . . . . . . RCFN 2200 12,364,650 13.b.
(1) Noninterest bearing. . . . . . . . . . . . . . . . . . . . . . . . .RCFN 6631 287,496 13.b.1
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . .RCFN 6636 12,077,154 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2800 3,817,421 14
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . RCON 2840 63,621 15.a.
b. Trading Liabilities(from Sechedule RC-D) . . . . . . . . . . . . . . . . RCFD 3548 5,872,831 15b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . . . . . . . . RCFD 2332 2,607,549 16.a.
b. With original maturity of more than one year. . . . . . . . . . . . . . RCFD 2333 322,414 16b.
17. Not applicable
18. Bank's liability on acceptance executed and outstanding . . . . . . . . . . RCFD 2920 488,866 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . RCFD 3200 1,550,000 19.
20. Other liabilities (from Schedule RC-G). . . . . . . . . . . . . . . . . . . RCFD 2930 1,196,229 20.
21. Total liabilities (sum of items 13 through 20). . . . . . . . . . . . . . . RCFD 2948 49 ,833,637 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . RCFD 3838 0 23.
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock). . . . . . . . . . RCFD 3839 2,944,244 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . RCFD 3632 954,885 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (1,089) 26.b.
27. Cumulative foreign currency translation adjustments . . . . . . . . . . . . RCFD 3284 (1,712) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . . . . . . . . . RCFD 3210 4,097,186 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . . . . . . . . RCFD 3300 53,930,823 29.
<CAPTION>
<S> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . ....RCFD 6724 . ..../ 2 / M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
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