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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UTILICORP UNITED INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
DELAWARE 44-0541877
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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20 W. NINTH STREET, KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Address, including zip code, of Registrant's principal executive offices)
RICHARD C. GREEN, JR.
UTILICORP UNITED INC.
20 W. NINTH STREET, KANSAS CITY, MISSOURI 64105
(816) 421-6600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
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DENNIS P. WILBERT, ESQ. ROBERT W. MULLEN, JR., ESQ.
BLACKWELL SANDERS PEPER MARTIN LLP MILBANK, TWEED, HADLEY & MCCLOY
TWO PERSHING SQUARE 1 CHASE MANHATTAN PLAZA
2300 MAIN STREET, SUITE 1000 NEW YORK, NEW YORK 10005
KANSAS CITY, MISSOURI 64108
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (2) FEE
<S> <C> <C> <C> <C>
Debt Securities, Common Stock (3),
par value $1 per share.............. $700,000,000 $700,000,000 $194,600
</TABLE>
(1) Omitted pursuant to General Instruction II.D of Form S-3.
(2) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(3) Includes a Preference Stock Purchase Right attached to each share of Common
Stock, that, prior to the occurence of certain events, will not be evidenced
separately from the Common Stock.
The prospectus included in this Registration Statement is a combined
prospectus as permitted by Rule 429 under the Securities Act of 1933. If the
Securities are issued as Senior Notes, the prospectus will also cover
$100,000,000 of Senior Notes previously registered and unissued (Registration
Statement No. 333-34609).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1998
PROSPECTUS
[LOGO]
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$800,000,000
DEBT SECURITIES
COMMON STOCK
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We will provide specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and any supplement carefully before you invest.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This Prospectus is dated , 1998
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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TABLE OF CONTENTS
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PAGE
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ABOUT THIS PROSPECTUS.......................... 2
WHERE YOU CAN FIND MORE INFORMATION............ 2
THE COMPANY.................................... 4
USE OF PROCEEDS................................ 4
RATIO OF EARNINGS TO FIXED CHARGES............. 4
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PAGE
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DESCRIPTION OF DEBT
SECURITIES................................... 4
DESCRIPTION OF COMMON
STOCK........................................ 9
PLAN OF DISTRIBUTION........................... 13
LEGAL OPINIONS................................. 13
EXPERTS........................................ 13
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") utilizing a "shelf" registration
process. Under this shelf process, we may, from time to time, sell any
combination of the securities described in this prospectus (the "Securities") in
one or more offerings up to a total dollar amount of $800,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any materials that we file at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. We file information electronically with
the SEC. The SEC maintains an Internet site that contains reports, proxy and
information statements and other information regarding issuers that file
electronically with the SEC. The address of the SEC's Internet site is
http://www.sec.gov. Our Internet address is http://www.utilicorp.com.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
a. Annual Report on Form 10-K for the fiscal year ended December 31, 1997.
b. Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
June 30 and September 30, 1998.
c. Current Report on Form 8-K dated March 16, 1998.
d. The description of Common Stock contained in our Registration Statement
on Form 8-B dated May 5, 1987 and the description of the Preference
Stock Purchase Rights set forth in Registration Statement No. 333-14869.
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You may request a copy of these filings, at no cost, by telephoning or
writing to us at the following address:
Investor Relations
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri, 64105
816-421-6600
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information contained in this prospectus and in any
prospectus supplement. We have not authorized any other person to provide you
with different information. If anyone provides you with different or
inconsistent information, you should not rely on it.
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THE COMPANY
UtiliCorp United Inc. is a multinational energy and energy services company
headquartered in Kansas City, Missouri. Our executive offices are located at 20
West Ninth Street, Kansas City, Missouri 64105, and our telephone number is
(816) 421-6600.
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, the net proceeds from
the sale of the offered securities will be used for general corporate purposes
including repayment of debt, construction and acquisitions. At September 30,
1998, we had outstanding short-term borrowings (excluding current maturities of
long-term debt) of approximately $383.8 million with a weighted average interest
rate of 5.89%.
RATIO OF EARNINGS TO
FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
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TWELVE MONTHS
ENDED YEARS ENDED
SEPTEMBER 30, DECEMBER 31,
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1998 1997 1996 1995 1994 1993
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2.25 2.46 2.15 1.93 2.31 2.05
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The ratio of earnings to fixed charges represents the number of times fixed
charges are covered by earnings. For the purpose of these ratios, "earnings" is
determined by adding pretax income to "fixed charges". For this purpose "fixed
charges" consists of (1) interest on all indebtedness and amortization of debt
discount and expense, (2) interest capitalized and (3) an interest factor
attributable to rentals.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Company's debt securities (the
"Debt Securities") sets forth certain general terms and provisions. The
particular terms of the Debt Securities offered by any prospectus supplement
will be described therein. The Debt Securities will be issued under an
Indenture, dated as of November 1, 1990, as supplemented (the "Indenture"),
between the Company and The First National Bank of Chicago, as Trustee (the
"Trustee"), a copy of which is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular sections or defined terms of the
Indenture are referred to or used herein, such sections or defined terms shall
be incorporated herein by reference as part of the statements made.
GENERAL
The Indenture does not limit the aggregate principal amount of the Debt
Securities or of any particular series of Debt Securities which may be issued
thereunder. The Indenture provides that Debt Securities may be issued from time
to time in one or more series. (Section 301). The Debt Securities will be
unsecured obligations of the Company and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company
Reference is made to the prospectus supplement relating to the particular
series of Debt Securities offered thereby for the following terms or additional
provisions of such Debt Securities: (1) the title of such Debt Securities; (2)
any limit on the aggregate principal amount of such Debt Securities; (3) the
price (expressed as a percentage of the aggregate principal amount thereof) at
which such Debt Securities will be issued; (4) the date or dates on which such
Debt Securities will mature; (5) the rate or rates (which may be fixed or
variable) per annum at which such Debt Securities will bear interest, if any, or
the method by which such rate or rates, if any, will be determined; (6) the date
from which such interest, if any, on such Debt Securities will accrue, the dates
on which such interest, if any, will be payable, the date on which payment of
such interest, if any, will commence, the record dates for any interest payment
dates and the person, if different than the registered holder as of the record
date, to whom any interest shall be payable; (7) the
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dates, if any, on which and the price or prices at which such Debt Securities
will, pursuant to any mandatory sinking fund provisions, or may, pursuant to any
optional sinking fund provisions, be redeemed by the Company, and the other
detailed terms and provisions of such sinking funds; (8) the date, if any, after
which and the price or prices at which such Debt Securities may, pursuant to any
optional redemption provisions, be redeemed at the option of the Company or of
the Holder thereof and the other detailed terms and provisions of such optional
redemptions; (9) any additional restrictive covenants included solely for the
benefit of such Debt Securities; (10) any additional Events of Default provided
solely with respect to such Debt Securities; (11) the currency or currencies in
which the principal of (and premium, if any) and interest, if any, on such Debt
Securities will be payable; (12) the index, if any, with reference to which the
amount of principal of (and premium, if any) or interest, if any, on such Debt
Securities will be determined; (13) whether a Global Security is to be issued
with respect to such Debt Securities, the name of the Depository for such Global
Security and the terms, if any, upon which interests in the Global Security may
be exchanged for such definitive Debt Securities; and (14) any additional terms
of such Debt Securities.
Unless otherwise provided in the prospectus supplement relating thereto,
principal of (and premium, if any) and interest, if any, on the Debt Securities
will be payable, and the transfer or exchange of the Debt Securities will be
registrable, at the office or agency maintained by the Company for that purpose
in New York, New York, provided that, at the option of the Company interest may
be paid by check mailed to the address of the Person entitled thereto as it
appears on the Security Register. (Sections 301, 305 and 1002).
Unless otherwise indicated in the prospectus supplement relating thereto,
the Debt Securities will be issued only in registered form without coupons and
in denominations of $1,000 and integral multiples thereof. (Section 302). No
service charge will be made for any registration of transfer or exchange of the
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 305).
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount below their principal amount. Special Federal
income tax, accounting and other considerations applicable thereto will be
described in the prospectus supplement relating thereto. "Original Issue
Discount Security" means any security which provides for the declaration of
acceleration of the maturity of an amount less than the principal amount thereof
upon the occurrence and continuance of an Event of Default. (Section 101).
EVENTS OF DEFAULT
An Event of Default is defined in the Indenture, with respect to Debt
Securities of any series, as: (a) a default in the payment of principal of (or
premium, if any, on) any Debt Security at its Maturity; (b) a default in the
payment of any interest on any Debt Security when due, continued for 30 days;
(c) a default in the payment of any sinking fund installment, when and as due;
(d) failure by the Company for 60 days after due notice in performance of any
other of the covenants or warranties in the Indenture (other than a covenant or
warranty included in the Indenture solely for the benefit of a series of Debt
Securities other than that series); (e) a default under any indebtedness for
money borrowed by the Company resulting in such indebtedness in an aggregate
principal amount exceeding $5,000,000 becoming due prior to maturity, without
such acceleration having been rescinded within 10 days after due notice of such
default as provided in the Indenture; (f) certain events of bankruptcy,
insolvency or reorganization of the Company; and (g) any other Event of Default
provided with respect to Debt Securities of that series. (Section 501).
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may,
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by notice as provided in the Indenture, declare the principal amount (or, if the
Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all Debt Securities of that series to be due and payable immediately, but
upon certain conditions such declaration may be annulled and past defaults
(except, unless theretofore cured, a default in payment of principal of (or
premium, if any) or interest, if any, on the Debt Securities of that series and
certain other specified defaults) may be waived by the Holders of a majority in
principal amount of the Outstanding Debt Securities of that series on behalf of
the Holders of all Debt Securities of that series. (Sections 502 and 513).
Reference is made to the prospectus supplement relating to each series of
Outstanding Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to Debt Securities of any series at the
time Outstanding, give to the Holders of the Outstanding Debt Securities of that
series notice of such default known to it if uncured or not waived, provided,
that, except in the case of default in the payment of principal of (or premium,
if any) or interest, if any, on any Debt Security of that series, or in the
payment of any sinking fund installment which is provided, the Trustee will be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of the
Outstanding Debt Securities of such series; and, provided further, that such
notice shall not be given until 30 days after the occurrence of a default with
respect to Outstanding Debt Securities of any series in the performance of a
covenant in the Indenture other than for the payment of the principal of (or
premium, if any) or interest, if any, on any Debt Security of such series or the
deposit of any sinking fund installment with respect to the Debt Securities of
such series. The term default with respect to any series of Outstanding Debt
Securities for the purpose only of this provision means the happening of any of
the Events of Default specified in the Indenture and relating to such series of
Outstanding Debt Securities, excluding any grace periods and irrespective of any
notice requirements. (Section 602).
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care, to
be indemnified by the Holders of any series of Outstanding Debt Securities
before proceeding to exercise any right or power under the Indenture at the
request of the Holders of such series of Debt Securities. (Section 603). The
Indenture provides that the Holders of a majority in principal amount of
Outstanding Debt Securities of any series may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or other power conferred on the Trustee, provided that the
Trustee may decline to act if such direction is contrary to law or the
Indenture. (Section 512).
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate of no default, or specifying any default that exists.
(Section 1007).
DEFEASANCE
The Indenture provides that the Company, at its option, (a) will be
discharged from any and all obligations with respect to the Debt Securities
(except for certain obligations which include registering the transfer or
exchange of the Debt Securities, replacing stolen, lost or mutilated Debt
Securities, maintaining paying agencies and holding monies for payment in trust)
or (b) need not comply with certain restrictive covenants of the Indenture, upon
the deposit with the Trustee (and in the case of a discharge, 91 days after such
deposit), in trust, of money, or U.S. Government Obligations, or a combination
thereof, which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, in an amount sufficient to pay
all the principal
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of and interest on the Debt Securities on the date such payments are due in
accordance with the terms of the Debt Securities to their stated maturities or
to and including a redemption date which has been irrevocably designated by the
Company for redemption of the Debt Securities. To exercise any such option, the
Company is required to meet certain conditions, including delivering to the
Trustee an opinion of counsel to the effect that the deposit and related
defeasance would not cause the Holders of the Debt Securities to recognize
income, gain or loss for federal income tax purposes. (Sections 403 and 1008).
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than 66 2/3% in principal amount of
each series of Outstanding Debt Securities affected thereby (voting as a class),
to execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of the Indenture or modifying the rights of
the Holders of Outstanding Debt Securities of such series, except that no such
supplemental indenture may (a) change the Stated Maturity of any Debt Security,
(b) reduce the principal amount of, or the rate of interest or any premium on,
any Debt Security, (c) change the place or currency of payment on any Debt
Security, (d) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof, (e) reduce the above-stated
percentage of Outstanding Debt Securities necessary to modify or amend the
Indenture, or (f) reduce the percentage of aggregate principal amount of
Outstanding Debt Securities necessary for waiver of compliance with certain
provisions of the Indenture or for the waiver of certain covenants and defaults.
(Section 902).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture contains a provision permitting the Company, without the
consent of the Holders of any of the Outstanding Debt Securities under the
Indenture, to consolidate with or merge into any other corporation or transfer
or lease its assets substantially as an entirety to any Person or to acquire or
lease the assets of any Person substantially as an entirety or to permit any
corporation to merge into the Company, provided that: (i) the successor is a
corporation organized under the laws of any domestic jurisdiction; (ii) the
successor corporation, if other than the Company, assumes the Company's
obligations on the Debt Securities and under the Indenture; and (iii) after
giving effect to the transaction, no Event of Default, and no event which, after
notice or lapse of time, would become an Event of Default, shall have occurred
and be continuing. (Section 801).
Certain of the covenants described above would not necessarily afford the
Holders protection in the event of a highly leveraged transaction involving the
Company, such as a leveraged buyout. However, issuance of long-term debt by the
Company requires regulatory approval.
OUTSTANDING DEBT SECURITIES
The Indenture provides that, in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver under the
Indenture, (i) the portion of the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be that
portion of the principal amount thereof that could be declared to be due and
payable upon the occurrence of an Event of Default and the continuation thereof
pursuant to the terms of such Original Issue Discount Security as of the date of
such determination, and (ii) Debt Securities owned by the Company or any of its
Affiliates shall not be deemed to be Outstanding. (Section 101).
REGARDING THE TRUSTEE
The Company has a bank line of credit with the Trustee and maintains
depository and other banking relationships with the Trustee.
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DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
general terms and provisions of the Company's Common Stock and does not purport
to be complete and is subject to and qualified in its entirety by reference to
the Certificate of Incorporation of the Company, as amended (the "Certificate of
Incorporation"), and the Company's Michigan Gas Utilities Indenture, dated as of
July 1, 1951, as amended and supplemented (the "MGU Indenture"), securing the
first mortgage bonds issued by Michigan Gas Utilities Company under the MGU
Indenture and assumed by the Company in connection with its acquisition of
Michigan Gas Utilities Company.
The total number of shares of capital stock which the Company has authority
to issue is 230,000,000 shares, consisting of 200,000,000 shares of Common
Stock, par value $1 per share (the "Common Stock"), 10,000,000 shares of
Preference Stock, without par value (the "Preferrence Stock"), and 20,000,000
shares of Class A Common Stock, par value $1 per share (the "Class A Common
Stock").
DIVIDEND RIGHTS AND LIMITATIONS
Subject to the limitations referred to below, dividends may be declared on
the Common Stock out of funds legally available therefor.
Cash dividends on and acquisition of the Company's capital stock are
restricted by provisions of the Company's MGU Indenture. Under the most
restrictive of these provisions, the Company may not declare or pay any dividend
(other than a dividend payable in shares of its capital stock), whether in cash
or in stock or otherwise acquire any shares of any class of its capital stock
if, after giving effect thereto, the sum of (i) the aggregate amount of all
dividends declared and all other distributions made (other than dividends
declared or distributions made in shares of its capital stock) on shares of its
capital stock, of any class, subsequent to December 31, 1984, plus (ii) the
excess, if any, of the amount applied to or set apart for the purchase or other
acquisition of any shares of its capital stock, of any class, subsequent to
December 31, 1984, over such amounts as shall have been received by the Company
as the net cash proceeds of sales of shares of its capital stock, of any class,
subsequent to December 31, 1984, would exceed the sum of the net income of the
Company since January 1, 1985, plus $50 million. In addition, the Company may
not declare such dividends unless it maintains a tangible net worth of at least
$250 million and the aggregate principal amount of its outstanding indebtedness
does not exceed 70% of its capitalization. None of the Company's retained
earnings was restricted as to payment of cash dividends on its capital stock as
of September 30, 1998.
VOTING RIGHTS
The holders of Common Stock are entitled to one vote for each share held of
record. The Board of Directors is divided into three classes and each year one
class is elected to serve a three-year term. Holders of Common Stock are not
entitled to the benefits of cummulative voting in the election of directors.
The consent of the holders of either a majority or two-thirds of the
outstanding shares of Preference Stock (depending on the matter) is required to
effect such matters as the creation or authorization of any stock ranking prior
thereto or on a parity therewith, the creation of authorization of any
securities convertible into shares of stock ranking prior thereto or on a parity
therewith, or any increase in the total authorized amount of Preference Stock or
of any class of stock ranking prior thereto or on a parity therewith.
CHANGE IN CONTROL AND BUSINESS TRANSACTION PROVISIONS
The Certificate of Incorporation (i) provides for the classification of
directors, with three-year staggered terms, and a requirement of an affirmative
vote of 80% of the outstanding shares of Common Stock to remove the entire Board
of Directors; (ii) requires an affirmative vote of 80% of the outstanding shares
of Common Stock (or the approval of two-thirds of the directors) to change the
provisions of the
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Bylaws relating to the classified Board of Directors; and (iii) requires the
affirmative vote of 80% of the outstanding shares of Common Stock to approve
certain Business Transactions (as defined therein) with a Related Person
(defined below), unless approved by a majority vote of the Continuing Directors
(as defined therein) or unless a certain minimum price requirement is met. Such
provisions may have significant effects on the ability of stockholders of the
Company to change the composition of an incumbent Board of Directors or to
benefit from certain transactions, which are opposed by an incumbent Board of
Directors.
The term "Related Person" is defined in the Certificate of Incorporation to
include a security holder who owns 20% or more of the outstanding shares of the
Common Stock. The above provisions dealing with Business Transactions involving
the Company and a Related Person may discriminate against a security holder who
becomes a Related Person by reason of ownership of such amount of Common Stock.
CLASS A COMMON STOCK AND PREFERENCE STOCK
The Board of Directors, without further action by the stockholders, may
issue one or more series of Class A Common Stock or Preference Stock from time
to time which may have terms more favorable than the Common Stock including
preferential dividend, liquidation, redemption and voting rights. The Company
may use the Class A Common Stock and the Preference Stock as an anti-takeover
device since the Class A Common Stock and the Preference Stock may be issued
with "super voting" rights and placed in the control of parties friendly to the
current management, thus prolonging management's control of the Company. The New
York Stock Exchange has in effect a rule which restricts the ability of the
Company to issue Class A Common Stock and Preference Stock with such super
voting rights. There are no shares of Class A Common Stock or Preference Stock
issued or outstanding on the date hereof and the Company has no present
intention of issuing such shares.
SHAREHOLDER RIGHTS PLAN
The Company has adopted, a Shareholder Rights Plan pursuant to which holders
of Common Stock outstanding on December 31, 1996 or issued thereafter have been
granted one preference share purchase right (a "Right") attributable to each
share of Common Stock. The following description of the Rights is not intended
to be complete and is qualified in its entirety by reference to the Rights
Agreement between the Company and First Chicago Trust Company of New York
incorporated by reference in this prospectus (the "Rights Agreement"). Certain
of the capitalized terms used in the following description have the meanings set
forth in the Rights Agreement.
Each Right, when it becomes exercisable, as described below, will entitle
the registered holder to purchase one one-thousandth (1/1000(th)) of a share of
Series A Participating Cumulative Preference Stock of the Company, no par value
(the "Preference Stock"), at a purchase price of $115, subject to certain
adjustments and other specified conditions. Initially, the Rights will be
evidenced by the certificates of Common Stock of the Company, registered in the
names of the holders thereof and will be transferred with and only with the
Common Stock.
The Rights become exercisable upon the occurrence of a Distribution Date,
which is defined in the Rights Agreement as the earlier of (i) the tenth
business day (or such later date as the Board of Directors of the Company may
from time to time fix by resolution) after the date on which any Person
commences a tender or exchange offer which, if consummated, would result in such
Person's acquiring beneficial ownership of more than 15% of the outstanding
Common Stock (such Person being called an "Acquiring Person"), and (ii) the
tenth business day after the first date of public announcement by the Company
that a Person has become an Acquiring Person (the "Flip-in Date") or such other
date as the Board of Directors of the Company may from time to time fix by
resolution adopted prior to the Flip-in Date. The definition of "Acquiring
Person" excludes certain persons, including certain persons which
9
<PAGE>
inadvertently acquire beneficial ownership of more than 15% of the outstanding
Common Stock provided that such Person promptly agrees to divest and does
promptly divest sufficient shares of Common Stock to reduce such Person's
percentage of beneficial ownership below 15%.
In the event that a Flip-in Date occurs, each Right (other than Rights
beneficially owned by the Acquiring Person or any Affiliate or Associate
thereof, which Rights shall become void) shall constitute the right to purchase
from the Company that number of shares of Common Stock of the Company having an
aggregate Market Price (as defined in the Rights Agreement), on the date of the
public announcement of an Acquiring Person's becoming such that gave rise to the
Flip-in Date, equal to twice the Purchase Price for an amount in cash equal to
the then current Purchase Price. In addition, the Board of Directors of the
Company may, at its option, at any time after a Flip-in Date and prior to the
time an Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding shares of Common Stock, elect to exchange all (but not less than
all) of the then outstanding Rights (other than Rights beneficially owned by the
Acquiring Person or any Affiliate or Associate thereof, which Rights have become
void) for shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the Distribution Date (the
"Exchange Ratio"). Immediately upon such action by the Board of Directors (the
"Exchange Time"), the right to exercise the Rights will terminate and each Right
(other than Rights beneficially owned by the Acquiring Person or any Affiliate
or Associate thereof, which Rights have become void) will thereafter represent
only the right to receive a number of shares of Common Stock equal to the
Exchange Ratio.
Whenever the Company shall become obligated under the preceding paragraph to
issue shares of Common Stock upon exercise of or in exchange for Rights, the
Company, at its option, may substitute therefor shares of Preference Stock, at a
ratio of one one-thousandth (1/1000th) of a share of Preference Stock for each
share of Common Stock so issuable.
In the event that the Company is acquired in a merger or other similar
business combination entered into while the Acquiring Person is in control of
the Board of Directors of the Company or 50% or more of the Company's assets or
assets representing 50% or more of the Company's operating income or cash flow
are transferred to an Acquiring Person or affiliate thereof, the Company shall
take such action as necessary to ensure that the Rights will "flip-over" and
entitle each holder of a Right to purchase capital stock of the acquiring
corporation having a market value equal to twice the purchase price of the
Preference Stock otherwise purchasable pursuant to a Right.
At any time prior to the earlier of a Flip-in Date and the tenth anniversary
of the Rights Agreement, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right. Under certain
circumstances the Rights Plan may be amended from time to time by the Board of
Directors of the Company without approval of the Company's stockholders.
After the first date of public announcement by the Company that there is an
Acquiring Person and prior to the time that an Acquiring Person becomes the
beneficial owner of more than 50% of the outstanding shares of Common Stock, the
Board of Directors of the Company may elect to exchange each Right (other than
Rights owned by the Acquiring Person) for shares of Common Stock of the Company
at an exchange ratio of one share of Common Stock per Right.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
without Board approval. The Rights will not interfere with any merger or other
business combination with a third party approved by the Board of Directors of
the Company since the Board of Directors may, at its option, at any time prior
to a Flip-in Date, redeem all but not less than all of the then outstanding
Rights as described above.
10
<PAGE>
MISCELLANEOUS
The outstanding Common Stock of the Company is, and the Common Stock, which
may be offered from time to time, when issued and paid for will be, fully paid
and non-assessable. Holders of Common Stock do not have any preemptive rights.
On liquidation, after payment of the liquidation preferences of the Class A
Common Stock and the Preference Stock, if any, the holders of the Common Stock
will be entitled to receive all amounts remaining for distribution to
stockholders.
The Co-Transfer Agents for the Common Stock are First Chicago Trust Company
of New York, New York, UMB Bank, N.A., Kansas City, Missouri and The R-M Trust
Company, Toronto, Ontario, Canada. The Registrar for the Common Stock is First
Chicago Trust Company of New York, New York, New York.
The outstanding Common Stock of the Company is, and the shares of Common
Stock, which may be offered from time to time, will be, unless otherwise
provided in a prospectus supplement, listed on the New York, Pacific and Toronto
Stock Exchanges.
11
<PAGE>
PLAN OF DISTRIBUTION
We may sell the Securities: (a) through agents; (b) through underwriters or
dealers; or (c) directly to one or more purchasers.
BY AGENTS
Securities may be sold through agents designated by us. The agents agree to
use their reasonable best efforts to solicit purchases for the period of their
appointment.
BY UNDERWRITERS
If underwriters are used in the sale, the Securities will be acquired by the
underwriters for their own accounts. The underwriters may resell the Securities
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Securities will be subject to
certain conditions. The underwriters will be obligated to purchase all the
Securities of the series offered if any of the Securities are purchased. Any
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
DIRECT SALES
Securities may also be sold directly by us. In this case, no underwriters or
agents would be involved.
This prospectus may also be used by persons who purchase Securities directly
from us and who wish to offer and sell those Securities, on terms then
available, in transactions in which they may be deemed underwriters within the
meaning of the Securities Act of 1933 (the "Act").
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of the
Securities may be underwriters as defined in the Act, and any discounts or
commissions received by them from us and any profit on the resale of the
Securities by them may be treated as underwriting discounts and commissions
under the Act. Any underwriters or agents will be identified and their
compensation described in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act, or to contribute with respect to payments which the underwriters,
dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their businesses.
LEGAL OPINIONS
The legality of the Securities will be passed upon for the Company by
Blackwell Sanders Peper Martin LLP, Two Pershing Square, 2300 Main Street,
Kansas City, Missouri 64108, and for the Underwriters by Milbank, Tweed, Hadley
& McCloy, 1 Chase Manhattan Plaza, New York, New York 10005. Milbank, Tweed,
Hadley & McCloy from time to time provides legal services to the Company.
EXPERTS
The consolidated financial statements and schedules included in the
Company's Annual Report on Form 10-K for the years ended December 31, 1997, 1996
and 1995, which are incorporated by reference in this prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in giving said reports.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of estimated expenses to be paid by
the Registrant in connection with the issuance and sale of the Securities being
registered.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee (actual)...... $ 194,600
Stock Exchange listing fees....................................... 40,000
Accounting fees and expenses...................................... 40,000
Printing fees..................................................... 175,000
Legal fees and expenses........................................... 120,000
Transfer Agent, Registrar and Trustee fees........................ 30,000
Rating Agency fees................................................ 45,000
Miscellaneous..................................................... 30,400
---------
Total........................................................... $ 675,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law confers broad powers
upon corporations incorporated in that state with respect to indemnification of
any person against liabilities incurred by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation or other business entity. The provisions of Section 145 are
not exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement or otherwise.
The Certificate of Incorporation of the Company contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
fullest extent permitted by the Delaware General Corporation Law.
There is in effect for the Company a dual phase insurance policy providing
directors and officers with indemnification, subject to certain exclusions and
to the extent not otherwise indemnified by the Company, against loss (including
expenses incurred in the defense of actions, suits or proceedings in connection
therewith) arising from any negligent act, error, omission or breach of duty
while acting in their capacity as directors and officers of the Company. The
policy also reimburses the Company for liability incurred in the indemnification
of its directors and officers.
There is also in effect a Bylaw provision entitling officers and directors
to be indemnified by the Company against costs or expenses, attorneys' fees,
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred in connection with any action, suit or proceeding, including actions
brought by or in the right of the Company, to which such persons are made or
threatened to be made a party, by reason of their being a director or officer.
Such right, however, may be made only as authorized by (i) a majority vote of
quorum of disinterested directors, or (ii) if such quorum is not obtainable or,
if obtainable, a majority thereof so directs, by independent legal counsel, or
(iii) by the stockholders of the Company, upon a determination that the person
seeking indemnification acted in good faith and in the manner that he or she
reasonably believed to be in or not opposed to the Company's best interest, or,
if the action is criminal in nature, upon a determination that the person
seeking indemnification had no reasonable cause to believe that such person's
conduct was unlawful. This provision also requires the Company, upon
authorization by the Board of Directors, to advance costs and expenses,
including attorneys' fees, reasonably incurred in defending such actions;
provided, that any person seeking such an advance first provide the Company with
an undertaking to repay any amount as to which it may be determined such person
is not entitled.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
1(a) Form of Underwriting Agreement for Debt Securities.
1(b) Form of Underwriting Agreement for Common Stock.
*4(a)(1) Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to UtiliCorp United Inc.'s Annual
Report on Form 10-K for the fiscal year ended December 31, 1991.)
*4(a)(2) Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to
Registration Statement No. 33-16990, filed September 3, 1987.)
*4(a)(3) Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 4(a)(5) to
Registration Statement No. 33-50260, filed July 31, 1992.)
*4(a)(4) Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 3.2 to UtiliCorp
United Inc.'s Quarterly Report on Form 10-Q for the period ended June 30, 1998.)
*4(b) Bylaws of the Registrant, as amended. (Exhibit 3.1 to UtiliCorp United Inc.'s Quarterly Report on
Form 10-Q for the period ended June 30, 1998.)
*4(c) Twentieth Supplemental Indenture, dated as of May 26, 1989, Supplement to Indenture of Mortgage and
Deed of Trust, dated July 1, 1951. (Exhibit 4(d) to Registration Statement No. 33-45382.)
*4(d)(1) Indenture, dated as of November 1, 1990, between the Company and The First National Bank of Chicago,
Trustee. (Exhibit 4(a) to UtiliCorp United Inc.'s Current Report on Form 8-K, dated November 30,
1990.)
*4(d)(2) First Supplemental Indenture, dated as of November 27, 1990. (Exhibit 4(b) to UtiliCorp United Inc.'s
Current Report on Form 8-K, dated November 30, 1990.)
*4(d)(3) Second Supplemental Indenture, dated as of November 15, 1991. (Exhibit 4(a) to UtiliCorp United
Inc.'s Current Report on Form 8-K, dated December 19, 1991.)
*4(d)(4) Third Supplemental Indenture, dated as of January 15, 1992. (Exhibit 4(c)(4) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1991.)
*4(d)(5) Fourth Supplemental Indenture, dated as of February 24, 1993. (Exhibit 4(c)(5) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1992.)
*4(d)(6) Fifth Supplemental Indenture, dated as of April 1, 1993. (Exhibit 4(c)(6) to UtiliCorp United Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1993.)
*4(d)(7) Sixth Supplemental Indenture, dated as of November 1, 1994. (Exhibit 4(d)(7) to UtiliCorp United
Inc.'s Registration Statement No. 33-57167, filed January 4, 1995.).
*4(d)(8) Seventh Supplemental Indenture, dated as of June 1, 1995. (Exhibit 4 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the period ended June 30, 1995.)
*4(d)(9) Eighth Supplemental Indenture, dated as of October 1, 1996. (Exhibit 4(b)(9) to UtiliCorp United
Inc.'s Annual Report on 10-K for the year ended December 31, 1996.
*4(d)(10) Ninth Supplemental Indenture, dated as of September 1, 1997. (Exhibit 4 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the period ended September 30, 1997).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
4(d)(11) Form of Supplemental Indenture.
*4(e) Form of Rights Agreement between UtiliCorp United Inc. and First Chicago Trust Company of New York,
as Rights Agent. (Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form 10-Q for the period
ended September 30, 1996.)
*4(f) Indenture, dated as of June 1, 1995, Junior Subordinated Debentures. (Exhibit 4(d)(1) to UtiliCorp
United Inc.'s Annual Report on Form 10-K for the year ended December 31, 1995.)
Long-term debt instruments of the Registrant in amounts not exceeding 10 per cent of the total assets
of the Registrant and its subsidiaries on a consolidated basis will be furnished to the Commission
upon request.
5 Opinion of Blackwell Sanders Peper Martin LLP.
*12 Computation of Ratio of Earnings to Fixed Charges. (Exhibit 12 to UtiliCorp United Inc.'s Quarterly
Report on Form 10-Q for the period ended September 30, 1998.)
23(a) Consent of Arthur Andersen LLP, Kansas City, Missouri.
23(b) Consent of Blackwell Sanders Peper Martin LLP. (included in opinion filed as Exhibit 5.)
24 Power of Attorney executed by certain officers and a majority of the Board of Directors of UtiliCorp
United Inc.
25 Statement of Eligibility of Trustee.
</TABLE>
- ------------------------
* Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b), if, in the aggregate, the changes in volume end
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
II-3
<PAGE>
with or furnished to the SEC by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant of the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceedings) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 10th day of
November, 1998:
<TABLE>
<S> <C> <C>
UTILICORP UNITED INC.
By: /s/ DALE J. WOLF
-----------------------------------------
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 10th day of November, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
Chairman of the Board and
RICHARD C. GREEN, JR.* Chief Executive Officer
- ------------------------------ (Principal Executive
Richard C. Green, Jr. Officer)
Vice President, Finance,
/s/ DALE J. WOLF Treasurer and Corporate
- ------------------------------ Secretary (Principal
Dale J. Wolf Financial Officer)
Vice President, Controller
JAMES S. BROOK* and Chief Accounting
- ------------------------------ Officer (Principal
James S. Brook Accounting Officer)
RICHARD C. GREEN, JR.*
JOHN R. BAKER*
HERMAN CAIN*
A Majority of the Board of
ROBERT K. GREEN* Directors
IRVINE O. HOCKADAY, JR.*
STANLEY O. IKENBERRY *
ROBERT F. JACKSON, JR.*
AVIS G. TUCKER*
</TABLE>
<TABLE>
<S> <C> <C>
As attorney-in-fact for
the above-named officers
*By: /s/ DALE J. WOLF and directors pursuant
------------------------- to powers of attorney
Dale J. Wolf duly executed by such
persons
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
1(a) --Form of Underwriting Agreement for Debt Securities.
1(b) --Form of Underwriting Agreement for Common Stock.
*4(a)(1) --Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to UtiliCorp United Inc.'s Annual
Report on Form 10-K for the fiscal year ended December 31, 1991.)
*4(a)(2) --Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 4(a)(1) to
Registration Statement No. 33-16990, filed September 3, 1987.)
*4(a)(3) --Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 4(a)(5) to
Registration Statement No. 33-50260, filed July 31, 1992.)
*4(a)(4) --Certificate of Amendment to Certificate of Incorporation of the Registrant. (Exhibit 3.2 to
UtiliCorp United Inc.'s Quarterly Report on Form 10-Q for the period ended June 30, 1998.)
*4(b) --Bylaws of the Registrant, as amended. (Exhibit 3.1 to UtiliCorp United Inc.'s Quarterly Report on
Form 10-Q for the period ended June 30, 1998.)
*4(c) --Twentieth Supplemental Indenture, dated as of May 26, 1989, Supplement to Indenture of Mortgage and
Deed of Trust, dated July 1, 1951. (Exhibit 4(d) to Registration Statement No. 33-45382.)
*4(d)(1) --Indenture, dated as of November 1, 1990, between the Company and The First National Bank of
Chicago, Trustee. (Exhibit 4(a) to UtiliCorp United Inc.'s Current Report on Form 8-K, dated
November 30, 1990.)
*4(d)(2) --First Supplemental Indenture, dated as of November 27, 1990. (Exhibit 4(b) to UtiliCorp United
Inc.'s Current Report on Form 8-K, dated November 30, 1990.)
*4(d)(3) --Second Supplemental Indenture, dated as of November 15, 1991. (Exhibit 4(a) to UtiliCorp United
Inc.'s Current Report on Form 8-K, dated December 19, 1991.)
*4(d)(4) --Third Supplemental Indenture, dated as of January 15, 1992. (Exhibit 4(c)(4) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1991.)
*4(d)(5) --Fourth Supplemental Indenture, dated as of February 24, 1993. (Exhibit 4(c)(5) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1992.)
*4(d)(6) --Fifth Supplemental Indenture, dated as of April 1, 1993. (Exhibit 4(c)(6) to UtiliCorp United
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1993.)
*4(d)(7) --Sixth Supplemental Indenture, dated as of November 1, 1994. (Exhibit 4(d)(7) to UtiliCorp United
Inc.'s Registration Statement No. 33-57167, filed January 4, 1995.)
*4(d)(8) --Seventh Supplemental Indenture, dated as of June 1, 1995. (Exhibit 4 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the period ended June 30, 1995.)
*4(d)(9) --Eighth Supplemental Indenture, dated as of October 1, 1996. (Exhibit 4(b)(9) to UtiliCorp United
Inc.'s Annual Report on 10-K for the year ended December 31, 1996.)
*4(d)(10) --Ninth Supplemental Indenture, dated as of September 1, 1997. (Exhibit 4 to UtiliCorp United Inc.'s
Quarterly Report on Form 10-Q for the period ended September 30, 1997.)
4(d)(11) --Form of Supplemental Indenture.
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<S> <C>
*4(e) --Form of Rights Agreement between UtiliCorp United Inc. and First Chicago Trust Company of New York,
as Rights Agent. (Exhibit 4 to UtiliCorp United Inc.'s Quarterly Report on Form 10-Q for the period
ended September 30, 1996.)
*4(f) --Indenture, dated as of June 1, 1995, Junior Subordinated Debentures. (Exhibit 4(d)(1) to UtiliCorp
United Inc.'s Annual Report on Form 10-K for the year ended December 31, 1995.)
Long-term debt instruments of the Registrant in amounts not exceeding 10 per cent of the total assets
of the Registrant and its subsidiaries on a consolidated basis will be furnished to the Commission
upon request.
5 --Opinion of Blackwell Sanders Peper Martin LLP.
*12 --Computation of Ratio of Earnings to Fixed Charges. (Exhibit 12 to UtiliCorp United Inc.'s Quarterly
Report on Form 10-Q for the period ended September 30, 1998.)
23(a) --Consent of Arthur Andersen LLP, Kansas City, Missouri.
23(b) --Consent of Blackwell Sanders Peper Martin LLP. (included in opinion filed as Exhibit 5.)
24 --Power of Attorney executed by certain officers and a majority of the Board of Directors of
UtiliCorp United Inc.
25 --Statement of Eligibility of Trustee.
</TABLE>
- ------------------------
*Exhibits marked with an asterisk are incorporated by reference as indicated
pursuant to Rule 411(c).
E-2
<PAGE>
Exhibit 1(a)
UTILICORP UNITED INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
[Date]
Name(s) of [Co-]Representative(s)
As Representative(s) of the
several Underwriters
c/o Name
Address
Ladies and Gentlemen:
From time to time UtiliCorp United Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule 1 to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters
<PAGE>
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") on
Form S-3; such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters have been declared effective by the Commission in such form;
no other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus");
the various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange
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Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), as applicable, and the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries (each a
"Subsidiary" and, collectively, the "Subsidiaries") has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to
the Company and its Subsidiaries taken as a whole, or sustained since the
date of the latest audited financial statements included or incorporated by
reference in the
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Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in the
capital stock, or material increase in the short-term debt or long-term
debt, of the Company or any of its Subsidiaries or any material adverse
change, or any development involving, or which may reasonably be expected
to involve, a prospective material adverse change in or affecting the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(e) This Agreement, the Indenture, the Designated Securities and any
applicable Pricing Agreement have been duly authorized by the Company and
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(f) The Indenture (assuming due execution and delivery thereof by the
trustee thereto (the "Trustee") and the Designated Securities (when
executed by the Company and authenticated in accordance with the Indenture
and delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities), will be the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforcement of creditors' rights generally and general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The Designated Securities (when executed by the Company
and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the purchaser thereof) will be entitled to the
benefits of the Indenture (subject to the exceptions set forth in the
preceding sentence). The Indenture has been qualified under the Trust
Indenture Act;
(g) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full power
and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary. All of the
outstanding shares of capital stock of the Company, and all of the
outstanding shares of capital stock of each Subsidiary, have been duly
authorized and validly issued, are fully paid and nonassessable. All of
the outstanding shares of capital stock of each Subsidiary are owned
directly or indirectly by the Company free and clear of any claim, lien,
encumbrance or security interest except as otherwise disclosed in writing
to the Representatives;
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(h) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution or delivery hereof or of any Pricing
Agreement or consummation of the transactions contemplated hereby or by any
Pricing Agreement result in a violation of, or constitute a default under,
the certificate of incorporation, by-laws or other governing documents of
the Company or any of its Subsidiaries, or any agreement, indenture or
other instrument to which the Company or any of its Subsidiaries is a party
or by which any of them is bound, or to which any of their properties is
subject, nor will the performance by the Company of its obligations
hereunder violate any law, rule, administrative regulation or decree of any
court or any governmental agency or body having jurisdiction over the
Company, its Subsidiaries or any of their properties, or result in the
creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or any of its Subsidiaries which would be
material to the Company and its Subsidiaries taken as a whole. Except for
permits and similar authorizations required under the Act, the Trust
Indenture Act, the Federal Power Act, the laws of the State of Colorado and
the securities or Blue Sky laws of certain jurisdictions, and except for
such permits and authorizations as have been obtained, no consent,
approval, authorization or order of any court, governmental agency or body
or financial institution is required in connection with the consummation of
the transactions contemplated by this Agreement and any applicable Pricing
Agreement;
(i) The Company and its Subsidiaries have good and marketable title
to all material real and personal property owned by them, in each case free
and clear of all mortgages, liens, encumbrances and defects, except such as
are described or referred to in the Prospectus as amended or supplemented
or such as do not materially affect the values of such property and do not
interfere with the use made or proposed to be made of such property by the
Company or such Subsidiaries; and any real property and buildings held
under lease by the Company and its Subsidiaries are held by them under
valid, existing and enforceable leases with such exceptions as are not
material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or such Subsidiaries;
(j) Except as described in the Prospectus as amended or supplemented,
there is no litigation or governmental proceeding to which the Company or
any of its Subsidiaries is a party or to which any property of the Company
or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
Subsidiaries which might result in any material adverse change in the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole;
(k) Neither the Company nor any Subsidiary is in violation of any
law, ordinance, governmental rule or regulation or court decree to which it
is subject which violation would have a material adverse effect on the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole;
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<PAGE>
(l) The Company has not distributed and will not distribute prior to
the Closing Date any offering material in connection with the offering and
sale of the Designated Securities other than the Registration Statement,
the Prospectus, the Prospectus Supplement or other materials, if any,
permitted by the Act;
(m) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and
(n) The accountants who have audited and reported upon the financial
statements filed with the Commission as part of the Registration Statement
and the Prospectus as amended or supplemented are independent accountants
as required by the Act and the regulations thereunder. The consolidated
financial statements and schedules (including the related notes) included
or incorporated by reference in the Registration Statement or Prospectus as
amended or supplemented fairly present the consolidated financial position,
the results of operations and changes in financial condition of the entity
or entities to which such statements relate at the respective dates and for
the respective periods to which they apply. Such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied, except as set forth in the Registration Statement and
Prospectus as amended or supplemented. The other financial and statistical
information and data set forth in the Registration Statement and the
Prospectus as amended or supplemented are fairly presented and have been
prepared on a basis consistent with such financial statements and the books
and records of the entities purported to be shown thereby.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor
by wire transfer of immediately available funds, all at the place and time and
date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such
time and date being herein called the "Time of Delivery" for such Securities.
6
<PAGE>
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made
7
<PAGE>
when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives and
upon their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture or supplement thereto, any Blue Sky and/or Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and/or legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) any filing
fees incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing, issuing and delivering the Securities; (vii) the fees and expenses of
any trustee and any agent of any trustee and the fees and disbursements of
counsel for any trustee in connection with any Indenture and the Securities; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except
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as provided in this Section, Section 8 and Section 11 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, such counsel being able to rely on the opinion, dated
the Time of Delivery for such Designated Securities, of Blackwell Sanders
Peper Martin LLP or on the opinions, dated the Time of Delivery for such
Designated Securities, of local counsel, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Blackwell Sanders Peper Martin LLP, counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
the Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives and their counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, has
duly obtained or has succeeded to and holds all material franchises
and other governmental and corporate authority necessary to carry on
the public utility business in which it is engaged and to own, lease
and operate the properties in use in such business and the maintenance
of such franchises and other authority is not subject to any
burdensome restriction or
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condition of an unusual character (except as described in the
Registration Statement);
(ii) Each Subsidiary of the Company (other than foreign
subsidiaries) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in
good standing in each jurisdiction in which the failure so to qualify
would have a materially adverse effect on the condition (financial or
other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(iii) The Company has full corporate power and corporate
authority to enter into and perform its obligations under this
Agreement, the Pricing Agreement with respect to the Designated
Securities and the Indenture, to borrow money as contemplated in this
Agreement, the Pricing Agreement with respect to the Designated
Securities and the Indenture, and to issue, sell and deliver the
Designated Securities;
(iv) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery by
the Trustee) constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general principles
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law);
(vi) The orders of the Federal Energy Regulatory Commission
and the Public Utilities Commission of the State of Colorado
authorizing the issuance and sale of the Designated Securities are in
effect at the Time of Delivery and no other approval, authorization,
consent or order of any federal, state or local commission or
governmental authority (other than under state securities or Blue Sky
laws as to which such counsel is not called upon to express an
opinion) is required for the issuance and sale of the Designated
Securities or the performance by the Company of its other obligations
under this Agreement or any applicable Pricing Agreement, except such
as are specified, obtained and in effect, and the issuance and sale of
the Designated Securities hereunder are in conformity with each such
approval, authorization, consent and order;
(vii) After due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the
Company or its Subsidiaries is a party or to which any of the
properties of the Company is subject
10
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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;
(viii) The statements made in the Registration Statement and
the Prospectus as amended or supplemented under the captions
"Description of Securities," "Description of Senior Notes" and "Plan
of Distribution," in Item 15 of the Registration Statement, in the
Company's most recent Annual Report or Form 10-K under the captions
"Business" (but only as to fuel supply contracts) and "Legal
Proceedings," insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings;
(ix) The Designated Securities, when executed by the Company
and authenticated in accordance with the terms of the Indenture
(assuming the due authorization, execution and delivery of the
Indenture by the Trustee), and issued and paid for pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company enforceable against
the Company in accordance with their respective terms, except that
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general principles
of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law);
(x) The execution, delivery and performance by the Company
of this Agreement and the Pricing Agreement with respect to the
Designated Securities will not violate any provision of applicable law
or the certificate of incorporation or the by-laws of the Company or
breach, or result of a default 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
Prospectus as amended or supplemented and the outstanding shares of
capital stock of the Company have been duly authorized and are validly
issued, fully paid and nonassessable;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (except for the financial
statements and related schedules 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
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that any of such documents (except for 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 and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities (except for the financial statements and related
schedules 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 Trust
Indenture Act and the rules and regulations thereunder; they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior
to the Time of Delivery for the Designated Securities (except for the
financial statements and related schedules 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 Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
for the Designated Securities (except for the financial statements and
related schedules 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 Time of Delivery for the Designated Securities, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior
to the Time of Delivery for the Designated Securities (except for the
financial statements and related schedules 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
12
<PAGE>
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
In giving the foregoing opinions, such counsel may rely on (1) the
opinions of local counsel, with respect to the opinion set forth in
paragraph (i) above, (2) the opinions heretofore rendered by Gary J.
Brouillette, Esq. and Messrs. Gage & Tucker with respect to the opinion set
forth in paragraph (xi) above and (3) the opinions of local counsel and the
opinion of Hogan & Hartson L.L.P., with respect to the opinion set forth in
paragraph (vi) above. Such counsel shall state that you and they are
justified in relying on such opinions, policies and certificates. With
respect to the opinions set forth in paragraphs (v) and (ix) above, such
counsel may assume that the law of New York is identical to the law of
Missouri in all respects material to such opinions.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
Arthur Andersen LLP and any of the other independent accountants of the
Company or the Subsidiaries who have certified the financial statements of
the Company and/or the Subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex
II hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been any material change in the capital stock, or material increase in the
short-term debt or long-term debt of the Company or any of its Subsidiaries
or any change, or any development involving, or which may reasonably be
expected to involve, a prospective change in or affecting the condition
(financial or other), results of operations, business, prospects, net worth
or assets of the Company and its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
13
<PAGE>
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preference stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implication, its rating of
any of the Company's debt securities or preference stock;
(g) The Federal Energy Regulatory Commission, the Public Utilities
Commission of the State of Colorado and any other commission or
governmental authority having jurisdiction over any of the Company's public
utility businesses shall have issued all approvals, authorizations,
consents and orders (the "Regulatory Actions") required thereby for the
issuance and sale of the Designated Securities and the performance by the
Company of its other obligations under this Agreement and the Pricing
Agreement relating to such Designated Securities, each Regulatory Action
shall be in effect, no proceedings to suspend the effectiveness of any
Regulatory Actions shall be pending or threatened, no Regulatory Action
shall contain any provision or condition that is unacceptable to the
Underwriters, and the issuance and sale of the Designated Securities to the
Underwriters hereunder shall be in conformity with each Regulatory Action;
and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of the chief executive officer or the chief
financial officer of the Company (or such other officer as is acceptable to
you) satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a), (e) and (g) of this Section and as to
such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended
14
<PAGE>
or supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the
15
<PAGE>
Designated Securities to which such loss, claim, damage or liability (or action
in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or
16
<PAGE>
another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Designated Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company.
10. This Agreement and any applicable Pricing Agreement shall be subject
to termination in the absolute discretion of the Representatives, without
liability on the part of any Underwriter of the Designated Securities relating
to such Pricing Agreement by notice to the Company, if on or after the date of
such Pricing Agreement there shall have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
17
<PAGE>
York Stock Exchange; (ii) a general moratorium on commercial banking activities
in New York or Missouri declared by either federal or state authorities; or
(iii) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war if the
effect of any such event specified in this Clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: President; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter, at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 11 hereof, the officers and directors of the
Company and each person who controls
18
<PAGE>
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six (6) counterparts hereof.
Very truly yours,
UtiliCorp United Inc.
By
--------------------------------
Accepted as of the date hereof:
[Name(s) of [Co-]Representative(s)]
By:
-------------------------------
[Name]
On behalf of each of the Underwriters
19
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
Name(s) of [Co-Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Name
Address
[Date]
Ladies and Gentlemen:
UtiliCorp United Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated _________________ (the "Underwriting Agreement"), between the
Company on the one hand and [Name(s)] on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 13 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 13
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from
<PAGE>
the Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
The statements set forth in the [first and second sentences in the last
paragraph] on the cover page of the Prospectus Supplement dated the date hereof
relating to the Designated Securities (the "Prospectus Supplement"), in the
paragraph containing stabilization information on page S-2 of the Prospectus
Supplement and in the [first and second paragraphs and in the second sentence of
the fourth paragraph] under the caption "UNDERWRITING" on page S-3 of the
Prospectus Supplement constitute the only information furnished by and on behalf
of the Underwriters through the Representatives as such information is referred
to in Sections 8 and 9 of the Underwriting Agreement.
If the foregoing is in accordance with your understanding, please sign and
return to us six (6) counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
UtiliCorp United Inc.
By:
-------------------------------
Accepted as of the date hereof:
[Name(s) of [Co-]Representative(s)]
By:
--------------------------------
[Name]
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
- ----------- ---------------------
$
Total $
3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any, from
to ]
PURCHASE PRICE BY UNDERWRITERS:
__% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if
any, from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House funds
INDENTURE:
Indenture, dated as of November 1, 1990, between the Company and The First
National Bank of Chicago, as Trustee, as supplemented by the Supplemental
Indenture, dated as of , 199
MATURITY:
4
<PAGE>
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
, %, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
5
<PAGE>
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$] principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest].
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES INSERT -
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest rate
will be adjusted on , and to a rate not less than
% of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT -
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , and ]
[to an annual rate of % above the average rate for -year [month]
[securities] [certificates of deposit] issued by and [insert
names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills plus %
of Interest Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for -month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); (from and
thereafter the rate will be the then current interest yield equivalent plus
% of Interest Differential].]
DEFEASANCE PROVISIONS:
6
<PAGE>
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
7
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, each of the
independent accountants shall furnish letters to the Underwriters to the effect
that, severally:
(i) They are independent certified public accountants with respect to
the Company and/or its Subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and/or the Subsidiaries audited and
reported upon by such accountants and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and the
Exchange Act and the regulations thereunder;
(iii) With respect to the entity or entities for which such
accountants have certified the financial statements of the Company and/or
the Subsidiaries included or incorporated by reference in the Registration
Statement (hereinafter, with respect to each of such accountants referred
to as an "Audited Entity"), they have performed specified procedures, not
constituting an audit, including a reading of all of the available interim
consolidated financial statements of the Audited Entity since the end of
the most recent fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of the Audited
Entity and certain of its subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated financial
statements incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented and all of the available interim
unaudited consolidated financial statements of the Audited Entity since the
end of the most recent fiscal year, and such other inquiries and procedures
as may be specified in such letter, and on the basis of such inquiries and
procedures nothing came to such accountant's attention that caused them to
believe that: (A) the unaudited consolidated financial statements of the
Audited Entity incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the rules and regulations thereunder or were not fairly
presented on a basis substantially consistent with that of the
corresponding audited financial statements incorporated by reference
therein, or (B) at a specified date not more than five days prior to the
date of such letter, there was any change in the outstanding capital stock
(in the case of a corporation) of the Audited Entity or consolidated
long-term debt of the Audited Entity, or any increase in preferred stock of
the Audited Entity, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Audited Entity incorporated
by reference in the Registration Statement and Prospectus as amended or
supplemented, except in each such case as set forth in or contemplated by
the Registration Statement and Prospectus as amended or supplemented or
except for such exceptions enumerated in such letter as shall have been
agreed to by the Underwriters and the Company; and
<PAGE>
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented, and the limited procedures referred
to in clause (iii) above, such accountants have carried out certain other
specified procedures, not constituting an audit, with respect to certain
financial information which is included or incorporated by reference in the
Registration Statement and Prospectus as amended or supplemented, which are
specified by the Underwriters or their counsel, and have found such
financial information to be in agreement with the relevant accounting,
financial and other records of the Audited Entity identified in such
letter.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
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Exhibit 1(b)
[_________] SHARES
UTILICORP UNITED INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
[Date]
Name(s) of [Co-] Representative(s)
As Representative(s) of the
several Underwriters
c/o Name
Address
Ladies and Gentlemen:
UtiliCorp United Inc., a Delaware corporation (the "Company"), proposes to
issue and sell an aggregate of ________ shares (the "Firm Shares") of its common
stock, (par value $1 per share) (the "Common Stock"), to the several
Underwriters named in Schedule I hereto (the "Underwriters"). The Company also
proposes to sell to the Underwriters, upon the terms and conditions set forth in
Section 2 hereof, up to an additional ________ shares (the "Additional Shares")
of Common Stock. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares".
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Shares by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
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 a prospectus supplement
relating to the Shares in the form 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
<PAGE>
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 $________ per Share (the
"purchase price per share"), the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm Shares
increased as set forth in Section 10 hereof).
The Company also agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the representations,
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 _______ Additional Shares. Additional
Shares may be purchased only for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. Upon any exercise of the
over-allotment option, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares (subject to such
adjustments as you may determine in order to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be purchased by
the Underwriters as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares increased
as set forth in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Milbank, Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York, NY 10005,
at 10:00 A.M., New York City time, on _____________ (the "Closing Date"). The
place of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of
Milbank, Tweed, Hadley & McCloy
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<PAGE>
at such time on such date (the "Option Closing Date"), which may be the same as
the Closing Date but shall in no event be earlier than the Closing Date nor
earlier than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the Underwriters to the Company of the Underwriters' determination to
purchase a number, specified in such notice, of Additional Shares. The place of
closing for any Additional Shares and the Option Closing Date for such Shares
may be varied by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor by certified or official bank check or checks payable in New York
Clearing House (next day) funds to the order of the Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) 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 Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(b) The Company will furnish to you, without charge (i) ____ 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) four
copies of the exhibits to the Incorporated Documents.
3
<PAGE>
(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 (f)
below, file any document which, upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(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 Shares 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.
(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
Shares are offered by the several Underwriters and by all dealers to whom Shares
may be sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Prospectus (or to file under the Exchange Act any document which, upon
filing, becomes an Incorporated Document) in order to comply with the Act or any
other law, the Company will forthwith prepare and, subject to the provisions of
paragraph (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 Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
4
<PAGE>
(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 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the
Shares 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, the Company will not sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock, for a period of ____ days after
the date of the Prospectus, without the prior written consent of ____________,
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 Shares.
(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
5
<PAGE>
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 furnished to the Company in writing by
or on behalf of any Underwriter through you expressly for use therein. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The registration
statement in the form in which it became 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 furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder, and any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) Neither the Company nor any of its subsidiaries (each a
"Subsidiary and, collectively, the "Subsidiaries") has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and its
Subsidiaries taken as a whole, or sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the 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;
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<PAGE>
(e) This Agreement has been duly authorized by the Company and
conforms in all material respects to the description thereof in the Preliminary
Prospectus and the Prospectus;
(f) The Shares, upon issuance and delivery and payment therefor in
the manner described herein, will be duly authorized, validly issued, fully paid
and nonassessable. The Shares conform to the description 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 Shares when issued,
pursuant to the Company's certificate of incorporation, bylaws or other
governing documents or any agreement or other instrument to which the Company or
any of its Subsidiaries is a party or by which it may be bound. Neither the
filing of the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of any shares
of the Company's capital stock;
(g) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business conducted
by it or the location of the properties owned or leased by it makes such
qualification necessary. All of the outstanding shares of capital stock of the
Company and all of the outstanding shares of capital stock of each Subsidiary,
have been duly authorized and validly issued, are fully paid and nonassessable.
All of the outstanding shares of capital stock of each Subsidiary are owned
directly or indirectly by the Company, free and clear of any claim, lien,
encumbrance or security interest except as otherwise disclosed in writing to the
Representatives;
(h) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution or delivery hereof or consummation of the
transactions contemplated hereby result in a violation of, or constitute a
default under, the certificate of incorporation, bylaws or other governing
documents of the Company or any of its Subsidiaries, or any agreement, indenture
or other instrument to which the Company or any of its Subsidiaries is a party
or by which any of them is bound, or to which any of their properties is
subject, nor will the performance by the Company of its obligations hereunder
violate any law, rule, administrative regulation or decree of any court or any
governmental agency or body having jurisdiction over the Company, its
Subsidiaries or any of their properties, or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the
Company or any of its Subsidiaries which would be material to the Company and
its Subsidiaries taken as a whole. Except for permits and similar
authorizations required under the Act, the Federal Power Act, the laws of the
States of Colorado 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;
(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
7
<PAGE>
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 Shares,
will not distribute any offering material in connection with the offering and
sale of the Shares 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.
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(p) The Company has complied with all provisions of Florida Statutes,
517.075, relating to issuers doing business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each of you and each other Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any 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;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Shares by such Underwriter to any person if a copy of the Prospectus
shall not have been delivered or sent to such person within the time required by
the Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such Preliminary Prospectus was corrected in the Prospectus, provided that the
Company has delivered the Prospectus to the several Underwriters in requisite
quantity on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or
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potential differing interests with you or among themselves, which firm shall be
designated in writing by ___________________________ 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 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 to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by 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
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<PAGE>
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective numbers of Firm Shares set forth opposite their names in
Schedule I hereto (or such numbers of Firm Shares increased as set forth in
Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) 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 or any
Underwriter, threatened by the Commission, and any request of the
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<PAGE>
Commission for additional information (to be included in the registration
statement or the prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business, prospects,
properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company which makes any
statement made in the Prospectus untrue or which, in the opinion of the Company
and its counsel or the Underwriters and their counsel, requires the making of
any addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect the
market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters, dated the Closing
Date, with respect to the validity of the Shares, the Registration Statement,
the Prospectus, and other related matters as you reasonably may request, such
counsel being 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;
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<PAGE>
(iii) The Company has full corporate power and corporate
authority to enter into and perform its obligations under this
Agreement with respect to the Shares and to issue the Shares;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The shares of the Company's Common Stock outstanding prior
to the issuance of the Shares have been duly authorized and are
validly issued, fully paid and nonassessable. There are no preemptive
or other rights to subscribe for or to purchase, or any restriction
upon the transfer of, any shares of the Company's Common Stock,
including the Shares 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 Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of the Company's Common
Stock under the Company's certificate of incorporation, bylaws or any
agreement or other instrument binding upon the Company known to such
counsel;
(vi) The Shares have been duly authorized, and, when delivered
in accordance with the terms of this Agreement will be validly issued,
fully paid and nonassessable;
(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
Shares are in effect on the Closing Date and no other approval,
authorization, consent or order of any federal, state or local
commission or governmental authority (other than under state
securities or Blue Sky laws, as to which such counsel need express no
opinion) is required for the issuance and sale of the Shares or the
performance by the Company of its other obligations under this
Agreement, except such as are specified, obtained and in effect, and
the issuance and sale of the Shares hereunder are in conformity with
each such approval, authorization, consent and order;
(viii) After due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the
Company or its Subsidiaries is a party or to which any of the
properties of the Company is subject that is required to be described
in the Registration Statement or the Prospectus as amended or
supplemented and is not so described or of any contract or other
document that is required to be described in the Registration
Statement or the Prospectus as amended or supplemented or to be filed
as an exhibit to the Registration Statement that is not described or
filed as required;
(ix) The statements made in the Registration Statement and the
Prospectus as amended or supplemented under the captions "Description
of Common Stock" and "Underwriting", in Item 15 of the Registration
Statement, in the Company's
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<PAGE>
Annual Report on Form 10-K for the year ended under the captions
"Business" (but only as to fuel supply contracts) and "Legal
Proceedings", insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings;
(x) The execution, delivery and performance by the Company of
this Agreement will not violate any provision of applicable law or the
certificate of incorporation or the bylaws of the Company or breach,
or result in a default under, any existing obligation of the Company
under any agreement or other instrument binding upon the Company known
to such counsel;
(xi) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the 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
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<PAGE>
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 Shares,
either the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Closing Date for the Shares (other than the
financial statements and related schedules and the other financial
information and data therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In giving the foregoing opinions, such counsel may rely on (1) the
opinions of local counsel, with respect to the opinion set forth in paragraph
(i) above, (2) the opinions heretofore rendered by Gary J. Brouillette, Esq. and
Messrs. Gage & Tucker with respect to the opinion set forth in paragraph (v)
above and (3) the opinions of local counsel and the opinion of 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
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<PAGE>
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 Shares and the performance by the Company of
its other obligations under this Agreement, each Regulatory Action shall be in
effect, no proceedings to suspend the effectiveness of any Regulatory Actions
shall be pending or threatened, no Regulatory Action shall contain any provision
or condition that is unacceptable to the Underwriters, and the issuance and sale
of the Shares to the Underwriters hereunder shall be in conformity with each
Regulatory Action;
(i) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(j) The Shares shall have been approved for listing, subject only to
official notice of issuance, on the New York, Pacific and Toronto Stock
Exchanges.
(k) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company to
each Underwriter as to the statements made therein.
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<PAGE>
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (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 Additional Shares.
9. EXPENSES. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Blue Sky and/or Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(g) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and/or legal investment
surveys; (iv) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(v) the cost of preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including all taxes on the transfer and sale of the
Shares; (vi) the fees and expenses of any transfer agent and registrant for the
Shares; and (vii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, Section 7 and Section 5(j) hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase on the Closing Date
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company are not
made within 72 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting
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Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Company, purchases Shares which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion after consultation with each other,
without liability on the part of any Underwriter to the Company by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case
may be, (i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York or Missouri shall have been declared by either federal or
state authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in _____ constitute 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. The first paragraph under the caption "Underwriting" will contain
the names and participations of the underwriters; the third paragraph will
contain the selling concession and the reallowance.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company, at the office of the
Company at 20 W. Ninth Street, Kansas City, Missouri 64105, Attention:
President or (ii) if to you, as Representative(s) of the several
Underwriters, care of [Name and Address].
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
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term "successors and assigns" as used in this Agreement shall include a
purchaser from any Underwriter of any of the Shares in his status as such
purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
UTILICORP UNITED INC.
By:
---------------------------
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
[Names of [Co-] Representative(s)]
As Representatives of the Several Underwriters
By: Name
By:
-------------------------------
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SCHEDULE I
UTILICORP UNITED, INC.
Number of
Underwriter Firm Shares
----------- -----------
21
<PAGE>
Exhibit 4(d)(11)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UTILICORP UNITED INC.
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
____% Senior Notes Due ____
-----------------------
_____ SUPPLEMENTAL INDENTURE
Dated as of __________
-----------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
_____ SUPPLEMENTAL INDENTURE, dated as of __________, (herein called the
"_____ Supplemental Indenture"), between UTILICORP UNITED INC., a corporation
duly organized and existing under the laws of the State of Delaware (hereinafter
called the "Company"), party of the first part, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association duly organized and existing under the
laws of the United States, as Trustee under the Original Indenture referred to
below (hereinafter called the "Trustee"), party of the second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of November 1, 1990 (hereinafter called the "Original
Indenture"), to provide for the issuance from time to time of certain of its
unsecured senior notes (hereinafter called the "Securities"), the form and terms
of which are to be established as set forth in Sections 201 and 301 of the
Original Indenture; and
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of establishing
the form or terms of the Securities of any series as permitted in Sections 201
and 301 of the Original Indenture; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of $___________ to be designated the "____% Senior
Notes Due ____" (the "Senior Notes"), and all action on the part of the Company
necessary to authorize the issuance of the Senior Notes under the Original
Indenture and this _____ Supplemental Indenture has been duly taken; and
<PAGE>
WHEREAS, all acts and things necessary to make the Senior Notes when
executed by the Company and completed, authenticated and delivered by the
Trustee as in the Original Indenture and this _____ Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed.
NOW, THEREFORE, THIS _____ SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, the Company covenants and agrees
with the Trustee, for the equal benefit of holders of the Senior Notes, as
follows:
ARTICLE ONE
DEFINITIONS
The use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original Indenture and the
forms of Senior Notes attached hereto as Exhibit A and Exhibit B.
ARTICLE TWO
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 201. ISSUE OF SENIOR NOTES. A series of Securities which shall be
designated the "____% Senior Notes Due ____" shall be executed, authenticated
and delivered in
2
<PAGE>
accordance with the provisions of, and shall in all respects be subject to, the
terms, conditions and covenants of the Original Indenture and this _____
Supplemental Indenture (including the form of Certificated Senior Note set forth
as Exhibit A and the form of Global Senior Note set forth as Exhibit B hereto).
The aggregate principal amount of Senior Notes of the series created hereby
which may be authenticated and delivered under the Original Indenture shall not,
except as permitted by the provisions of the Original Indenture, exceed
$___________.
Section 202. FORM OF SENIOR NOTES; INCORPORATION OF TERMS. The form of
the Senior Notes shall be (i) substantially in the form of Exhibit A attached
hereto if the Company advises the Trustee that the Senior Notes are not to be
issued as Global Securities, or (ii) substantially in the form of Exhibit B
attached hereto if the Company does not so notify the Trustee. The terms of
such Senior Notes are herein incorporated by reference and are part of this
_____ Supplemental Indenture.
Section 203. PLACE OF PAYMENT. The Place of Payment will be initially the
corporate trust offices of the Trustee which, at the date hereof, are located at
The First National Bank of Chicago, One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126 and The First National Bank of Chicago, 14 Wall
Street, 8th Floor, New York, New York 10005.
3
<PAGE>
ARTICLE THREE
MISCELLANEOUS
Section 301. EXECUTION OF SUPPLEMENTAL INDENTURE. This _____ Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in the Original Indenture, this _____
Supplemental Indenture forms a part thereof.
Section 302. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this _____ Supplemental Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
Section 303. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 304. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
_____ Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 305. SEPARABILITY CLAUSE. In case any provision in this _____
Supplemental Indenture or in the Senior Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
4
<PAGE>
Section 306. BENEFITS OF _____ SUPPLEMENTAL INDENTURE. Nothing in this
_____ Supplemental Indenture or in the Senior Notes, express or implied, shall
give to any person, other than the parties hereto and their successors hereunder
and the holders, any benefit or any legal or equitable right, remedy or claim
under this _____ Supplemental Indenture.
Section 307. GOVERNING LAW. This _____ Supplemental Indenture and each
Senior Note shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of said State.
Section 308. EXECUTION AND COUNTERPARTS. This _____ Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this _____ Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UTILICORP UNITED INC.
[Seal] By:
---------------------------
Name:
Title:
Attest:
- ---------------------------
Title:
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
[Seal] By:
---------------------------
Name:
Title:
Attest:
- ---------------------------
Title:
6
<PAGE>
STATE OF ________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ________, 199_, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________________ of UtiliCorp United Inc., the
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------
Notary Public,
State of ________
STATE OF ________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ________, 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of The First National Bank of Chicago, the national
banking association described in and which executed the foregoing instrument;
that he knows the seal of said association; that the seal affixed to said
instrument is such association seal; that it was so affixed by authority of the
Board of Directors of said association, and that he signed his name thereto by
like authority.
--------------------------------
Notary Public,
State of ________
<PAGE>
EXHIBIT A
[FORM OF FACE OF CERTIFICATED SENIOR NOTE]
REGISTERED REGISTERED
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
No. $
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ____________________, or registered assigns, the
principal sum of __________________________________________ DOLLARS on
_________________, and to pay interest thereon from _________________, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _________ and ___________ in each year,
commencing ____________, at the rate per annum provided in the title hereof,
until the principal hereof is paid or made available for payment, and, subject
to the terms of the Indenture, at the rate per annum provided in the title
hereof on any overdue principal and premium, if any, and (to the extent that the
payment of such interest shall be legally enforceable) on any overdue instalment
of interest. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be the _________ or __________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date, and may either be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, in which event notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made at the office or agency of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. The Company may
<PAGE>
pay principal by check payable in such money or by wire transfer to a dollar
account maintained by the holder (if the holder of the Security holds an
aggregate principal amount of Securities in excess of $5,000,000). The Company
may pay interest by mailing a dollar check to a holder's registered address or,
upon application by the holder hereof to the Registrar, not later than the
applicable record date, by wire transfer to a dollar account maintained by the
holder (if the holder of the Security holds an aggregate principal amount of
Securities in excess of $5,000,000).
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or an Authenticating Agent, by manual
signature of one of its authorized officers, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
UTILICORP UNITED INC.
Dated: By:
-----------------------------
Title:
- ----------------------
Attest:
--------------------------------
[Seal] Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Senior
Notes of the series designated
herein referred to in the
within-mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
--------------------------------
Authorized Officer
<PAGE>
[FORM OF REVERSE OF CERTIFICATED SENIOR NOTE]
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
This Senior Note is one of a duly authorized series of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 1, 1990, as amended and
supplemented (as amended and supplemented, the "Indenture"), between the Company
and The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $___________.
[This Security is not subject to any sinking fund.] [This Security is
subject to the following mandatory sinking fund ______________.] [This Security
is subject to the following optional sinking fund __________________.] [This
Security may not be redeemed at the option of the Company prior to the Maturity
Date.] [This Security may be redeemed at the option of the Company on any date
on or after ______________ (the "Redemption Date"). On and after the Redemption
Date this Security may be redeemed at any time in whole or from time to time in
part at the option of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption Date, on notice
given to the Holder not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Security in part only, a
new Security for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the surrender hereof.]
[If this Security is redeemable at the option of the Company, the
"Redemption Price" shall initially be ____% (the "Initial Redemption
Percentage") of the principal amount of this Security to be redeemed and shall
decline at each anniversary of the Redemption Date by ____% (the "Annual
Redemption Percentage Reduction") of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.]
Interest payments for this Security will be computed and paid on the basis
of a 360-day year of twelve 30-day months. If an Interest Payment Date falls on
a day that is not a Business Day, such Interest Payment Date will be the
following day that is a Business Day.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
<PAGE>
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and premium, if any,
and interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and in integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
2
<PAGE>
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
3
<PAGE>
EXHIBIT B
[FORM OF FACE OF GLOBAL SENIOR NOTE]
REGISTERED REGISTERED
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR.
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
No. $
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ____________________, or registered assigns, the
principal sum of __________________________________________ DOLLARS on
_________________, and to pay interest thereon from _________________, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _________ and ___________ in each year,
commencing ____________, at the rate per annum provided in the title hereof,
until the principal hereof is paid or made available for payment, and, subject
to the terms of the Indenture, at the rate per annum provided in the title
hereof on any overdue principal and premium, if any, and (to the extent that the
payment of such interest shall be legally enforceable) on any overdue instalment
of interest. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be the ________ or __________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date, and may either be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at
<PAGE>
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, in which event notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made at the office or agency of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal
by check payable in such money or by wire transfer to a dollar account
maintained by the holder (if the holder of the Security holds an aggregate
principal amount of Securities in excess of $5,000,000). The Company may pay
interest by mailing a dollar check to a holder's registered address or, upon
application by the holder hereof to the Registrar, not later than the applicable
record date, by wire transfer to a dollar account maintained by the holder (if
the holder of the Security holds an aggregate principal amount of Securities in
excess of $5,000,000).
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or an Authenticating Agent, by manual
signature of one of its authorized officers, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: By:
-----------------------------
Title:
- ----------------------
Attest:
--------------------------------
[Seal] Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Senior
Notes of the series designated
herein referred to in the
within-mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
--------------------------------
Authorized Officer
3
<PAGE>
[FORM OF REVERSE OF GLOBAL SENIOR NOTE]
UTILICORP UNITED INC.
____% SENIOR NOTE DUE ____
This Senior Note is one of a duly authorized series of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of November 1, 1990, as amended and
supplemented (as amended and supplemented, the "Indenture"), between the Company
and The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $___________.
[This Security is not subject to any sinking fund.] [This Security is
subject to the following mandatory sinking fund ______________.] [This Security
is subject to the following optional sinking fund ______________.] [This
Security may not be redeemed at the option of the Company prior to the Maturity
Date.] [This Security may be redeemed at the option of the Company on any date
on or after ______________ (the "Redemption Date"). On and after the Redemption
Date this Security may be redeemed at any time in whole or from time to time in
part at the option of the Company at the applicable Redemption Price (as defined
below) together with interest thereon payable to the Redemption Date, on notice
given to the Holder not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Security in part only, a
new Security for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the surrender hereof].
[If this Security is redeemable at the option of the Company, the
"Redemption Price" shall initially be ____% (the "Initial Redemption
Percentage") of the principal amount of this Security to be redeemed and shall
decline at each anniversary of the Redemption Date by ____% (the "Annual
Redemption Percentage Reduction") of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.]
Interest payments for this Security will be computed and paid on the basis
of a 360-day year of twelve 30-day months. If an Interest Payment Date falls on
a day that is not a Business Day, such Interest Payment Date will be the
following day that is a Business Day.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
<PAGE>
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
This Security shall be exchangeable for Securities registered in the names
of Persons other than the Depositary with respect to such series or its nominee
only as provided in this paragraph. This Security shall be so exchangeable if
(i) the Depositary notifies the Company it is unable or unwilling to continue as
Depositary for such series or at any time ceases to be a clearing agency
registered as such under the Securities Exchange Act of 1934, (ii) the Company
executes and delivers to the Trustee an Officers' Certificate providing that
this Security shall be so exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities of such series.
Securities so issued in exchange for this Security shall be of the same series,
having the same Interest Rate, if any, and Maturity Date and having the same
terms as this Security, in authorized denominations and in the aggregate having
the same principal amount as this Security and registered in such names as the
Depositary for such Global Security shall direct.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of a Security of the series of which this Security is a part
is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of and premium, if any, and interest, if any, on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this
2
<PAGE>
series, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part are issuable
only in registered form without coupons in denominations of $1,000 and in
integral multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
3
<PAGE>
EXHIBIT 5
November 10, 1998
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Ladies and Gentlemen:
We refer to the Registration Statement of UtiliCorp United Inc. (the
"Company") on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, for the
purpose of registering Debt Securities and Common Stock, par value $1.00 per
share, of the Company to be offered from time to time by the Company (the
"Offered Securities") on the terms to be determined at the time of the offering.
We are familiar with the proceedings to date with respect to such proposed
sale and have examined such records, documents and matters of law and satisfied
ourselves as to such matters of fact as we have considered relevant for the
purposes of this opinion.
We are of the opinion that when the terms of any class or series of the
Offered Securities have been authorized by appropriate action of the Company and
have been issued and sold as described in the Registration Statement, the
Prospectus and the applicable Prospectus Supplement, and with respect to the
Debt Securities, such Debt Securities have been duly executed, authenticated and
delivered in accordance with the applicable indenture or supplemental indenture,
then (i) the Offered Securities will be legally issued and, with respect to
shares of Common Stock, fully paid and nonassessable and (ii) the Debt
Securities will be validly authorized and issued and binding obligations of the
Company.
We hereby consent to the reference to us under the heading "Legal Opinions"
in the prospectus constituting a part of the Registration Statement and to the
filing of this opinion as Exhibit 5 to the Registration Statement. By giving
this consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended
and the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Blackwell Sanders Peper Martin LLP
<PAGE>
Exhibit 23(a)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3, used to register UtiliCorp
United Inc.'s common stock and debt, of our reports dated February 3, 1998,
included in UtiliCorp United Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1997, and to all references to our firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
Kansas City, Missouri,
November 10, 1998
<PAGE>
Exhibit 24
POWER OF ATTORNEY
We, the undersigned Directors and Officers of UtiliCorp United Inc., do
hereby name, constitute and appoint Richard C. Green, Jr. or Dale J. Wolf, our
agent and attorney-in-fact, for each of us and in our respective behalves as
Directors and/or as Officers of UtiliCorp United Inc., to sign and execute a
Registration Statement on Form S-3, and any amendments thereto, relating to the
registration with the Securities and Exchange Commission of not more than
$700,000,000 of Debt and/or Common Stock Securities of UtiliCorp United Inc. to
be issued in one or more public offerings.
Executed this 4th day of November, 1998.
<TABLE>
<CAPTION>
/s/ RICHARD C. GREEN, JR. /s/ AVIS G. TUCKER
- -------------------------------------------- --------------------------------------------
Richard C. Green, Jr. Avis G. Tucker
<S> <C>
/s/ IRVINE O. HOCKADAY, JR. /s/ ROBERT F. JACKSON, JR.
- -------------------------------------------- --------------------------------------------
Irvine O. Hockaday, Jr. Robert F. Jackson, Jr.
/s/ JOHN R. BAKER
- -------------------------------------------- --------------------------------------------
John R. Baker L. Patton Kline
/s/ HERMAN CAIN /s/ STANLEY O. IKENBERRY
- -------------------------------------------- --------------------------------------------
Herman Cain Stanley O. Ikenberry
/s/ ROBERT GREEN /s/ DALE J. WOLF
- -------------------------------------------- --------------------------------------------
Robert Green Dale J. Wolf
/s/ JAMES S. BROOK
- --------------------------------------------
James S. Brook
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------
UTILICORP UNITED INC.
(Exact name of obligor as specified in its charter)
Delaware 44-0541877
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
20 West Ninth Street
Kansas City, Missouri 64105
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State of
Illinois, on the 6th day of November, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ Steven M. Wagner
-------------------------------
Steven M. Wagner
First Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 6, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between UtiliCorp United
Inc. and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ Steven M. Wagner
-------------------------------
Steven M. Wagner
Firsr Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) 0081 4,490,272 1.a
b. Interest-bearing balances(2) 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,558,583 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C) 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D) 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases) 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M) 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding 2155 310,026 9.
10. Intangible assets (from Schedule RC-M) 2143 302,859 10.
11. Other assets (from Schedule RC-F) 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11) 2170 62,191,240 12.
</TABLE>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) 2200 21,810,607 13.a
(1) Noninterest-bearing(1) 6631 9,864,956 13.a1
(2) Interest-bearing 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) 2200 15,794,963 13.b
(1) Noninterest bearing 6631 482,528 13.b1
(2) Interest-bearing 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,858,711 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Sechedule RC-D) RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less 2332 4,356,061 16.a
b. With original maturity of more than one year A547 385,550 16.b
c. With original maturity of more than three years A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 310,026 18.
19. Subordinated notes and debentures 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G) 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20) 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838 0 23.
24. Common stock 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,188,187 25.
26. a. Undivided profits and capital reserves 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27) 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) 3300 62,191,240 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting 6 = Compilation of the bank's financial statements by
firm which submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3= Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -----------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
