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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 10, 1998
UTILICORP UNITED INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
1-3562 44-0541877
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(Commission File Number) (IRS Employer Identification No.)
20 West 9th, Kansas City, Missouri 64105
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(Address of principal executive offices) (Zip Code)
(816) 421-6600
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(Registrant's telephone number including area code)
Not Applicable
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(Former name of former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibits
1(b)(1) - U.S. Purchase Agreement for Common Stock
1(b)(2) - International Purchase Agreement for Common Stock
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
UtiliCorp United Inc.
By: /s/ Dale J. Wolf
Dale J. Wolf
Vice President, Finance, Treasurer and Corporate Secretary
Date: December 11, 1998
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7,200,000 SHARES
UTILICORP UNITED INC.
COMMON STOCK
U.S. PURCHASE AGREEMENT
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December 10, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
As Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
UtiliCorp United Inc., a Delaware corporation (the "Company"), proposes
to issue and sell an aggregate of 7,200,000 shares (the "Initial U.S.
Securities") of its common stock, par value $1 per share (the "Common Stock"),
to the several U.S. Underwriters named in Schedule I hereto (the
"Underwriters"). The Company also proposes to sell to the Underwriters, upon the
terms and conditions set forth in Section 2 hereof, up to an additional
1,080,000 shares (the "U.S. Option Securities") of Common Stock. The Initial
U.S. Securities together with the U.S. Option Securities shall be referred to
as the "U.S. Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 800,000 shares of
Common Stock (the "Initial International Securities" and together with the
Initial U.S. Securities, the "Initial Securities") through arrangements with
certain underwriters outside the United States and Canada (the "International
Managers") for which Merrill Lynch International, Goldman Sachs International,
Morgan Stanley & Co. International Limited and PaineWebber International (UK)
Ltd. are acting as representatives. The Company also proposes to sell to the
International Managers, upon the terms and conditions set forth in the
International Purchase Agreement, up to an additional 120,000 shares (the
"International Option Securities and, together with the U.S. Option Securities,
the "Option Securities") of Common Stock. The Initial International Securities
together with the International Option Securities shall be referred to as the
"International Securities". The U.S. Securities together with the International
Securities shall be referred to as the "Securities". It is
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understood that the Company is not obligated to sell and the Underwriters are
not obligated to purchase, any Initial U.S. Securities unless all of the
Initial International Securities are contemporaneously purchased by the
International Managers.
The Underwriters and the International Managers will concurrently enter
into an Intersyndicate Agreement of even date herewith (the "Intersyndicate
Agreement") providing for the coordination of certain transactions among the
Underwriters and the International Managers under the direction of Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in such capacity, the
"Global Coordinator").
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the U.S. Securities by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Securities. The term "Registration Statement" as used in this Agreement means
the registration statement (including all financial schedules and exhibits), as
supplemented or amended prior to the execution of this Agreement. The term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement, as supplemented by the prospectus supplement
relating to the U.S. Securities (the "U.S. Prospectus Supplement") and the
prospectus supplement relating to the International Securities (the
"International Prospectus Supplement") in the forms filed with the Commission
pursuant to Rule 424(b). The term "Preliminary Prospectus" as used in this
Agreement means any preliminary prospectus included in the Registration
Statement or filed with the Commission under Rule 424(a) or any preliminary
prospectus supplement to the prospectus included in the Registration Statement
and filed with the Commission under Rule 424(b) and as such prospectus or
prospectus supplement shall have been amended from time to time prior to the
date of the Prospectus. Any reference in this Agreement to the registration
statement, the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of the registration statement, the Registration Statement, such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to any
amendment or supplement to the registration statement, the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") which, upon filing, are
incorporated by reference therein, as required by paragraph (b) of Item 12 of
Form S-3. As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in the registration statement,
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $35.1075 per Share (the
"purchase price per share"), the
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number of Initial U.S. Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Initial U.S. Securities
increased as set forth in Section 10 hereof).
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase from the Company, at the purchase price per share,
pursuant to an option (the "over-allotment option") which may be exercised at
any time and from time to time prior to 9:00 P.M., New York City time, on the
30th day after the date of the Prospectus (or, if such 30th day shall be a
Saturday or Sunday or a holiday, on the next business day thereafter when the
New York Stock Exchange is open for trading), up to an aggregate of 1,080,000
U.S. Option Securities. The U.S. Option Securities may be purchased only for the
purpose of covering over-allotments made in connection with the offering of the
Initial U.S. Securities. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of U.S. Option Securities (subject to such adjustments as you may
determine in order to avoid fractional shares) which bears the same proportion
to the number of U.S. Option Securities to be purchased by the Underwriters as
the number of Initial U.S. Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Initial U.S. Securities
increased as set forth in Section 10 hereof) bears to the aggregate number of
Initial U.S. Securities.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Underwriters and the International Managers propose to make a public
offering of their respective portions of the applicable U.S. Securities and
International Securities and initially to offer the U.S. Securities and
International Securities upon the terms set forth in the Prospectus.
4. DELIVERY OF THE U.S. SECURITIES AND PAYMENT THEREFOR. Delivery to
the Underwriters of and payment for the Initial U.S. Securities shall be made at
the office of Milbank, Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New
York, NY 10005, at 10:00 A.M., New York City time, on Thursday, December 16,
1998 (the "Closing Date"). The place of closing for the Initial U.S. Securities
and the Closing Date may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any U.S. Option
Securities to be purchased by the Underwriters shall be made at the
aforementioned office of Milbank, Tweed, Hadley & McCloy at such time on such
date (the "Option Closing Date"), which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor earlier than two nor
later than ten business days after the giving of the notice hereinafter referred
to, as shall be specified in a written notice from you on behalf of the
Underwriters to the Company of the Underwriters' determination to purchase a
number, specified in such notice, of U.S. Option Securities. The place of
closing for any U.S. Option Securities and the Option Closing Date for such U.S.
Option Securities may be varied by agreement between you and the Company.
Certificates for the Initial U.S. Securities and for any U.S. Option
Securities to be purchased hereunder shall be registered in such names and in
such denominations as you shall request prior to 9:30 A.M., New York City time,
on the second business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to you in
New York City for inspection and packaging not later than 9:30 A.M., New York
City time, on the
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business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Initial U.S. Securities and any
U.S. Option Securities to be purchased hereunder shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, against payment
of the purchase price therefor by wire transfer of immediately available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) The Company will advise you promptly after it receives
notice thereof and, if requested by you, will confirm such advice in writing:
(i) of any request by the Commission for amendment of or a supplement to the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (e) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(b) The Company will furnish to you, without charge (i) five
(5) signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv) five (5)
copies of the exhibits to the Incorporated Documents.
(c) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus or,
prior to the end of the period of time referred to in the first sentence in
subsection (e) below, file any document which, upon filing becomes an
Incorporated Document, of which you shall not previously have been advised or to
which, after you shall have received a copy of the document proposed to be
filed, you shall reasonably object.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each Preliminary Prospectus. The Company consents to the
use, in accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Securities are offered by the
several Underwriters and by dealers, prior to the date of the Prospectus, of
each Preliminary Prospectus so furnished by the Company.
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(e) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the several Underwriters and by all dealers to whom
Securities may be sold, both in connection with the offering and sale of the
Securities and for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection with sales by any Underwriter or
dealer. If during such period of time any event shall occur that in the judgment
of the Company or in the opinion of counsel for the Underwriters is required to
be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (c) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Company and you, as Representatives of the
several Underwriters, agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(f) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as the Global
Coordinator may designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company Rule 158).
(h) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 10
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hereof or by notice given by you terminating this Agreement pursuant to
Section 10 hereof) or if this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with the
terms or fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the Representatives for all out-of-pocket expenses (including fees and
expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(j) The Company will apply the net proceeds from the sale of
the Securities substantially in accordance with the description set forth in
the Prospectus.
(k) The Company will timely file the Prospectus pursuant to
Rule 424(b) under the Act and will advise you of the time and manner of such
filing.
(l) Except as provided in this Agreement and the International
Purchase Agreement, the Company will not sell, contract to sell or otherwise
dispose of any Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or sell or grant any options or warrants to
purchase, or purchase any option or contract to sell, Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, for a period of 90 days after the date of the
Prospectus, without the prior written consent of the Global Coordinator, other
than shares and options issued pursuant to Company employee and director plans
and Company dividend, and interest reinvestment and stock purchase plans.
(m) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Securities.
(n) The Company will cause the shares of Common Stock which
it agrees to sell under this Agreement to be listed, subject only to official
notice of issuance, on the New York, Pacific and Toronto Stock Exchanges on or
before the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) Each Preliminary Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act except that
this representation and warranty does not apply to statements in or omissions
from such Preliminary Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any Underwriter
or International Manager furnished to the Company in writing by or on behalf of
any Underwriter or International Manager through you expressly for use therein.
The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Company and the transactions contemplated by this
Agreement and the International Purchase Agreement meet the requirements for
using Form S-3 under the Act. The
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registration statement in the form in which it became effective and also in
such form as it may be when any post-effective amendment thereto shall become
effective and the Prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and will not at any such
times contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which they
were made) not misleading, except that this representation and warranty does not
apply to statements in or omissions from the registration statement or the
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter or International Manager furnished to the Company in writing by
or on behalf of any Underwriter or International Manager through you expressly
for use therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, and
any further Incorporated Documents so filed will, when they are filed, conform
in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) Neither the Company nor any of its subsidiaries (each a
"Subsidiary and, collectively, the "Subsidiaries") has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and its
Subsidiaries taken as a whole, or sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Preliminary Prospectus and the Prospectus; and, since the
respective dates as of which information is given in the Preliminary Prospectus
and the Prospectus, there has not been any material change in the capital stock,
or material increase in the short-term debt or long-term debt, of the Company or
any of its Subsidiaries or any material adverse change, or any development
involving, or which may reasonably be expected to involve, a prospective
material adverse change in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Preliminary Prospectuses and the Prospectus;
(e) This Agreement and the International Purchase Agreement
have been duly authorized by the Company and conform in all material respects to
the descriptions thereof in the Preliminary Prospectus and the Prospectus;
(f) The Securities, upon issuance and delivery and payment
therefor in the manner described herein, will be duly authorized, validly
issued, fully paid and nonassessable. The Securities conform to the descriptions
thereof in the Preliminary Prospectus and the Prospectus. There are no
preemptive or other rights to subscribe for or to purchase, or any restriction
upon the
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transfer of, any shares of the Company's capital stock, including the
Securities when issued, pursuant to the Company's certificate of incorporation,
bylaws or other governing documents or any agreement or other instrument to
which the Company or any of its Subsidiaries is a party or by which it may be
bound. Neither the filing of the Registration Statement nor the offering or sale
of the Securities as contemplated by this Agreement and the International
Purchase Agreement gives rise to any rights, other than those which have been
waived or satisfied, for or relating to the registration of any shares of the
Company's capital stock;
(g) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business conducted
by it or the location of the properties owned or leased by it makes such
qualification necessary. All of the outstanding shares of capital stock of the
Company and all of the outstanding shares of capital stock of each Subsidiary,
have been duly authorized and validly issued, are fully paid and nonassessable.
All of the outstanding shares of capital stock of each Subsidiary that are owned
directly or indirectly by the Company are owned 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 of this Agreement or the
International Purchase Agreement or consummation of the transactions
contemplated by such agreements result in a violation of, or constitute a
default under, the certificate of incorporation, bylaws or other governing
documents of the Company or any of its Subsidiaries, or any agreement, indenture
or other instrument to which the Company or any of its Subsidiaries is a party
or by which any of them is bound, or to which any of their properties is
subject, nor will the performance by the Company of its obligations under this
Agreement and the International Purchase Agreement violate any law, rule,
administrative regulation or decree of any court or any governmental agency or
body having jurisdiction over the Company, its Subsidiaries or any of their
properties, or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of the Company or any of its
Subsidiaries which would be material to the Company and its Subsidiaries taken
as a whole. Except for permits and similar authorizations required under the
Act, the Federal Power Act, the laws of the States of Colorado and West Virginia
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 the International Purchase 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 Preliminary Prospectus and the Prospectus or
such as do not materially affect the values of such property and do not
interfere with the use made or proposed to be made of such property by the
Company or such Subsidiaries; and any real property and buildings held under
lease by the Company and its Subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as
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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 Preliminary Prospectus and the
Prospectus, there is no litigation or governmental proceeding to which the
Company or any of its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
Subsidiaries which might result in any material adverse change in the condition
(financial or other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(k) Neither the Company nor any Subsidiary is in violation of
any law, ordinance, governmental rule or regulation or court decree to which it
is subject which violation would have a material adverse effect on the condition
(financial or other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(l) The accountants who have certified or shall certify the
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus (or any amendment or supplement thereto) are
independent public accountants as required by the Act.
(m) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and the Subsidiaries on the basis stated in the
Registration Statement and the Prospectus at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
included or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Company and the Subsidiaries.
(n) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Securities will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement, the
Preliminary Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(o) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any
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Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or in the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
such Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by the Global Coordinator and that all
such fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Underwriter,
to the extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each
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Underwriter, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Preliminary
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, or any such controlling person based on the Registration Statement, the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights and
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Company, its directors, any such officer, and
any such controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the U.S. Prospectus Supplement. The relative fault of the
Company on the one hand and the Underwriters on the other hand 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 by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by a pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Securities underwritten by it and
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distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Initial U.S. Securities set forth opposite their names in Schedule I hereto
(or such numbers of Initial U.S. Securities increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and no statement of fault or
culpability is attributed to the indemnified party in connection with such
settlement.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Securities and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase the Initial U.S. Securities hereunder are subject
to the following conditions:
(a) All filings, if any, required by Rules 424 under the Act
shall have been timely made; no stop order suspending the effectiveness of the
registration statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company, any Underwriter
or International Manager, threatened by the Commission, and any request of the
Commission for additional information (to be included in the registration
statement or the prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth, or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
opinion, as Representatives of the several Underwriters, would materially
adversely affect the market for the Securities, or (ii) any event or development
relating to or involving the Company or any officer or director of the Company
which makes any statement made in the Prospectus untrue or which, in the opinion
of the Company and its counsel or the Underwriters and their counsel, requires
the making
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of any addition to or change in the Prospectus in order to state a material
fact required by the Act or any other law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in your
opinion, as Representatives of the several Underwriters, materially adversely
affect the market for the Securities.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters, dated the Closing
Date, with respect to the validity of the Securities, the Registration
Statement, the Prospectus, and other related matters as you reasonably may
request, such counsel being able to rely on the opinion, dated the Closing Date
or the Option Closing Date, as the case may be, of Blackwell Sanders Peper
Martin LLP or on the opinions, dated the Closing Date or the Option Closing
Date, as the case may be, of local counsel, and the Company shall have furnished
to such counsel such papers and information as they request to enable them to
pass upon such matters.
(d) You shall have received on the Closing Date an opinion of
Blackwell Sanders Peper Martin LLP counsel for the Company, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters, in
form and substance satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, has duly obtained or has
succeeded to and holds all material franchises and other
governmental and corporate authority necessary to carry on the
public utility business in which it is engaged and to own,
lease and operate the properties in use in such business and
the maintenance of such franchises and other authority is not
subject to any burdensome restriction or condition of an
unusual character (except as described in the Registration
Statement);
(ii) Each Subsidiary of the Company (other than the
Company's foreign subsidiaries) has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation;
(iii) The Company has full corporate power and
corporate authority to enter into and perform its obligations
under this Agreement and the International Purchase Agreement
with respect to the Securities and to issue the Securities;
(iv) This Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered
by the Company;
(v) The shares of the Company's Common Stock
outstanding prior to the issuance of the Securities have been
duly authorized and are validly issued, fully paid and
nonassessable. There are no preemptive or other rights to
subscribe for or to purchase, or any restriction upon the
transfer of, any shares of the Company's Common Stock,
including the Securities when issued, pursuant to the
Company's certificate of incorporation, bylaws, or any
agreement or other instrument known to
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such counsel to which the Company or any of its Subsidiaries
is a party or by which any of them may be bound, and neither
the filing of the Registration Statement nor the offering or
sale of the Securities as contemplated by this Agreement and
the International Purchase Agreement, respectively gives rise
to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares
of the Company's Common Stock under the Company's certificate
of incorporation, bylaws or any agreement or other instrument
binding upon the Company known to such counsel;
(vi) The Securities have been duly authorized, and,
when delivered in accordance with the terms of this Agreement
and the International Purchase Agreement will be validly
issued, fully paid and nonassessable;
(vii) The orders of the Federal Energy Regulatory
Commission, the Public Utilities Commission of Colorado and
the Public Service Commission of West Virginia authorizing the
issuance and sale of the Securities are in effect on the
Closing Date and no other approval, authorization, consent or
order of any federal, state or local commission or
governmental authority (other than under state securities or
Blue Sky laws, as to which such counsel need express no
opinion) is required for the issuance and sale of the
Securities or the performance by the Company of its other
obligations under this Agreement and the International
Purchase Agreement, except such as are specified, obtained and
in effect, and the issuance and sale of the Securities
hereunder are in conformity with each such approval,
authorization, consent and order;
(viii) After due inquiry, such counsel does not know
of any legal or governmental proceeding pending or threatened
to which the Company or its Subsidiaries is a party or to
which any of the properties of the Company is subject that is
required to be described in the Registration Statement or the
Prospectus as amended or supplemented and is not so described
or of any contract or other document that is required to be
described in the Registration Statement or the Prospectus as
amended or supplemented or to be filed as an exhibit to the
Registration Statement that is not described or filed as
required;
(ix) The statements made in the Registration
Statement and the Prospectus as amended or supplemented under
the captions "Description of Common Stock", "Certain United
States Tax Considerations for Non-United States Holders" and
"Underwriting", in Item 15 of the Registration Statement, in
the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 under the caption "Legal Proceedings",
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings;
(x) The execution, delivery and performance by the
Company of this Agreement and the International Purchase
Agreement will not violate any provision of applicable law or
the certificate of incorporation or the bylaws of the Company
or breach, or result in a default under, any existing
obligation of the Company under
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any agreement or other instrument binding upon the Company
known to such counsel;
(xi) The authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Preliminary Prospectus and the Prospectus.
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and the other
financial information and data therein, as to which such
counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder,
and they have no reason to believe that any of such documents,
(other than the financial statements and related schedules and
the other financial information and data therein, as to which
such counsel need express no opinion), when they became
effective or were so filed, as the case may be, contained in
the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading; and
(xiii) The Registration Statement has become
effective under the Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the best of such counsel's knowledge, no proceedings
for that purpose have been instituted or are pending before or
contemplated by the Commission and all filings required by
Rule 424 under the Act have been made; the Registration
Statement and the Prospectus and any amendments and
supplements thereto, (other than the financial statements and
related schedules and the other financial information and data
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder; they have no reason to believe that, as of its
effective date, the Registration Statement or amendment
thereto (other than the financial statements and related
schedules and the other financial information and data
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, as of its date, the Preliminary Prospectus and the
Prospectus or any amendment or supplement thereto (other than
the financial statements and related schedules and the other
financial information and data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that,
as of the Closing Date for the Securities, either the
Registration Statement or the Prospectus as amended or
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supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date for the
Securities (other than the financial statements and related
schedules and the other financial information and data
therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or any
contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference
or described as required.
In giving the foregoing opinions, such counsel may rely on (1)
the opinions of local counsel, with respect to the opinion set forth in
paragraph (i) above, (2) the opinions heretofore rendered by Gary J.
Brouillette, Esq. and Messrs. Gage & Tucker with respect to the opinion set
forth in paragraph (v) above and (3) the opinions of local counsel and the
opinion of Hogan & Hartson L.L.P. with respect to the opinion set forth in
paragraph (vii) above. Such counsel shall state that you and they are justified
in relying on such opinions.
(e) On or prior to the Closing Date (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;
(f) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Arthur Andersen LLP, independent certified public accountants,
who have certified the financial statements of the Company and/or the
Subsidiaries included or incorporated by reference in the Registration Statement
substantially in the forms heretofore approved by you.
(g)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company other than shares
of Common Stock and options issued pursuant to Company employee and director
plans and Company dividend and interest reinvestment and stock purchase plans
nor any material increase in the short-term or long-term debt of the Company
(other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectus (or any amendment
or supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct
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<PAGE>
or contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries, taken as a whole, other than those
reflected in the Registration Statement or the Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties of the
Company contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by the chief executive officer or the chief financial officer of the
Company (or such other officer as is acceptable to you), to the effect set forth
in this Section 8(g) and in Section 8(h) hereof.
(h) The Federal Energy Regulatory Commission, the Public
Utilities Commission of Colorado and the Public Service Commission of West
Virginia 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 Securities and the performance
by the Company of its other obligations under this Agreement and the
International Purchase Agreement, each Regulatory Action shall be in effect, no
proceedings to suspend the effectiveness of any Regulatory Actions shall be
pending or threatened, no Regulatory Action shall contain any provision or
condition that is unacceptable to the Underwriters, and the issuance and sale of
the Securities to the Underwriters and the International Managers, respectively
shall be in conformity with each Regulatory Action;
(i) Contemporaneously with the purchase by the Underwriters of
the Initial U.S. Securities under this Agreement, the International Managers
shall have purchased the International Securities under the International
Purchase Agreement.
(j) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements contained
in this Agreement and the International Purchase Agreement and which are
required to be performed or complied with by it hereunder and thereunder at or
prior to the Closing Date.
(k) The Securities shall have been approved for listing,
subject only to official notice of issuance, on the New York, Pacific and
Toronto Stock Exchanges.
(l) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company and delivered to you, as Representatives of the Underwriters, or to
counsel for the Underwriters, shall be deemed a representation and warranty by
the Company to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase U.S.
Option Securities hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 8, except that,
if any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (f) shall be dated
the Option
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Closing Date in question and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of U.S. Option Securities.
9. EXPENSES. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the 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, the International Purchase
Agreement, 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(g) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and/or legal investment surveys; (iv) any filing fees incident
to any required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Securities; (v) the cost of preparation,
printing, authentication, issuance and delivery of certificates for the
Securities, including all taxes on the transfer and sale of the Securities and
the transfer of the Securities between and among the Underwriters and the
International Managers; (vi) the fees and expenses of any transfer agent and
registrant for the Securities; and (vii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 7 and Section 5(j) hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the U.S. Securities, including
the International Securities, by them, and any advertising expenses connected
with any offers they may make.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If any one or more of the Underwriters shall fail or refuse to
purchase U.S. Securities which it or they are obligated to purchase hereunder on
the Closing Date, and the aggregate number of U.S. Securities which such
defaulting Underwriter or Underwriters are obligated but fail or refuse to
purchase is not more than one-tenth of the aggregate number of U.S. Securities
which the Underwriters are obligated to purchase on the Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Initial U.S. Securities set forth opposite its name in
Schedule I hereto bears to the aggregate number of Initial U.S. Securities set
forth opposite the names of all non-defaulting Underwriters or in such other
proportion as you may specify, to purchase the U.S. Securities which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase U.S. Securities which it or they are obligated to purchase on the
Closing Date and the aggregate number of U.S. Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of U.S.
Securities which the Underwriters are obligated to purchase on the Closing Date
and arrangements satisfactory to you and the Company for the purchase of such
U.S. Securities by one or more non-defaulting Underwriters or other party or
parties approved by you and the Company are not made within 72 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the
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Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
the approval of the Company, purchases U.S. Securities which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion after consultation with each other,
without liability on the part of any Underwriter to the Company by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the U.S. Option Securities), as the
case may be, (i) there has been, since the respective dates as of which
information is given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole, (ii) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
shall have been suspended or materially limited, (iii) a general moratorium on
commercial banking activities in New York or Missouri shall have been declared
by either federal or state authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States or elsewhere is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the U.S. Securities or the International Securities
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the U.S. Securities or the
International Securities by the Underwriters and the International Managers,
respectively. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the U.S. Prospectus Supplement under the heading "Underwriting" in (i) the
first paragraph, (ii) the first sentence of the second paragraph, (iii) the
fourth paragraph regarding the terms of the offering, (iv) the tenth paragraph
regarding the Intersyndicate Agreement, (v) the last sentence of the twelfth
paragraph, (vi) the thirteenth, fourteenth and fifteenth paragraphs regarding
stabilization and related activities and the imposition of penalty bids and
(vii) the sixteenth paragraph as it relates to the underwriters constitutes the
only information furnished by or on behalf of the Underwriters through you as
such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 20 W. Ninth Street, Kansas City, Missouri 64105, Attention: President
or (ii) if to you, as Representatives of the several Underwriters, care of
Merrill
19
<PAGE>
Lynch, Pierce, Fenner & Smith Incorporated, World Financial Center, North Tower,
New York, New York 10281, Attention: James McBurney.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Securities in his
status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
20
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
UTILICORP UNITED INC.
By: /s/ Dale J. Wolf
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
PAINE WEBBER INCORPORATED
As Representatives of the Several Underwriters
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ James R.G. McBurney
21
<PAGE>
SCHEDULE I
UTILICORP UNITED, INC.
<TABLE>
Number of
Underwriters Initial U.S. Securities
------------ -----------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated........................................................ 950,000
Goldman, Sachs & Co............................................................. 950,000
Morgan Stanley & Co. Incorporated............................................... 950,000
PaineWebber Incorporated........................................................ 950,000
BT Alex. Brown Incorporated..................................................... 200,000
CIBC Oppenheimer Corp........................................................... 200,000
Donaldson, Lufkin & Jenrette Securities Corporation............................. 200,000
A.G. Edwards & Sons, Inc........................................................ 200,000
J.P. Morgan Securities Inc...................................................... 200,000
Prudential Securities Incorporated.............................................. 200,000
Salomon Smith Barney Inc........................................................ 200,000
Schroder & Co. Inc.............................................................. 200,000
Robert W. Baird & Co. Incorporated.............................................. 100,000
George K. Baum & Company........................................................ 100,000
J.C. Bradford & Co.............................................................. 100,000
Dain Rauscher Wessels, a division of Dain Rauscher Incorporated................. 100,000
Fahnestock & Co. Inc............................................................ 100,000
Janney Montgomery Scott Inc..................................................... 100,000
Jefferies & Company Inc......................................................... 100,000
Edward D. Jones & Co., L.P...................................................... 100,000
Legg Mason Wood Walker, Incorporated............................................ 100,000
McDonald Investments Inc., a KeyCorp Company.................................... 100,000
Morgan Keegan & Company, Inc.................................................... 100,000
Piper Jaffray Inc............................................................... 100,000
Pryor, McClendon, Counts & Co., Inc............................................. 100,000
Raymond James & Associates, Inc................................................. 100,000
The Robinson-Humphrey Company, LLC.............................................. 100,000
Sutro & Co. Incorporated........................................................ 100,000
Utendahl Capital Partners , L.P................................................. 100,000
Wheat First Securities, Inc..................................................... 100,000
-----------------------
Total............................................................ 7,200,000
</TABLE>
22
<PAGE>
800,000 SHARES
UTILICORP UNITED INC.
COMMON STOCK
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
December 10, 1998
Merrill Lynch International
Goldman Sachs International
Morgan Stanley & Co. International Limited
PaineWebber International (U.K.) Ltd.
As Representatives of the
several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
UtiliCorp United Inc., a Delaware corporation (the "Company"), proposes
to issue and sell an aggregate of 800,000 shares (the "Initial International
Securities") of its common stock, (par value $1 per share) (the "Common Stock"),
to the several International Managers named in Schedule I hereto (the
"International Managers"). The Company also proposes to sell to the
International Managers, upon the terms and conditions set forth in Section 2
hereof, up to an additional 120,000 shares (the "International Option
Securities") of Common Stock. The Initial International Securities together with
the International Option Securities shall be referred to as the "International
Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 7,200,000 shares of Common Stock
(the "Initial U.S. Securities" and together with the Initial International
Securities, the "Initial Securities") through arrangements with certain
underwriters in the United States (the "U.S. Underwriters") for which Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Morgan Stanley
& Co. Incorporated and PaineWebber Incorporated are acting as representatives.
The Company also proposes to sell to the U.S. Underwriters, upon the terms and
conditions set forth in the U.S. Purchase Agreement, up to an additional
1,080,000 shares (the "U.S. Option Securities and, together with the
International Option Securities, the "Option Securities") of Common Stock. The
Initial U.S. Securities together with the U.S. Option Securities shall be
referred to as the "U.S. Securities". The International Securities together with
the U.S. Securities shall be referred to as the "Securities". It is understood
that the Company is not obligated to sell and the International
<PAGE>
Managers are not obligated to purchase, any Initial International Securities
unless all of the Initial U.S. Securities are contemporaneously purchased by
the U.S. Underwriters.
The International Managers and the U.S. Underwriters will concurrently
enter into an Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of certain
transactions among the International Managers and the U.S. Underwriters under
the direction of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several International Managers on whose behalf
you are acting, in connection with the several purchases of the International
Securities by the International Managers.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Securities. The term "Registration Statement" as used in this Agreement means
the registration statement (including all financial schedules and exhibits), as
supplemented or amended prior to the execution of this Agreement. The term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement, as supplemented by the prospectus supplement
relating to the International Securities (the "International Prospectus
Supplement") and the prospectus supplement relating to the U.S. Securities (the
"U.S. Prospectus Supplement") in the forms filed with the Commission pursuant to
Rule 424(b). The term "Preliminary Prospectus" as used in this Agreement means
any preliminary prospectus included in the Registration Statement or filed with
the Commission under Rule 424(a) or any preliminary prospectus supplement to the
prospectus included in the Registration Statement and filed with the Commission
under Rule 424(b) and as such prospectus or prospectus supplement shall have
been amended from time to time prior to the date of the Prospectus. Any
reference in this Agreement to the registration statement, the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of the registration statement, the
Registration Statement, such Preliminary Prospectus or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which, upon filing, are incorporated by reference therein, as
required by paragraph (b) of Item 12 of Form S-3. As used herein, the term
"Incorporated Documents" means the documents which at the time are incorporated
by reference in the registration statement, the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto.
2
<PAGE>
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
International Manager and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each International Manager agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $35.1075 per
Share (the "purchase price per share"), the number of Initial International
Securities set forth opposite the name of such International Manager in Schedule
I hereto (or such number of Initial International Securities increased as set
forth in Section 10 hereof).
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the International Managers, and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, the International
Managers shall have the right to purchase from the Company, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 30th day after the date of the Prospectus (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading), up to an aggregate of
120,000 International Option Securities. The International Option Securities may
be purchased only for the purpose of covering over-allotments made in connection
with the offering of the Initial International Securities. Upon any exercise of
the over-allotment option, each International Manager, severally and not
jointly, agrees to purchase from the Company the number of International Option
Securities (subject to such adjustments as you may determine in order to avoid
fractional shares) which bears the same proportion to the number of
International Option Securities to be purchased by the International Managers as
the number of Initial International Securities set forth opposite the name of
such International Manager in Schedule I hereto (or such number of Initial
International Securities increased as set forth in Section 10 hereof) bears to
the aggregate number of Initial International Securities.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the International Managers and the U.S. Underwriters propose to make a public
offering of their respective portions of the applicable International Securities
and U.S. Securities and initially to offer the International Securities and U.S.
Securities upon the terms set forth in the Prospectus.
4. DELIVERY OF THE INTERNATIONAL SECURITIES AND PAYMENT THEREFOR.
Delivery to the International Managers of and payment for the Initial
International Securities shall be made at the office of Milbank, Tweed, Hadley &
McCloy, One Chase Manhattan Plaza, New York, NY 10005, at 10:00 A.M., New York
City time, on Thursday, December 16, 1998 (the "Closing Date"). The place of
closing for the Initial International Securities and the Closing Date may be
varied by agreement between you and the Company.
Delivery to the International Managers of and payment for any
International Option Securities to be purchased by the International Managers
shall be made at the aforementioned office of Milbank, Tweed, Hadley & McCloy at
such time on such date (the "Option Closing Date"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor earlier
than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the International Managers to the Company of the International
Managers' determination to purchase a number, specified in such
3
<PAGE>
notice, of International Option Securities. The place of closing for any
International Option Securities and the Option Closing Date for such
International Option Securities may be varied by agreement between you and the
Company.
Certificates for the Initial International Securities and for any
International Option Securities to be purchased hereunder shall be registered in
such names and in such denominations as you shall request prior to 9:30 A.M.,
New York City time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in New York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next preceding the Closing
Date or the Option Closing Date, as the case may be. The certificates evidencing
the Initial International Securities and any International Option Securities to
be purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase price
therefor by wire transfer of immediately available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
International Managers as follows:
(a) The Company will advise you promptly after it receives
notice thereof and, if requested by you, will confirm such advice in writing:
(i) of any request by the Commission for amendment of or a supplement to the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (e) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(b) The Company will furnish to you, without charge (i) five
(5) signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv) five (5)
copies of the exhibits to the Incorporated Documents.
(c) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus or,
prior to the end of the period of time referred to in the first sentence in
subsection (e) below, file any document which, upon filing becomes an
Incorporated Document, of which you shall not previously have been advised or to
4
<PAGE>
which, after you shall have received a copy of the document proposed to be
filed, you shall reasonably object.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each Preliminary Prospectus. The Company consents to the
use, in accordance with the provisions of the Act and with the securities or
Blue Sky laws, as applicable, of the jurisdictions (domestic or foreign) in
which the International Securities are offered by the several International
Managers and by dealers, prior to the date of the Prospectus, of each
Preliminary Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the International Managers a prospectus is required by the Act to
be delivered in connection with sales by any International Manager or dealer,
the Company will expeditiously deliver to each International Manager and each
dealer, without charge, as many copies of the Prospectus (and of any amendment
or supplement thereto) as you may request. The Company consents to the use of
the Prospectus (and of any amendment or supplement thereto) in accordance with
the provisions of the Act and with the securities or Blue Sky laws, as
applicable, of the jurisdictions (domestic or foreign) in which the Securities
are offered by the several International Managers and by all dealers to whom
Securities may be sold, both in connection with the offering and sale of the
Securities and for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection with sales by any International Manager
or dealer. If during such period of time any event shall occur that in the
judgment of the Company or in the opinion of counsel for the International
Managers is required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus (or to
file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Company will forthwith prepare and, subject to the provisions of paragraph (c)
above, file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will expeditiously furnish to the International
Managers and dealers a reasonable number of copies thereof. In the event that
the Company and you, as Representatives of the several International Managers,
agree that the Prospectus should be amended or supplemented, the Company, if
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(f) The Company will cooperate with you and with counsel for
the International Managers in connection with the registration or qualification
of the Securities for offering and sale by the several International Managers
and by dealers under the securities or Blue Sky laws, as applicable, of such
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(g) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period
5
<PAGE>
commencing after the effective date of the Registration Statement and ending
not later than 15 months thereafter, as soon as practicable after the end of
such period, which consolidated earnings statement shall satisfy the provisions
of Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158).
(h) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 hereof) or if this Agreement shall be
terminated by the International Managers because of any failure or refusal on
the part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement, the Company agrees to reimburse the
Representatives for all out-of-pocket expenses (including fees and expenses of
counsel for the International Managers) incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of
the Securities substantially in accordance with the description set forth in the
Prospectus.
(k) The Company will timely file the Prospectus pursuant to
Rule 424(b) under the Act and will advise you of the time and manner of such
filing.
(l) Except as provided in this Agreement and the U.S. Purchase
Agreement, the Company will not sell, contract to sell or otherwise dispose of
any Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or sell or grant any options or warrants to
purchase, or purchase any option or contract to sell Common Stock or any
securities c convertible into or exercisable or exchangeable for Common Stock,
or enter into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, for a period of 90 days after the date of the
Prospectus, without the prior written consent of the Global Coordinator, other
than shares and options issued pursuant to Company employee and director plans
and Company dividend and interest reinvestment and stock purchase plans.
(m) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Securities.
(n) The Company will cause the shares of Common Stock which it
agrees to sell under this Agreement to be listed, subject only to official
notice of issuance, on the New York, Pacific and Toronto Stock Exchanges on or
before the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each International Manager that:
6
<PAGE>
(a) Each Preliminary Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act except that
this representation and warranty does not apply to statements in or omissions
from such Preliminary Prospectus (or any amendment or supplement thereto) made
in reliance upon and in conformity with information relating to any
International Manager or U.S. Underwriter furnished to the Company in writing by
or on behalf of any International Manager or U.S. Underwriter through you
expressly for use therein. The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus.
(b) The Company and the transactions contemplated by this
Agreement and the U.S. Purchase Agreement meet the requirements for using Form
S-3 under the Act. The registration statement in the form in which it became
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective and the Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the
Act and will not at any such times contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the registration statement or the Prospectus made in reliance upon and in
conformity with information relating to any International Manager or U.S.
Underwriter furnished to the Company in writing by or on behalf of any
International Manager or U.S. Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, and
any further Incorporated Documents so filed will, when they are filed, conform
in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) Neither the Company nor any of its subsidiaries (each a
"Subsidiary and, collectively, the "Subsidiaries") has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and its
Subsidiaries taken as a whole, or sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Preliminary Prospectus and the Prospectus; and, since the
respective dates as of which information is given in the Preliminary Prospectus
and the Prospectus, there has not been any material change in the capital stock,
or material increase in the short-term debt or long-term debt, of the Company or
any of its Subsidiaries or any material adverse change, or any
7
<PAGE>
development involving, or which may reasonably be expected to involve, a
prospective material adverse change in or affecting the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and its Subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Preliminary Prospectuses and the Prospectus;
(e) This Agreement and the U.S. Purchase Agreement have been
duly authorized by the Company and conform in all material respects to the
descriptions thereof in the Preliminary Prospectus and the Prospectus;
(f) The Securities, upon issuance and delivery and payment
therefor in the manner described herein, will be duly authorized, validly
issued, fully paid and nonassessable. The Securities conform to the descriptions
thereof in the Preliminary Prospectus and the Prospectus. There are no
preemptive or other rights to subscribe for or to purchase, or any restriction
upon the transfer of, any shares of the Company's capital stock, including the
Securities when issued, pursuant to the Company's certificate of incorporation,
bylaws or other governing documents or any agreement or other instrument to
which the Company or any of its Subsidiaries is a party or by which it may be
bound. Neither the filing of the Registration Statement nor the offering or sale
of the Securities as contemplated by this Agreement and the U.S. Purchase
Agreement gives rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of the Company's
capital stock;
(g) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business conducted
by it or the location of the properties owned or leased by it makes such
qualification necessary. All of the outstanding shares of capital stock of the
Company and all of the outstanding shares of capital stock of each Subsidiary,
have been duly authorized and validly issued, are fully paid and nonassessable.
All of the outstanding shares of capital stock of each Subsidiary that are owned
directly or indirectly by the Company are owned 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 of this Agreement or the
U.S. Purchase Agreement or consummation of the transactions contemplated by such
agreements result in a violation of, or constitute a default under, the
certificate of incorporation, bylaws or other governing documents of the Company
or any of its Subsidiaries, or any agreement, indenture or other instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
is bound, or to which any of their properties is subject, nor will the
performance by the Company of its obligations under this Agreement and the U.S.
Purchase Agreement violate any law, rule, administrative regulation or decree of
any court or any governmental agency or body having jurisdiction over the
Company, its Subsidiaries or any of their properties, or result in the creation
or imposition of any lien, charge, claim or encumbrance upon any property or
asset of the Company or any of its Subsidiaries which would be material to the
Company and its Subsidiaries taken as a whole. Except for permits and similar
authorizations required under the Act, the Federal Power Act, the laws of the
States of Colorado and West Virginia and the securities or Blue Sky laws of
certain jurisdictions, and except for such permits and
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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 the U.S. Purchase 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 Preliminary Prospectus and the Prospectus or
such as do not materially affect the values of such property and do not
interfere with the use made or proposed to be made of such property by the
Company or such Subsidiaries; and any real property and buildings held under
lease by the Company and its Subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such Subsidiaries;
(j) Except as described in the Preliminary Prospectus and the
Prospectus, there is no litigation or governmental proceeding to which the
Company or any of its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
Subsidiaries which might result in any material adverse change in the condition
(financial or other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(k) Neither the Company nor any Subsidiary is in violation of
any law, ordinance, governmental rule or regulation or court decree to which it
is subject which violation would have a material adverse effect on the condition
(financial or other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(l) The accountants who have certified or shall certify the
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus (or any amendment or supplement thereto) are
independent public accountants as required by the Act.
(m) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and the Subsidiaries on the basis stated in the
Registration Statement and the Prospectus at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
included or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Company and the Subsidiaries.
(n) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Securities will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration
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Statement, the Preliminary Prospectus, the Prospectus or other materials, if
any, permitted by the Act.
(o) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you and each other International Manager and
each person, if any, who controls any International Manager within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to such International Manager furnished
in writing to the Company by or on behalf of any International Manager through
you expressly for use in connection therewith. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any International Manager or any person controlling any International Manager in
respect of which indemnity may be sought against the Company, such International
Manager or such controlling person shall promptly notify the Company and the
Company shall assume the defense thereof, including the employment of counsel
and payment of all fees and expenses. Such International Manager or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such International
Manager or such controlling person unless (i) the Company has agreed in writing
to pay such fees and expenses, (ii) the Company has failed to assume the defense
and employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such International
Manager or such controlling person and the Company and such International
Manager or such controlling person shall have been advised by its counsel that
representation of such indemnified party and the Company by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such International Manager or such controlling person).
It is understood, however, that the Company shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
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counsel) at any time for all such International Managers and controlling persons
not having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Merrill Lynch International and
that all such fees and expenses shall be reimbursed as they are incurred. The
Company shall not be liable for any settlement of any such action, suit or
proceeding effected without its written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company agrees to indemnify and hold harmless
any International Manager, to the extent provided in the preceding paragraph,
and any such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Each International Manager agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
International Manager, but only with respect to information relating to such
International Manager furnished in writing by or on behalf of such International
Manager through you expressly for use in the Registration Statement, the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the Company,
any of its directors, any such officer, or any such controlling person based on
the Registration Statement, the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any International Manager pursuant to this paragraph (c), such
International Manager shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such International Manager shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but the
fees and expenses of such counsel shall be at such International Manager's
expense), and the Company, its directors, any such officer, and any such
controlling person shall have the rights and duties given to the International
Managers by paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability which the International Managers may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the International Managers
on the other hand from the offering of the Securities, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the International Managers on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the International Managers,
in each case as set forth in the table on the cover page of the International
Prospectus Supplement. The relative fault of the Company on the one hand and the
International Managers on the other hand shall be determined by
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reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
by the International Managers on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and the International Managers agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 7, no
International Manager shall be required to contribute any amount in excess of
the amount by which the total price of the Securities underwritten by it and
distributed to the public exceeds the amount of any damages which such
International Manager 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 International Managers' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Initial International Securities set forth opposite their
names in Schedule I hereto (or such numbers of Initial International Securities
increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and no statement of fault or
culpability is attributed to the indemnified party in connection with such
settlement.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any International Manager or any person
controlling any International Manager, the Company, its directors or officers,
or any person controlling the Company, (ii) acceptance of any Securities and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to any International Manager or any person controlling any
International Manager, or to the Company, its directors or officers, or any
person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 7.
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8. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The several
obligations of the International Managers to purchase the Initial International
Securities hereunder are subject to the following conditions:
(a) All filings, if any, required by Rules 424 under the Act
shall have been timely made; no stop order suspending the effectiveness of the
registration statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company, any
International Manager or U.S. Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been complied
with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth, or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
opinion, as Representatives of the several International Managers, would
materially adversely affect the market for the Securities, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the International Managers and
their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Act or any other
law to be stated therein or necessary in order to make the statements therein
not misleading, if amending or supplementing the Prospectus to reflect such
event or development would, in your opinion, as Representatives of the several
International Managers, materially adversely affect the market for the
Securities.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Hadley & McCloy, counsel for the International Managers, dated
the Closing Date, with respect to the validity of the Securities, the
Registration Statement, the Prospectus, and other related matters as you
reasonably may request, such counsel being able to rely on the opinion, dated
the Closing Date or the Option Closing Date, as the case may be, of Blackwell
Sanders Peper Martin LLP or on the opinions, dated the Closing Date or the
Option Closing Date, as the case may be, of local counsel, and the Company shall
have furnished to such counsel such papers and information as they request to
enable them to pass upon such matters.
(d) You shall have received on the Closing Date an opinion of
Blackwell Sanders Peper Martin LLP counsel for the Company, dated the Closing
Date and addressed to you, as Representatives of the several International
Managers, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, has duly obtained or has
succeeded to and holds all material franchises and other
governmental and corporate authority necessary to carry on the
public utility business in which it is engaged and to own,
lease and operate the properties in use in such business and
the maintenance of such franchises and other authority is
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not subject to any burdensome restriction or condition of an
unusual character (except as described in the Registration
Statement);
(ii) Each Subsidiary of the Company (other than the
Company's foreign subsidiaries) has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation;
(iii) The Company has full corporate power and
corporate authority to enter into and perform its obligations
under this Agreement and the U.S. Purchase Agreement with
respect to the Securities and to issue the Securities;
(iv) This Agreement and the U.S. Purchase Agreement
have been duly authorized, executed and delivered by the
Company;
(v) The shares of the Company's Common Stock
outstanding prior to the issuance of the Securities have been
duly authorized and are validly issued, fully paid and
nonassessable. There are no preemptive or other rights to
subscribe for or to purchase, or any restriction upon the
transfer of, any shares of the Company's Common Stock,
including the Securities when issued, pursuant to the
Company's certificate of incorporation, bylaws, or any
agreement or other instrument known to such counsel to which
the Company or any of its Subsidiaries is a party or by which
any of them may be bound, and neither the filing of the
Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement and the U.S.
Purchase Agreement, respectively gives rise to any rights,
other than those which have been waived or satisfied, for or
relating to the registration of any shares of the Company's
Common Stock under the Company's certificate of incorporation,
bylaws or any agreement or other instrument binding upon the
Company known to such counsel;
(vi) The Securities have been duly authorized, and,
when delivered in accordance with the terms of this Agreement
and the U.S. Purchase Agreement will be validly issued, fully
paid and nonassessable;
(vii) The orders of the Federal Energy Regulatory
Commission, the Public Utilities Commission of Colorado and
the Public Service Commission of West Virginia authorizing the
issuance and sale of the Securities are in effect on the
Closing Date and no other approval, authorization, consent or
order of any federal, state or local commission or
governmental authority (other than under state securities or
Blue Sky laws, as to which such counsel need express no
opinion) is required for the issuance and sale of the
Securities or the performance by the Company of its other
obligations under this Agreement and the U.S. Purchase
Agreement, except such as are specified, obtained and in
effect, and the issuance and sale of the Securities hereunder
are in conformity with each such approval, authorization,
consent and order;
(viii) After due inquiry, such counsel does not know
of any legal or governmental proceeding pending or threatened
to which the Company or its Subsidiaries is a party or to
which any of the properties of the Company is subject
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that is required to be described in the Registration Statement
or the Prospectus as amended or supplemented and is not so
described or of any contract or other document that is
required to be described in the Registration Statement or the
Prospectus as amended or supplemented or to be filed as an
exhibit to the Registration Statement that is not described
or filed as required;
(ix) The statements made in the Registration
Statement and the Prospectus as amended or supplemented under
the captions "Description of Common Stock", "Certain United
States Tax Considerations for Non-United States Holders" and
"Underwriting", in Item 15 of the Registration Statement, in
the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 under the caption "Legal Proceedings",
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings;
(x) The execution, delivery and performance by the
Company of this Agreement and the U.S. Purchase Agreement will
not violate any provision of applicable law or the certificate
of incorporation or the bylaws of the Company or breach, or
result in a default under, any existing obligation of the
Company under any agreement or other instrument binding upon
the Company known to such counsel;
(xi) The authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Preliminary Prospectus and the Prospectus.
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and the other
financial information and data therein, as to which such
counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder,
and they have no reason to believe that any of such documents,
(other than the financial statements and related schedules and
the other financial information and data therein, as to which
such counsel need express no opinion), when they became
effective or were so filed, as the case may be, contained in
the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading; and
(xiii) The Registration Statement has become
effective under the Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the best of such counsel's knowledge, no proceedings
for that purpose
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have been instituted or are pending before or contemplated by
the Commission and all filings required by Rule 424 under the
Act have been made; the Registration Statement and the
Prospectus and any amendments and supplements thereto, (other
than the financial statements and related schedules and the
other financial information and data therein, as to which
such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and
the rules and regulations thereunder; they have no reason to
believe that, as of its effective date, the Registration
Statement or amendment thereto (other than the financial
statements and related schedules and the other financial
information and data therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the
Preliminary Prospectus and the Prospectus or any amendment
or supplement thereto (other than the financial statements
and related schedules and the other financial information
and data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which
they were made, not misleading or that, as of the Closing
Date for the 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 Closing Date for the Securities (other than the
financial statements and related schedules and the other
financial information and data therein, as to which such
counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration
Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented
or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required.
In giving the foregoing opinions, such counsel may rely on (1)
the opinions of local counsel, with respect to the opinion set forth in
paragraph (i) above, (2) the opinions heretofore rendered by Gary J.
Brouillette, Esq. and Messrs. Gage & Tucker with respect to the opinion set
forth in paragraph (v) above and (3) the opinions of local counsel and the
opinion of Hogan & Hartson L.L.P. with respect to the opinion set forth in
paragraph (vii) above. Such counsel shall state that you and they are justified
in relying on such opinions.
(e) On or prior to the Closing Date (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;
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(f) You shall have received letters addressed to you, as
Representatives of the several International Managers, and dated the date hereof
and the Closing Date from Arthur Andersen LLP, independent certified public
accountants, who have certified the financial statements of the Company and/or
the Subsidiaries included or incorporated by reference in the Registration
Statement substantially in the forms heretofore approved by you.
(g)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company other than shares
of Common Stock and options issued pursuant to Company employee and director
plans and Company dividend and interest reinvestment and stock purchase plans
nor any material increase in the short-term or long-term debt of the Company
(other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectus (or any amendment
or supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, other than those reflected in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the Closing Date and
signed by the chief executive officer or the chief financial officer of the
Company (or such other officer as is acceptable to you), to the effect set forth
in this Section 8(g) and in Section 8(h) hereof.
(h) The Federal Energy Regulatory Commission, the Public
Utilities Commission of Colorado and the Public Service Commission of West
Virginia 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 Securities and the performance
by the Company of its other obligations under this Agreement and the U.S.
Purchase Agreement, each Regulatory Action shall be in effect, no proceedings to
suspend the effectiveness of any Regulatory Actions shall be pending or
threatened, no Regulatory Action shall contain any provision or condition that
is unacceptable to the International Managers, and the issuance and sale of the
Securities to the International Managers and the U.S. Underwriters, respectively
shall be in conformity with each Regulatory Action;
(i) Contemporaneously with the purchase by the International
Managers of the Initial International Securities under this Agreement, the U.S.
Underwriters shall have purchased the U.S. Securities under the U.S. Purchase
Agreement.
(j) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements contained
in this Agreement and the U.S.
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Purchase Agreement and which are required to be performed or complied with by
it hereunder and thereunder at or prior to the Closing Date.
(k) The Securities shall have been approved for listing,
subject only to official notice of issuance, on the New York, Pacific and
Toronto Stock Exchanges.
(l) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company and delivered to you, as Representatives of the International Managers,
or to counsel for the International Managers, shall be deemed a representation
and warranty by the Company to each International Manager as to the statements
made therein.
The several obligations of the International Managers to
purchase International Option Securities hereunder are subject to the
satisfaction on and as of any Option Closing Date of the conditions set forth in
this Section 8, except that, if any Option Closing Date is other than the
Closing Date, the certificates, opinions and letters referred to in paragraphs
(c) through (f) shall be dated the Option Closing Date in question and the
opinions called for by paragraphs (c), (d) and (e) shall be revised to reflect
the sale of International Option Securities.
9. EXPENSES. The Company covenants and agrees with the several
International Managers 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 International Managers and dealers; (ii) the cost of printing or
producing any Agreement among International Managers, this Agreement, the U.S.
Purchase Agreement, 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(g) hereof, including the reasonable fees and disbursements of counsel
for the International Managers in connection with such qualification and in
connection with the Blue Sky and/or legal investment surveys; (iv) any filing
fees incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (v) the cost of
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including all taxes on the transfer and sale of the Securities
and the transfer of the Securities between and among the International Managers
and the U.S. Underwriters; (vi) the fees and expenses of any transfer agent and
registrant for the Securities; and (vii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 7 and Section 5(j) hereof, the
International Managers will pay all of their own costs and expenses, including
the fees of their counsel, transfer
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<PAGE>
taxes on resale of any of the International Securities, including the U.S.
Securities, by them, and any advertising expenses connected with any offers
they may make.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If any one or more of the International Managers shall fail or
refuse to purchase International Securities which it or they are obligated to
purchase hereunder on the Closing Date, and the aggregate number of
International Securities which such defaulting International Manager or
International Managers are obligated but fail or refuse to purchase is not more
than one-tenth of the aggregate number of International Securities which the
International Managers are obligated to purchase on the Closing Date, each
non-defaulting International Manager shall be obligated, severally, in the
proportion which the number of Initial International Securities set forth
opposite its name in Schedule I hereto bears to the aggregate number of Initial
International Securities set forth opposite the names of all non-defaulting
International Managers or in such other proportion as you may specify, to
purchase the International Securities which such defaulting International
Manager or International Managers are obligated, but fail or refuse, to
purchase. If any one or more of the International Managers shall fail or refuse
to purchase International Securities which it or they are obligated to purchase
on the Closing Date and the aggregate number of International Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of International Securities which the International Managers are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such International Securities by one or more
non-defaulting International Managers or other party or parties approved by you
and the Company are not made within 72 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting International
Manager or the Company. In any such case which does not result in termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting International Manager from liability
in respect of any such default of any such International Manager under this
Agreement. The term "International Manager" as used in this Agreement includes,
for all purposes of this Agreement, any party not listed in Schedule I hereto
who, with your approval and the approval of the Company, purchases International
Securities which a defaulting International Manager is obligated, but fails or
refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion after consultation with each other,
without liability on the part of any International Manager to the Company by
notice to the Company, if prior to the Closing Date or any Option Closing Date
(if different from the Closing Date and then only as to the International Option
Securities), as the case may be, (i) there has been, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole, (ii) trading in securities
generally on the New York Stock Exchange,
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the American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (iii) a general moratorium on commercial
banking activities in New York or Missouri shall have been declared by either
federal or state authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States or elsewhere is such as to make it,
in your judgment, impracticable or inadvisable to commence or continue the
offering of the International Securities or the U.S. Securities at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the International Securities or the U.S. Securities
by the International Managers and the U.S. Underwriters, respectively. Notice of
such termination may be given to the Company by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE INTERNATIONAL MANAGERS. The
statements set forth in the International Prospectus Supplement under the
heading "Underwriting" in (i) the first paragraph, (ii) the first sentence of
the second paragraph, (iii) the fourth paragraph regarding the terms of the
offering, (iv) the tenth paragraph regarding the Intersyndicate Agreement, (v)
the last sentence of the twelth paragraph,(vi) the thirteenth, fourteenth and
fifteenth paragraphs regarding stabilization and related activities and the
imposition of penalty bids, (vii) the sixteenth paragraph as it relates to the
underwriters, (viii) the seventeenth paragraph and (ix) the eighteenth
paragraph, as it relates to the International Managers, constitutes the only
information furnished by or on behalf of the International Managers through you
as such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (I) if to the Company, at the office of the
Company at 20 W. Ninth Street, Kansas City, Missouri 64105, Attention: President
or (ii) if to you, as Representatives of the several International Managers,
care of Merrill Lynch, Pierce, Fenner & Smith Incorporated, at World Financial
Center, North Tower, New York, New York 10281, Attention: James McBurney .
This Agreement has been and is made solely for the benefit of the
several International Managers, the Company, its directors and officers, and the
other controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any International Manager of any of the
Securities in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several International Managers.
Very truly yours,
UTILICORP UNITED INC.
By: /s/ Dale J. Wolf
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
International Managers named in Schedule I
hereto.
MERRILL LYNCH INTERNATIONAL
GOLDMAN SACHS INTERNATIONAL
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
As Representatives of the Several International Managers
By: MERRILL LYNCH INTERNATIONAL
By: /s/ James R. G. McBurney
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SCHEDULE I
UTILICORP UNITED INC.
<TABLE>
<CAPTION>
Number of Initial
International Manager International Securities
--------------------- ------------------------
<S> <C>
Merrill Lynch International 200,000
Goldman Sachs International 200,000
Morgan Stanley & Co. International Limited 200,000
PaineWebber International (U.K.) Ltd. 200,000
-------
800,000
</TABLE>
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