GREAT PLAINS ENERGY INCORPORATED 6,318,000 shares of common stock (no par value) UNDERWRITING AGREEMENT
Exhibit
1.1
GREAT
PLAINS ENERGY INCORPORATED
6,318,000
shares of common stock
(no
par
value)
May 17,
2006
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
CREDIT
SUISSE SECURITIES (USA) LLC
As
representatives (the “Representatives”)
of
the
several Underwriters (as defined below)
c/o
Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4
World
Financial Center
▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit
Suisse Securities (USA) LLC
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Great
Plains
Energy Incorporated, a Missouri corporation (the “Company”), confirms its
agreement with the Representatives and each of the other Underwriters named
in
Schedule A hereto (collectively, the “Underwriters,” which term shall also
include any underwriter substituted as hereinafter provided in Section
10
hereof),
with respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers
of
shares of Common Stock, no par value, of the Company (“Common Stock”) set forth
in Schedule A-I (the “Initial Company Securities”), and with respect to the
grant by the Company to the Underwriters, acting severally and not jointly,
of
the option described in Section
2(b)
hereof
to purchase all or any part of additional shares of Common Stock to cover
over-allotments, if any (the “Option Company Securities”). In addition, the
Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. (the “Forward Seller”), at the
Company’s request in connection with the letter agreement dated the date hereof
between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Markets, Inc. (the “Forward
Counterparty”), acting through ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as agent (the
“Forward Agreement”), relating to the forward sale by the Company, subject to
the Company’s right to elect Cash Settlement (as such term is defined in the
Forward Agreement), of up to 1,755,000 shares of Common Stock (the shares
of
Common Stock issued by the Company upon settlement of the Forward Agreement,
whether pursuant to Physical Settlement (as such term is defined in the
Forward
Agreement), Net Physical Settlement (as such term is defined in the Forward
Agreement), as a result of an Acceleration Event (as such term is
defined
in the Forward Agreement) or otherwise, the “Settlement Securities”), confirm
their respective agreements with each of the other Underwriters with
respect to
the sale by the Forward Seller and the purchase by the Underwriters,
acting
severally and not jointly, of the number of shares of Common Stock set
forth in
Schedule A-II (the “Forward Securities”), which shares will be borrowed by the
Forward Counterparty for sale pursuant to this Agreement. In this Agreement,
the
Initial Company Securities, the Option Company Securities and the Settlement
Securities are referred to collectively as the “Company Securities.” The Initial
Company Securities, the Option Company Securities and the Forward Securities
are
referred to collectively as the “Securities.”
The
Company and the Forward Seller understand that the Underwriters propose
to make
a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement and the Forward Agreement have been executed
and
delivered.
The
Company has filed with the Securities and Exchange Commission (the
“SEC”) an
automatic shelf registration statement on Form S-3 (No. 333-133891),
including
the related preliminary prospectus or prospectuses, which registration
statement
became effective upon filing under Rule 462(e) of the rules and regulations
of
the SEC (the “1933 Act Regulations”) under the Securities Act of 1933, as
amended (the “1933 Act”). Such registration statement covers the registration of
the Securities under the 1933 Act. Promptly after execution and delivery
of this
Agreement, the Company will prepare and file a prospectus in accordance
with the
provisions of Rule 430B (“Rule 430B”) of the rules and regulations of the SEC
under the 1933 Act and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. Any information included in such prospectus that was omitted
from
such registration statement at the time it became effective but that
is deemed
to be part of and included in such registration statement pursuant
to Rule 430B
is referred to as “Rule 430B Information.” Each
prospectus used in connection with the offering of the Securities that
omitted
Rule 430B Information is herein called a “preliminary prospectus.”
Such
registration statement, at any given time, including the amendments
thereto at
such time, the exhibits and any schedules thereto at such time, the
documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933
Act at such time and the documents otherwise deemed to be a part thereof
or
included therein by 1933 Act Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it originally became
effective is herein called the “Original Registration Statement.” The
final
prospectus in the form first furnished to the Underwriters for use
in connection
with the offering of the Securities, including the documents incorporated
by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act
at the time
of the execution of this Agreement and any preliminary prospectuses
that form a
part thereof, is herein called the “Prospectus.”
For
purposes of this Agreement, all references to the Registration Statement,
any
preliminary prospectus, the Prospectus or any amendment or supplement
to any of
the foregoing shall be deemed to include the copy filed with the SEC
pursuant to
its Electronic Data Gathering, Analysis and Retrieval system
(“▇▇▇▇▇”).
All
references in
this Agreement to financial statements and schedules and other information
which
is “contained,” “included” or “stated” (or other references of like import) in
the Registration Statement, any preliminary prospectus or the Prospectus
shall
be deemed to mean and include all such financial statements and schedules
and
other information which is incorporated by reference in or otherwise deemed
by
1933 Act Regulations to be a part of or
2
included
in the Registration Statement, any preliminary prospectus or the Prospectus,
as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to
be a
part of or included in the Registration Statement, any preliminary prospectus
or
the Prospectus, as the case may be.
Section
1A.
Representations and Warranties of the Company.
(a) The
Company represents and warrants to, and agrees with, each Underwriter, the
Forward Seller and the Forward Counterparty as of the date hereof, as of the
Applicable Time (as defined below), as of the Closing Time (as defined below)
and as of each Date of Delivery (if any) (as defined below) that:
(i) Status
as a Well-Known Seasoned Issuer. (A) At the time of filing the Original
Registration Statement, (B) at the time of the most recent amendment thereto
for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant
to
Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time
the
Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to
the
Securities in reliance on the exemption of Rule 163 of the 1933 Act Regulations
and (D) at the date hereof, the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”),
including not having been and not being an “ineligible issuer” as defined in
Rule 405. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Securities, since their registration
on the Registration Statement, have been and remain eligible for registration
by
the Company on a Rule 405 “automatic shelf registration statement.” The Company
has not received from the SEC any notice pursuant to Rule 401(g)(2) of the
1933
Act Regulations objecting to the use of the automatic shelf registration
statement form.
At
the
time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of
the
Securities and at the date hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405.
(ii) Registration
Statement, Prospectus and Disclosure at Time of Sale. The Original
Registration Statement became effective upon filing under Rule 462(e) of the
1933 Act Regulations (“Rule 462(e)”) on May 8, 2006, and any post-effective
amendment thereto also became effective upon filing under Rule 462(e). No stop
order suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or
are pending or, to the knowledge of the Company, are contemplated by the SEC,
and any request on the part of the SEC for additional information has been
complied with.
3
Any
offer
that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only, of Rule
163(c) of the 1933 Act Regulations) has been filed with the SEC in accordance
with the exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”)
and otherwise complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the exemption
from Section 5(c) of the 1933 Act provided by Rule 163.
At
the
respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing
Time
(and, if any Option Company Securities are purchased, at each Date of Delivery),
the Registration Statement complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations, and did
not
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.
Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Time (and, if any Option Company Securities are purchased, at each Date of
Delivery), included or will include an untrue statement of a material fact
or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Each
preliminary prospectus (including the prospectus or prospectuses filed as part
of the Original Registration Statement or any amendment thereto) complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the SEC pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
As
of the
Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus(es)
(as defined below) issued at or prior to the Applicable Time, the Statutory
Prospectus (as defined below) and the information included on Schedule B hereto,
all considered together (collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus (as defined
below), when considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As
used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 7:00 pm (Eastern time) on May 17, 2006 or such other time as agreed
by the Company and the Representatives.
4
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the SEC by the Company, (ii) is a “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the SEC or (iii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms, in each
case in the form filed or required to be filed with the SEC or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule
433(g).
“Issuer
General Use Free Writing Prospectus” means any
Issuer
Free Writing Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified
in
Schedule C hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any preliminary
or
other prospectus deemed to be a part thereof.
Each
Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representatives as described
in
Section
3(e),
did
not, does not and will not include any information that conflicted, conflicts
or
will conflict with the information contained in the Registration Statement
or
the Prospectus, including any document incorporated by reference therein and
any
preliminary or other prospectus deemed to be a part thereof that has not been
superseded or modified. No filing of any "road show" (as defined in
Rule 433(h)) is required in connection with the offering of the
Securities.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein.
(iii) Incorporated
Documents.
The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus at the time they were or hereafter
are
filed with the SEC, complied and will comply in all material respects with
the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the rules and regulations of the SEC thereunder (the “1934 Act Regulations”), as
applicable, and, when read together with the other information in the
Prospectus, (a) at the time the Original Registration Statement became
effective, (b) at the earlier of time the Prospectus was first used and the
date
and time of the first contract of sale of Securities in this offering and (c)
at
the Closing Time (and, if any Option Company
5
Securities
are purchased, at each Date of Delivery), did not 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.
(iv) Due
Incorporation and Qualification.
The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the state of its incorporation with corporate
power and authority to own, lease and operate its properties and to conduct
its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Forward Agreement; and the Company
is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify and be in good standing would not
have a
Material Adverse Effect (as defined herein).
(v) Subsidiaries.
Each
“significant subsidiary” (as such term is defined in Rule 1-02 of Regulation
S-X) of the Company and each of KLT Inc.; Kansas City Power & Light Company
(“KCP&L); KLT Energy Services Inc.; Innovative Energy Consultants Inc.;
Custom Energy Holdings, L.L.C.; and Strategic Energy, L.L.C. (“Strategic
Energy”) (each, a “Subsidiary” and, together with each “significant subsidiary,”
the “Subsidiaries”) has been duly organized or formed and is validly existing as
a corporation or limited liability company in good standing under the laws
of
its jurisdiction of incorporation or formation, has corporate or limited
liability company power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly qualified
as a foreign corporation or limited liability company to transact business
and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect (as defined herein);
except as otherwise disclosed in the Registration Statement, all of the issued
and outstanding shares of capital stock or limited liability company interests
owned directly or indirectly by the Company of each such Subsidiary have
been
duly authorized and validly issued, are fully paid and non-assessable and
are
owned by the Company, directly or through subsidiaries, free and clear of
any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
and
none of the outstanding shares of capital stock or limited liability company
interests of any Subsidiary was issued in violation of the preemptive or
similar
rights of any securityholder of such Subsidiary.
(vi) Capitalization.
As of
the date hereof, the Company’s authorized, issued and outstanding share capital
comprises
74,909,798 shares of common stock, without par value; 100,000 shares of 3.80%
cumulative preferred stock, par value $100 per share; 100,000 shares of 4.50%
cumulative preferred
stock, par value $100 per share; 70,000 shares of 4.20% cumulative preferred
stock, par value $100 per share and 120,000 shares of 4.35% cumulative preferred
stock, par value $100 per share. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and are
fully
paid and non-assessable; none of the outstanding shares of capital stock
of
6
the
Company was issued in violation of the preemptive or other similar rights
of any
securityholder of the Company.
(vii) Accountants.
The
accountants who issued their reports on the financial statements included
or
incorporated by reference in the Prospectus are an independent registered
public
accounting firm within the meaning of the 1933 Act and the 1933 Act
Regulations.
(viii) Financial
Statements.
The
financial statements and any supporting schedules of the Company included
or
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly, in all material respects, the
financial position of the Company as of the dates indicated and the results
of
its operations and cash flows for the periods specified; and, except as stated
therein, said financial statements have been prepared in conformity with
generally accepted accounting principles in the United States (“GAAP”) applied
on a consistent basis; and any supporting schedules included in the Registration
Statement present fairly, in all material respects, the information required
to
be stated therein. The selected financial data and the summary financial
information included or incorporated by reference in the Prospectus present
fairly, in accordance with GAAP, the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included or incorporated by reference in the Registration
Statement.
(ix) Authorization
of Agreements.
This
Agreement has been duly authorized, executed and delivered by the Company.
The
Forward Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law).
(x) Authorization
and Description of Securities.
The
Initial Company Securities and the Option Company Securities have been duly
authorized for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement
against
payment of the consideration set forth herein, will be validly issued, fully
paid and non-assessable and the issuance of the Initial Company Securities
and
the Option Company Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company; the Settlement Securities have
been
duly authorized and reserved for issuance and sale to the Forward Counterparty
pursuant to the Forward Agreement and, when issued and delivered by the Company
to the Forward Counterparty pursuant to the Forward Agreement against payment
in
consideration set forth therein (if any), will be validly issued, fully paid
and
non-assessable and the issuance by the Company of the Settlement Securities
is
not subject to the preemptive or other similar rights of any securityholder
of
the Company; the Common Stock conforms, in all material respects, to all
statements relating thereto contained in the Prospectus and such description
conforms, in all material respects, to the rights set forth in the instruments
defining the same; no holder of the Securities is or will
7
be
subject to personal liability by reason of being such a holder; and the Forward
Agreement conforms in all material respects to the description thereof in
the
Prospectus.
(xi) Material
Changes or Material Transactions.
Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (a) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”) and (b) there have
been no transactions entered into by the Company and its subsidiaries considered
as one enterprise other than those in the ordinary course of business which
are
material with respect to the Company and its subsidiaries considered as one
enterprise.
(xii) No
Defaults.
Neither
the Company nor any of the Subsidiaries is in violation of its Articles of
Incorporation, charter, limited liability company agreement or by-laws. Except
as would not, individually or in the aggregate, reasonably be expected to
result
in a Material Adverse Effect, neither the Company nor any of the Subsidiaries
is
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
the
Subsidiaries is a party or by which it or any of them may be bound, or to
which
any of the property or assets of the Company or any of the Subsidiaries is
subject (collectively, the “Agreements and Instruments”). The execution and
delivery of this Agreement and the Forward Agreement and the consummation
of the
transactions contemplated herein and therein have been duly authorized by
all
necessary corporate action and do not and will not conflict with or constitute
a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any
Subsidiary pursuant to, any material Agreements and Instruments, nor will
such
action result in any violation of the provisions of the Articles of
Incorporation, charter, limited liability company agreement or by-laws, of
the
Company or any of the Subsidiaries or any applicable law, administrative
regulation or administrative or court order or decree.
(xiii) Regulatory
Approvals.
The
Company has made all necessary filings and obtained all necessary consents,
orders or approvals in connection with the issuance and sale of the Company
Securities or will have done so by the time the Company Securities shall
be
issued and sold, and no consent, approval, authorization, order or decree
of any
other court or governmental agency or body is required for the consummation
by
the Company of the transactions contemplated by this Agreement and the Forward
Agreement, except such as may be required under state securities (“Blue Sky”)
laws.
(xiv) Legal
Proceedings; Contracts.
Except
as may be set forth, incorporated or deemed incorporated by reference in
the
Prospectus, there is no action, suit or proceeding before or by any court
or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or
any of
the Subsidiaries which would reasonably be expected to result in any Material
Adverse Effect, or might materially and adversely affect its properties or
assets
8
or
would
reasonably be expected to materially and adversely affect the consummation
of
the transactions contemplated by this Agreement or the Forward Agreement;
and
there are no contracts or documents of the Company which are required to
be
filed as exhibits to the Registration Statement by the 1933 Act or by the
1933
Act Regulations which have not been so filed.
(xv) Franchises.
The
Company and the Subsidiaries hold, to the extent required, valid and subsisting
franchises, licenses and permits authorizing them to carry on the respective
utility businesses in which they are engaged (including, without limitation,
the
regulated utility businesses conducted by KCP&L and the competitive
electricity supply services provided by Strategic Energy), in the territories
from which substantially all of their gross operating revenue is derived,
except
where the failure to hold such franchises, licenses and permits would not
result
in a Material Adverse Effect.
(xvi) Environmental
Laws.
Except
as described, incorporated or deemed incorporated by reference in the
Registration Statement and except as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect,
(A)
neither
the Company nor any of the Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy
or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold
(collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (B)
the
Company and the Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with
their requirements, (C)
there
are no pending or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating
to
any Environmental Law against the Company or any of the Subsidiaries and
(D)
there
are no events or circumstances that would reasonably be expected to form
the
basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting
the
Company or any of the Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xvii) Investment
Company Act.
The
Company is not and, upon the issuance and sale of the Company Securities
as
contemplated herein and in the Forward Agreement and the application of the
net
proceeds from the sale of the Initial Company Securities and the Option Company
Securities and the net proceeds (if any) from the sale of the Settlement
Securities, each as described in the Prospectus, will not be required to
register as an “investment company” under the Investment Company Act of 1940, as
amended (the “1940 Act”).
9
(xviii) ERISA.
The
Company and the Subsidiaries are in compliance in all material respects with
all
presently applicable provisions of the Employee Retirement Income Security
Act
of 1974, as amended, including the regulations and published interpretations
thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has occurred
with respect to any “pension plan” (as defined in ERISA) for which the Company
or any of the Subsidiaries would have any material liability; the Company
and
the Subsidiaries have not incurred and do not expect to incur any material
liability under (A)
Title IV
of ERISA with respect to the termination of, or withdrawal from, any “pension
plan” or (B)
Section
412 or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “Code”); and each
“pension plan” for which the Company or any of the Subsidiaries would have any
liability that is intended to be qualified under Section 401(a) of the Code
is
so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(xix) Insurance.
The
Company and each of the Subsidiaries carry, or are covered by, insurance
in such
amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties.
(xx) Taxes.
The
Company and each of the Subsidiaries has filed all federal, state and local
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, except such as are being contested in
good
faith by appropriate proceedings, and no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had, nor does
the
Company have any knowledge of any tax deficiency which, if determined adversely
to the Company or any of the Subsidiaries, would reasonably be expected to
have,
a Material Adverse Effect.
(xxi) Internal
Controls.
The
Company and each of its Subsidiaries (A)
make and
keep accurate books and records and (B)
maintain
internal accounting controls which provide reasonable assurance that (i)
transactions are executed in accordance with management’s authorization; (ii)
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets; (iii) access to
its
assets is permitted only in accordance with management’s authorization; and (iv)
the reported accountability for its assets is compared with existing assets
at
reasonable intervals. Except as described in the Prospectus, since the end
of
the Company’s most recent audited fiscal year, there has been (I) no material
weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (II) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely
to
materially affect, the Company’s internal control over financial
reporting.
(xxii) ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
The
Company is in compliance, in all material respects, with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans,
and
the requirement that the Company and its consolidated subsidiaries maintain
the
following, among other, controls and procedures:
10
(A) a
system
of “internal accounting controls” as contemplated in Section 13(b)(2)(B) of the
1934 Act;
(B) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under the
1934 Act; and
(C) “internal
control over financial reporting” as such term is defined in Rule 13a-15(f)
under the 1934 Act.
(xxiii) Pending
Proceedings and Examinations.
The
Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject
of a pending proceeding under Section 8A of the 1933 Act in connection with
the
offering of the Securities.
(b) Additional
Certifications.
Any
certificate signed by any director or officer of the Company and delivered
to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters, the Forward
Seller and the Forward Counterparty as to the matters covered thereby on
the
date of such certificate and, unless subsequently amended or supplemented,
at
each representation date subsequent thereto.
Section
1B.
Representations and Warranties of the Forward Seller . The
Forward Seller represents and warrants to, and agrees with, each Underwriter
as
of the date hereof, as of the Applicable Time and as of the Closing Time
that:
(a) Underwriting
Agreement.
This
Agreement has been duly authorized, executed and delivered by the Forward
Seller
and, at the Closing Time, the Forward Seller will have the full right, power
and
authority to sell, transfer and deliver the Forward Securities.
(b) Authorization
of the Forward Agreement.
The
Forward Agreement has been duly authorized, executed and delivered by the
Forward Seller and constitutes a valid and binding obligation of the Forward
Seller, enforceable against the Forward Seller in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in
a
proceeding in equity or at law).
(c) Right
to Transfer.
The
Forward Seller will, at the Closing Time, have the free and unqualified right
to
transfer the Forward Securities to be sold by the Forward Seller hereunder,
free
and clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind; and upon delivery of such Forward Securities
and payment of the purchase price therefor as herein contemplated, assuming
each
of the Underwriters has no notice of any adverse claim, each of the Underwriters
will have the free and unqualified right to transfer the Forward Securities
purchased by it from the Forward Seller, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any
kind.
11
Section
2. Sale
and Delivery to
Underwriters; Closing.
(a) (i)
Initial
Company Securities.
On the
basis of the representations and warranties herein contained and subject
to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally
and not
jointly, agrees to purchase from the Company, at the price per share set
forth
in Schedule B, the number of Initial Company Securities set forth in Schedule
A-I opposite the name of such Underwriter, plus any additional number of
Initial
Company Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section
10
hereof.
(ii) Forward
Securities.
On the
basis of the representations and warranties herein contained and subject
to the
terms and conditions herein set forth, the Forward Seller agrees to sell
to each
Underwriter, severally and not jointly, and each Underwriter, severally
and not
jointly, agrees to purchase from the Forward Seller, at the price per share
set
forth in Schedule B, the number of Forward Securities set forth in Schedule
A-II
opposite the name of such Underwriter, plus any additional number of Forward
Securities which such Underwriter may become obligated to purchase pursuant
to
the provisions of Section
10
hereof.
(b) Option
Company Securities.
In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters, severally and not jointly, to purchase
up
to an additional 684,450 shares of Common Stock at the price per share
set forth
in Schedule B, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Company
Securities but not payable on the Option Company Securities. The option
hereby
granted will expire 30 days after the date hereof and may be exercised
in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Company Securities upon notice by the Representatives to the Company
setting forth the number of Option Company Securities as to which the several
Underwriters are then exercising the option and the time and date of payment
and
delivery for such Option Company Securities. Any such time and date of
delivery
(a “Date of Delivery”) shall be determined by the Representatives, but shall not
be later than seven full business days after the exercise of said option,
nor in
any event prior to the Closing Time, as hereinafter defined. If the option
is
exercised as to all or any portion of the Option Company Securities, each
of the
Underwriters, acting severally and not jointly, will purchase that proportion
of
the total number of Option Company Securities then being purchased which
the
number of Initial Company Securities set forth in Schedule A-I opposite
the name
of such Underwriter bears to the total number of Initial Company Securities,
subject in each case to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment.
Payment
of the purchase price for, and delivery of certificates for, the Initial
Company
Securities and the Forward Securities shall be made at the offices of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives,
the Forward Seller and the Company, at 9:30 A.M. (Eastern time) on the
fourth
(if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business
day after the date hereof (unless postponed in accordance with the provisions
of
12
Section
10),
or
such other time not later than ten business days after such date as shall
be
agreed upon by the Representatives, the Forward Seller and the Company
(such
time and date of payment and delivery being herein called “Closing
Time”).
In
addition, in the event that any or all of the Option Company Securities
are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Company Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon
by the
Representatives and the Company, on each Date of Delivery as specified
in the
notice from the Representatives to the Company.
Payment
for the Initial Company Securities and the Option Company Securities shall
be
made to the Company by wire transfer of immediately available funds to
a bank
account designated by the Company against delivery to the Representatives
for
the respective accounts of the Underwriters of certificates for the Initial
Company Securities and the Option Company Securities to be purchased by
them.
Payment for the Forward Securities shall be made to the Forward Seller
by wire
transfer of immediately available funds to a bank account designated by
the
Forward Seller against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Forward Securities
to be
purchased by them. It is understood that each Underwriter has authorized
the
Representatives, for its account, to accept delivery of, receipt for, and
make
payment of the purchase price for, the Securities, including any Option
Company
Securities, that it has agreed to purchase. Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
and Credit Suisse Securities (USA) LLC, individually and not in its capacity
as
representative of the Underwriters, may (but shall not be obligated to)
make
payment of the purchase price for the Securities, including any Option
Company
Securities, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case
may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations;
Registration.
Certificates for the Initial Company Securities and the Option Company
Securities, if any, shall be in such denominations and registered in such
names
as the Representatives may request in writing at least one full business
day
before the Closing Time or the relevant Date of Delivery, as the case may
be.
The certificates for the Initial Company Securities and the Option Company
Securities, if any, will be made available for examination and packaging
by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern
time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
Section
3.
Covenants of the Company.
The
Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and SEC Requests; Payment of Filing
Fees.
The
Company, subject to Section
3(b),
will
comply with the requirements of Rule 430B and will notify the Representatives
immediately, and confirm the notice in writing (which shall include notice
by
e-mail), until the Closing Time (i)
when any
post-effective amendment to the Registration Statement or new registration
statement relating to the Securities shall become effective, or any supplement
to the Prospectus or any amended Prospectus shall have been filed, (ii)
of the
receipt of any comments from the SEC, (iii)
of any
request by the SEC for any
13
amendment
to the Registration Statement or the filing of a new registration statement
or
any amendment or supplement to the Prospectus or any document incorporated
by
reference therein or otherwise deemed to be a part thereof or for additional
information, (iv)
of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or such new registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of
such purposes or of any examination pursuant to Section 8(e) of the 1933
Act
concerning the Registration Statement, (v)
any
withdrawal or lowering of the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc.
or Standard & Poor’s Rating Group (each, a “Rating Agency”) to any debt
securities of the Company or the public announcement by any Rating Agency
that
it has under surveillance or review, with possible negative implications,
its
rating of such debt securities, but only to the extent such Rating Agency
has
notified the Company of such surveillance or review, and (vi)
if the
Company becomes the subject of a proceeding under Section 8A of the 1933
Act in
connection with the offering of the Securities. The Company will effect
the
filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will
take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
SEC and,
in the event that it was not, it will promptly file such prospectus. The
Company
will make every reasonable effort to prevent the issuance of any stop order
and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment. The Company shall pay the required SEC filing fees relating
to
the Securities within the time required by Rule 456(b)(1)(i) of the 1933
Act
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if
applicable, by updating the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) either in a post-effective amendment
to the
Registration Statement or on the cover page of a prospectus filed pursuant
to
Rule 424(b)).
(b) Filing
of Amendments and Exchange Act Documents.
The
Company will give the Representatives and the Forward Seller notice of
its
intention to file or prepare any amendment to the Registration Statement
or new
registration statement relating to the Securities or any amendment, supplement
or revision to either any preliminary prospectus (including any prospectus
included in the Original Registration Statement or amendment thereto at
the time
it became effective) or to the Prospectus, whether pursuant to the 1933
Act, the
1934 Act or otherwise, and the Company will furnish the Representatives
and the
Forward Seller with copies of any such documents a reasonable amount of
time
prior to such proposed filing or use, as the case may be, and will not
file or
use any such document to which the Representatives, the Forward Seller
or
counsel for the Underwriters shall reasonably object. The Company has given
the
Representatives and the Forward Seller notice of any filings made pursuant
to
the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable
Time; the Company will give the Representatives notice of its intention
to make
any such filing from the Applicable Time to the Closing Time and will furnish
the Representatives and the Forward Seller with copies of any such documents
a
reasonable amount of time prior to such proposed filing and will not file
or use
any such document to which the Representatives, the Forward Seller or counsel
for the Underwriters shall reasonably object.
14
(c) Delivery
of Registration Statements.
The
Company has furnished or will deliver to the Representatives, the Forward
Seller
and counsel for the Underwriters, without charge, copies of the Original
Registration Statement and of each amendment thereto (including exhibits
filed
therewith or incorporated by reference therein and documents incorporated
or
deemed to be incorporated by reference therein or otherwise deemed to be
a part
thereof) and copies of all consents and certificates of experts, and will
also
deliver to the Representatives and the Forward Seller, without charge,
a
conformed copy of the Original Registration Statement and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of
the
Original Registration Statement and each amendment thereto furnished to
the
Underwriters will be identical to the electronically transmitted copies
thereof
filed with the SEC pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery
of Prospectuses.
The
Company has delivered to each Underwriter, without charge, as many copies
of
each preliminary prospectus as such Underwriter reasonably requested, and
the
Company hereby consents to the use of such copies for purposes permitted
by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during
the period when the Prospectus is required to be delivered under the 1933
Act,
such number of copies of the Prospectus (as amended or supplemented) as
such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to
the
electronically transmitted copies thereof filed with the SEC pursuant to
▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) Continued
Compliance with Securities Laws.
The
Company will comply with the 1933 Act and the 1933 Act Regulations and
the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the
Prospectus. If at any time when a prospectus relating to the Securities
is
required to be delivered under the 1933 Act any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of
counsel
for the Underwriters or counsel for the Company, to amend or supplement
the
Prospectus in order that the Prospectus will not include an untrue statement
of
a material fact or omit to state a material fact necessary in order to
make the
statements therein not misleading in the light of the circumstances existing
at
the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or to file a new registration statement
or
amend or supplement the Prospectus in order to comply with the requirements
of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and
file with the SEC such amendment, supplement or new registration statement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise
as may be necessary to correct such untrue statement or omission or to
comply
with such requirements, the Company will use its best efforts to have such
amendment or new registration statement declared effective as soon as
practicable (if it is not an automatic shelf registration statement with
respect
to the Securities) and the Company will furnish to the Underwriters such
number
of copies of such amendment, supplement or new registration statement as
the
Underwriters may reasonably request. If at any time following issuance
of an
Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or
would
conflict with the information contained in the Registration Statement (or
any
other registration statement relating to the Securities) or the Statutory
Prospectus or any preliminary prospectus or included or would include an
untrue
statement of a material fact or
15
omitted
or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent
time,
not misleading, the Company will promptly notify the Representatives and
will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(f) Earnings
Statements.
The
Company will make generally available to its securityholders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of
Rule 158 under the ▇▇▇▇ ▇▇▇) covering each twelve month period beginning,
in
each case, not later than the first day of the Company’s fiscal quarter next
following the “effective date” (as defined in such Rule 158) of the Registration
Statement.
(g) Blue
Sky Qualifications.
The
Company will endeavor, in cooperation with the Underwriters, to qualify
the
Securities for offering and sale under the applicable securities laws of
such
states and other jurisdictions of the United States as the Underwriters
may
designate and will maintain such qualifications in effect for as long as
may be
required for the distribution of the Securities; provided,
however,
that
the Company shall not be obligated to file any general consent to service
of
process or to qualify as a foreign corporation in any jurisdiction in which
it
is not so qualified. The Company will file such statements and reports
as may be
required by the laws of each jurisdiction in which the Securities have
been
qualified as above provided. The Company will promptly advise the Underwriters
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(h) 1934
Act Filings.
The
Company, during the period when the Prospectus is required to be delivered
under
the 1933 Act, will file promptly all documents required to be filed with
the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(i) Use
of
Proceeds.
The
Company will use the net proceeds received by it from the sale of the Initial
Company Securities and the Option Company Securities and the net proceeds
(if
any) received by it from the sale of the Settlement Securities in the manner
specified in the Prospectus under “Use of Proceeds.”
(j) Restriction
on Sale of Certain Securities.
During
a period of 90 days from the date of the Prospectus, the Company will not,
without the prior written consent of the Representatives, (i)
directly
or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option,
right or warrant to sell or lend or otherwise transfer or dispose of any
shares
of Common Stock or similar securities or any securities convertible into
or
exercisable or exchangeable or repayable for Common Stock or similar securities
or file any registration statement under the 1933 Act with respect to any
of the
foregoing or (ii)
enter
into any swap or any other agreement or any transaction that transfers,
in whole
or in part, directly or indirectly, the economic consequence of ownership
of the
Common Stock or similar securities, whether any such swap or transaction
described in clause (i)
or
(ii)
above is
to be settled by delivery of Common Stock or such other securities, in
cash or
otherwise. The foregoing sentence shall not apply to (A)
the
Initial Company Securities or the Option Company Securities to be sold
hereunder
or the issuance and sale of the Settlement
16
Securities,
or (B)
any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans, long-term incentive plans,
dividend
reinvestment or direct stock purchase plans, employee savings plus (401-K)
plans
and executive compensation plans of the Company or any of its
subsidiaries.
(k) Listing.
The
Company will use its best efforts to effect and maintain the listing of
the
Company Securities on the New York Stock Exchange.
(l) Issuer
Free Writing Prospectuses.
The
Company represents and agrees that, unless it obtains the prior consent
of the
Representatives, and each Underwriter represents and agrees that, unless
it
obtains the prior consent of the Company and the Representatives, it has
not
made and will not make any offer relating to the Securities that would
constitute an “issuer free writing prospectus,” as defined in Rule 433, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the SEC; provided,
however,
that
the Underwriters are authorized to use the information with respect to
the final
terms of the Securities in communications conveying information relating
to the
offering to investors. Any such free writing prospectus consented to by
the
Company and the Representatives is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents that it has treated or agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the SEC where required, legending and record
keeping.
Section
4.
Conditions; Obligations.
The
obligations of the several Underwriters to purchase and pay for the Initial
Company Securities and the Forward Securities pursuant to this Agreement
will be
subject to the accuracy of the representations and warranties on the
part of the
Company and the Forward Seller herein and to the accuracy of the statements
of
the Company’s officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company and
the
Forward Seller of all their respective covenants and agreements herein
contained
and to the following additional conditions precedent:
(a) Effectiveness
of Registration Statement; Filing of Prospectus; Payment of Filing
Fee.
The
Registration Statement has become effective and at Closing Time no stop
order
suspending the effectiveness of the Registration Statement shall have
been
issued under the 1933 Act or proceedings therefor initiated or threatened
by the
SEC, and any request on the part of the SEC for additional information
shall
have been complied with to the reasonable satisfaction of counsel to
the
Underwriters. A prospectus containing the Rule 430B Information shall
have been
filed with the SEC in the manner and within the time period required
by Rule
424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment
providing such information shall have been filed and become effective
in
accordance with the requirements of Rule 430B). The Company shall have
paid the
required SEC filing fees relating to the Securities within the time period
required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard
to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
of the
1933 Act Regulations and, if applicable, shall have updated the “Calculation of
Registration Fee” table in
17
accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration
Statement or on the cover page of a prospectus filed pursuant to Rule
424(b).
(b) Lock-up
Agreements.
At the
Closing Time, the Representatives shall have received agreements substantially
in the form of Exhibit A hereto signed by the persons listed on
Schedule D hereto.
(c) Material
Changes and Transactions.
Since
the most recent date as of which information is given in the Prospectus
and up
to the Closing Time, there shall not have been any Material Adverse Effect,
except as reflected in or contemplated by the Prospectus, and, since
such date
and up to the Closing Time, there shall not have been any material transactions
entered into by the Company and its subsidiaries considered as one enterprise
other than transactions contemplated by the Prospectus and transactions
in the
ordinary course of business.
(d) Opinion
of Counsel to the Company.
At
Closing Time, the Representatives shall have received the favorable opinion
dated as of the Closing Time of Sidley Austin LLP, counsel to the Company,
addressed to the Underwriters, the Forward Seller and the Forward Counterparty,
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit B hereto, and the Company
shall have furnished to such counsel such documents as they may request
for the
purpose of enabling them to pass upon such matters.
In
giving such opinion, such counsel may rely, as to all matters governed
by the
laws of jurisdictions other than the law of the State of New York and
the
federal law of the United States, upon the opinions of counsel satisfactory
to
the Representatives. Such counsel may also state that, insofar as such
opinion
involves factual matters, they have relied, to the extent they deem proper,
upon
certificates of officers of the Company and its subsidiaries and certificates
of
public officials. Such opinion shall not state that it is to be governed
or
qualified by, or that it is otherwise subject to, any treatise, written
policy
or other document relating to legal opinions, including, without limitation,
the
Legal Opinion Accord of the ABA Section of Business Law (1991).
(e) Opinion
of Company General Counsel.
At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel to the
Company
(“Company General Counsel”), addressed to the Underwriters, the Forward Seller
and the Forward Counterparty, in form and substance satisfactory to counsel
for
the Underwriters, together with signed or reproduced copies of such letter
for
each of the other Underwriters to the effect set forth in Exhibit C
hereto.
In
giving such opinion, such counsel may rely, as to all matters governed
by the
laws of jurisdictions other than the law of the State of Missouri and
the
federal law of the United States, upon the opinions of counsel satisfactory
to
the Representatives. Such counsel may also state that, insofar as such
opinion
involves factual matters, they have relied, to the extent they deem proper,
upon
certificates of officers of the Company and its subsidiaries and certificates
of
public officials.
(f) Opinion
of Counsel to the Underwriters.
At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, addressed to the Underwriters, the Forward Seller and the
Forward
Counterparty, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of
the other
Underwriters, and the
18
Company
shall have furnished to such counsel such documents as they may request
for the
purpose of enabling them to pass upon such matters.
In
giving such opinion, such counsel may rely, as to all matters governed
by the
laws of jurisdictions other than the law of the State of New York and
the
federal law of the United States, upon the opinions of counsel satisfactory
to
the Representatives. Such counsel may also state that, insofar as such
opinion
involves factual matters, they have relied, to the extent they deem proper,
upon
certificates of officers of the Company and its subsidiaries and certificates
of
public officials.
(g) Officer’s
Certificate.
At the
Closing Time the Underwriters, the Forward Seller and the Forward Counterparty
shall have received a certificate of the chief executive officer, President
or
Vice President and the chief financial or chief accounting officer of
the
Company, dated as of the Closing Time, to the effect that, to the best
of their
knowledge after reasonable investigation, (i)
since
the date hereof or since the respective dates as of which information
is given
in the Prospectus or the General Disclosure Package, there has not been
any
material adverse change in the condition, financial or otherwise, or
in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the
ordinary course of business, (ii)
the
other representations and warranties of the Company contained in Section
1A
hereof
are true and correct with the same force and effect as though expressly
made at
and as of the date of such certificate, (iii)
the
Company has performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing
Time, and (iv)
no stop
order suspending the effectiveness of the Registration Statement has
been issued
and no proceedings for that purpose have been initiated or threatened
by the
SEC.
(h) Comfort
Letter.
At
the
time of the execution of this Agreement, the Representatives shall have
received
a letter from Deloitte & Touche LLP, independent registered public
accounting firm to the Company, dated such date, addressed to the Underwriters,
the Forward Seller and the Forward Counterparty, in form and substance
satisfactory to the Representatives containing statements and information
of the
type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information
contained
in the Registration Statement, the preliminary prospectus supplement
dated May
15, 2006 and the prospectus dated May 8, 2006.
(i) Bring-down
Comfort Letter.
At
Closing Time, the Representatives shall have received from Deloitte & Touche
LLP, independent registered public accounting firm to the Company, a
letter
dated as of Closing Time, addressed to the Underwriters, the Forward
Seller and
the Forward Counterparty, to the effect that such independent registered
public
accounting firm reaffirms the statements made in the letter furnished
pursuant
to subsection (h) of this Section, except that the specified date referred
to shall be a date not more than three days prior to the Closing Time,
and such
letter shall contain statements and information of the type ordinarily
included
in accountants’ “comfort letters” with respect to the financial statements and
certain financial information contained in the Registration Statement
and the
Prospectus.
(j) Approval
of Listing.
(i)
At
Closing Time, the Initial Company Securities and the Option Company Securities
shall have been approved for listing, subject to official notice of issuance
and
evidence of satisfactory distribution, on the New York Stock Exchange,
and
satisfactory evidence of such actions shall have been provided to the
Representatives.
19
(ii) At
Closing Time, the Settlement Securities reserved for issuance upon settlement
of
the Forward Agreement shall have been approved for listing on the New
York Stock
Exchange, subject to notice of issuance.
(k) The
obligations of the several Underwriters to purchase and pay for, and
of the
Forward Seller to sell, the Forward Securities are subject to the condition
that, at the Closing Time, all of the conditions to effectiveness set
forth in
Section
3(a)
of the
Forward Agreement shall have either been satisfied or waived by the Forward
Counterparty.
(l) Conditions
to Purchase of Option Company Securities.
In the
event that the Underwriters exercise their option provided in Section
2(b)
hereof
to purchase all or any portion of the Option Company Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary
of the
Company hereunder shall be true and correct as of each Date of Delivery
and, at
the relevant Date of Delivery, the Representatives, on behalf of the
Underwriters, shall have received:
(i) Officers’
Certificate.
A
certificate, dated as of such Date of Delivery, of the chief executive
officer,
the President or a Vice President of the Company and of the chief financial
or
chief accounting officer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section
4(g)
hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion
of Counsel to the Company.
The
favorable opinion of Sidley Austin LLP, counsel for the Company in form
and
substance satisfactory to counsel for the Underwriters, dated as of such
Date of
Delivery, relating to the Option Company Securities to be purchased on
such Date
of Delivery and otherwise to the same effect as the opinion required
by
Section
4(d)
hereof.
(iii) Opinion
of Company General Counsel.
The
favorable opinion of the Company General Counsel, in form and substance
satisfactory to counsel for the Underwriters, dated as of such Date of
Delivery,
relating to the Option Company Securities to be purchased on such Date
of
Delivery and otherwise to the same effect as the opinion required by
Section
4(e)
hereof.
(iv) Opinion
of Counsel to the Underwriters.
The
favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Company
Securities to be purchased on such Date of Delivery and otherwise to
the same
effect as the opinion required by Section
4(f)
hereof.
(v) Bring-down
Comfort Letter.
A
letter from Deloitte & Touche LLP, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in the
same form
and substance as the letters furnished to the Representatives pursuant
to
Section
4(h)
hereof,
except that the “specified date” in the letter furnished pursuant to this
paragraph shall be a date not more than three days prior to such Date
of
Delivery.
(m) Other
Documents.
At the
Closing Time and at each Date of Delivery, counsel for the Underwriters
shall
have been furnished with such documents and opinions as such counsel
20
may
reasonably require for the purpose of enabling such counsel to pass upon
the
issuance (in the case of the Initial Company Securities and the Option
Company
Securities) and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of
any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with
the issuance (in the case of the Initial Company Securities and the Option
Company Securities) and sale of the Securities as herein contemplated
shall be
satisfactory in form and substance to the Representatives and to counsel
to the
Underwriters.
(n) Termination
of Agreement.
If any
condition specified in subsections (a)
-
(j),
(l)
and
(m)
of this
Section
4
shall
not have been fulfilled when and as required to be fulfilled, this Agreement
or,
in the case of any condition to the purchase of Option Company Securities,
on a
Date of Delivery which is after the Closing Time, the obligations of
the several
Underwriters to purchase the relevant Option Company Securities may be
terminated by the Representatives by notice to the Company at any time
prior to
the Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party,
except
Sections 5
and
6
and the
provisions concerning payment of expenses under Section
7
hereof
shall survive any such termination and remain in full force and
effect.
Section
5.
Indemnification.
(a) Indemnification
of the Underwriters.
The
Company agrees to indemnify and hold harmless each Underwriter, its
affiliates,
as such term is defined in Rule 501(b) under the 1933 Act (each, an
“Affiliate”) and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
the Forward
Seller and the Forward Counterparty, their respective Affiliates and
each
person, if any, who controls the Forward Seller or the Forward Counterparty,
as
the case may be, within the meaning of Section 15 of the 1933 Act or
Section 20
of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred,
arising out of any untrue statement or alleged untrue statement of
a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make
the statements therein not misleading or arising out of any untrue
statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any
amendment or supplement thereto), or the omission or alleged omission
therefrom
of a material fact necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided
that
(subject to Section
5(d)
below)
any such settlement is effected with the written consent of the Company;
and
21
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives) reasonably
incurred in
investigating, preparing or defending against any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or
any claim whatsoever based upon any such untrue statement or omission,
or any
such alleged untrue statement or omission, to the extent that any such
expense
is not paid under (i)
or
(ii)
above;
provided,
however,
that
this indemnity agreement shall not apply to any loss, liability, claim,
damage
or expense to the extent arising out of any untrue statement or omission
or such
alleged untrue statement or omission was made in reliance upon and
in conformity
with written information furnished to the Company by such Underwriter
through
the Representatives expressly for use in the Registration Statement
(or any
amendment thereto), including the Rule 430B Information or any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any
amendment or supplement thereto).
(b) Indemnification
of the Company, the Forward Seller and the Forward Counterparty.
Each
Underwriter severally agrees to indemnify and hold harmless the Company,
its
directors, each of its officers who signed the Registration Statement,
and each
person, if any, who controls the Company within the meaning of Section
15 of the
1933 Act or Section 20 of the 1934 Act, the Forward Seller and the
Forward
Counterparty their respective Affiliates and each person, if any, who
controls
the Forward Seller or the Forward Counterparty, as the case may be,
within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any
and all loss, liability, claim, damage and expense described in the
indemnity
contained in subsection (a)
of this
Section, as incurred, but only with respect to untrue statements or
omissions,
or alleged untrue statements or omissions, made in the Registration
Statement
(or any amendment thereto), including the Rule 430B Information or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or
any amendment or supplement thereto) in reliance upon and in conformity
with
written information furnished to the Company by such Underwriter through
the
Representatives expressly for use therein.
(c) General.
Each
indemnified party shall give notice as promptly as reasonably possible
to each
indemnifying party of any action commenced against it in respect of
which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to
the extent it is not materially prejudiced as a result thereof and
in any event
shall not relieve it from any liability which it may have otherwise
than on
account of this indemnity agreement. In the case of the Underwriters,
their
Affiliates and controlling persons indemnified pursuant to Section
5(a)
above,
counsel to such indemnified parties shall be selected by the Representatives,
in
the case of the Forward Seller, the Forward Counterparty and their
respective
Affiliates and controlling persons indemnified pursuant to Section
5(a)
or
Section
5(b)
above,
counsel to such indemnified parties shall be selected by the Forward
Seller, and
in the case of the Company, its directors, each of its officers who
signed the
Registration Statement and the Company’s controlling persons indemnified
pursuant to Section
5(b)
above,
counsel to such indemnified parties shall be selected by the Company.
An
indemnifying party may participate at its own expense in the defense
of such
action; provided,
however,
that
counsel to the indemnifying party shall not (except with the consent
of the
indemnified party) also be counsel to the indemnified party. In no
event shall
the indemnifying parties be liable for the fees and expenses of more
than
(i)
one
counsel (in addition
22
to
any
local counsel) for the Underwriters, their Affiliates and controlling
persons
and (ii)
one
counsel (in addition to any local counsel) for the Forward Seller,
the Forward
Counterparty and their respective Affiliates and controlling persons,
separate
from the indemnifying parties’ own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any
judgment with respect to any litigation, or any investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could
be sought
under this Section
5
or
Section
6
hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (x) includes
an
unconditional release of each indemnified party from all liability
arising out
of such litigation, investigation, proceeding or claim and (y) does
not include
a statement as to or an admission of fault, culpability or a failure
to act by
or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse.
If at
any time an indemnified party shall have requested an indemnifying
party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement
of the
nature contemplated by Section
5(a)(ii)
effected
without its written consent if (i)
such
settlement is entered into more than 45 days after receipt by such
indemnifying
party of the aforesaid request, (ii)
such
indemnifying party shall have received notice of the terms of such
settlement at
least 30 days prior to such settlement being entered into and (iii)
such
indemnifying party shall not have reimbursed such indemnified party
in
accordance with such request prior to the date of such settlement.
Section
6.
Contribution.
(a) If
the
indemnification provided for in Section
5
is
unavailable or insufficient to hold harmless an indemnified party,
then each
indemnifying party shall contribute to the amount paid or payable by
such
indemnified party as a result of the losses, liabilities, claims, damages
or
expenses referred to in Section
5
above as
incurred (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, from the
offering of
the Securities or (ii)
if the
allocation provided by clause (i)
above is
not permitted by applicable law, in such proportion as is appropriate
to reflect
not only the relative benefits referred to in clause (i)
above
but also the relative fault of the Company on the one hand, and the
Underwriters
on the other, in connection with the statements or omissions which
resulted in
such losses, liabilities, claims, damages or expenses as well as any
other
relevant equitable considerations. The relative benefits received by
the Company
(which benefits shall include the proceeds to be received by the Company
pursuant to the Forward Agreement assuming full Physical Settlement
(as such
term is defined in the Forward Agreement) of the Forward Agreement
by the
Company on the Maturity Date (as such term is defined in the Forward
Agreement))
on the one hand, and the Underwriters on the other, shall be deemed
to be in the
same respective proportions as the total net proceeds from the offering
(before
deducting expenses) received by the Company (which benefits shall include
the
proceeds to be received by the Company pursuant to the Forward Agreement
assuming full Physical Settlement (as such term is defined in the Forward
Agreement) of the Forward Agreement by the Company on the Maturity
Date (as such
term is defined in the Forward Agreement)) bear to the
23
total
discounts and commissions received by the Underwriters from the Company
under
this Agreement. 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 or the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to
correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this
Section
6
were
determined by pro rata allocation (even if the Underwriters were treated
as one
entity for such purposes) or by any other method of allocation which
does not
take account of the equitable considerations referred to above in this
Section
6.
The
amount paid by an indemnified party as a result of the losses, liabilities,
claims, damages or expenses referred to in the first sentence of this
subsection
(a)
shall be
deemed to include any legal or other expenses reasonably incurred by
such
indemnified party in connection with investigating, preparing or defending
any
action or claim which is the subject of this subsection (a).
Notwithstanding the provisions of this Section
6,
no
Underwriter shall be required to contribute any amount in excess of
the amount
by which the total price at which 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. The Underwriters’
obligations in this Section
6
to
contribute are several in proportion to their respective purchase obligations
as
set forth on Schedule A hereto and not joint.
(b) No
person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was not
guilty of such fraudulent misrepresentation. For purposes of this Section,
each
person, if any, who controls such Underwriter within the meaning of
Section 15
of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates
shall have the same rights to contribution as such Underwriter and
each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within
the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same
rights to contribution as the Company.
Section
7.
Payment of Expenses.
The
Company will pay all expenses incident to the performance of its obligations
under this Agreement and the Forward Agreement, including:
(a) The
preparation and filing of the Registration Statement and all amendments
thereto
and the preliminary prospectus and the Prospectus and any amendments
or
supplements thereto;
(b) All
expenses incident to the performance of the Company’s obligations under this
Agreement and the Forward Agreement;
(c) The
preparation, printing, issuance and delivery of the certificates for
the Company
Securities, including any stock or other transfer taxes and any stamp
or other
duties payable upon the sale, issuance or delivery of the Company
Securities;
24
(d) The
fees
and disbursements of the Company’s accountants, counsel, any depositary and
their respective counsel;
(e) The
qualification of the Securities under state securities laws in accordance
with
the provisions of Section
3(g)
hereof,
including filing fees and the reasonable fees and disbursements of
counsel for
the Underwriters in connection therewith and in connection with the
preparation
of any Blue Sky Survey and any Legal Investment Survey;
(f) The
printing and delivery to the Underwriters of copies of any preliminary
prospectus, any Permitted Free Writing Prospectus and of the Prospectus
and any
amendments or supplements thereto and any costs associated with electronic
delivery of any of the foregoing by the Underwriters to investors;
(g) The
fees
and expenses of any transfer agent or registrar for the Common
Stock;
(h) The
cost
of preparing, and providing any CUSIP or other identification number
for, the
Securities;
(i) The
fees
and expenses incurred in connection with the listing of the Company
Securities
on the
New York Stock Exchange; and
(j) All
reasonable out of pocket expenses incurred by the Representatives with
respect
to the road show, including expenses relating to slide production,
internet
roadshow taping and travel.
The
Underwriters shall be responsible for the fees and disbursements of
their
counsel, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, except to the extent provided in
Section
7(e).
Section
8.
Representations, Warranties and Agreements to Survive
Delivery.
All
representations, warranties and agreements contained in this Agreement
or in
certificates of officers of the Company submitted pursuant hereto or
thereto,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriters, the Forward
Seller, the
Forward Counterparty, any of their respective controlling persons,
or by or on
behalf of the Company, and shall survive the delivery of and payment
for any of
the Securities.
Section
9.
Termination.
(a) Termination
of this Agreement.
The
Representatives may terminate this Agreement, immediately upon notice
to the
Company, the Forward Seller and the Forward Counterparty, at any
time prior to
the Closing Time (i)
if there
has been, since the time of execution of this Agreement or since
the respective
dates as of which information is given in the Prospectus (exclusive
of any
supplement thereto or the General Disclosure Package), a Material
Adverse Effect
or (ii)
if there
shall have occurred any material adverse change in the financial
markets in the
United States or in the international financial markets, or any outbreak
or
escalation of hostilities or other calamity or crisis or development
involving a
prospective change in national or international, political, financial
or
economic conditions in each case, the effect of
25
which
is
such as to make it, in the judgment of the Representatives, impracticable
or
inadvisable to market the Securities or enforce contracts for the
sale of the
Securities, or (iii)
if
trading in any securities of the Company has been suspended by the
SEC or a
national securities exchange, or if trading generally on either the
American
Stock Exchange or the New York Stock Exchange or the NASDAQ national
market
shall have been suspended or materially limited, or minimum or maximum
prices
for trading have been fixed, or maximum ranges for prices for securities
have
been required, by any of said exchanges or by order of the SEC or
any other
governmental authority, or if a banking moratorium shall have been
declared by
either Federal or New York authorities, or a material disruption
has occurred in
commercial banking or securities settlement or clearance services
in the United
States, or (iv)
if the
rating assigned by any nationally recognized securities rating agency
to any
debt securities of the Company as of the date of this Agreement shall
have been
lowered since that date or if any such rating agency shall have publicly
announced that it has under surveillance or review, with possible
negative
implications, its rating of any debt securities of the Company, or
(v)
if there
shall have come to the attention of the Representatives any facts
that would
cause the Representatives to believe that the Prospectus or any Permitted
Free
Writing Prospectus, at the time it was required to be delivered to
a purchaser
of Securities, contained an untrue statement of a material fact or
omitted to
state a material fact necessary in order to make the statements therein,
in
light of the circumstances existing at the time of such delivery,
not
misleading.
(b) General.
If the
Underwriters shall so terminate this Agreement, pursuant to Section
9(a),
such
termination shall be without liability of any party to any other
party except
for any expenses to be paid or reimbursed by the Company pursuant
to
Section
7
and
provided,
further,
that
Sections 5
and
6
shall
survive such termination and remain in full force and effect.
Section
10.
Default by One of the Underwriters.
If
one or
more of the Underwriters shall fail at the Closing Time or a Date
of Delivery to
purchase Securities which it or they are obligated to purchase under
this
Agreement (the “Defaulted Securities”), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or
more of the
non-defaulting Underwriters, or any other underwriters, to purchase
all, but not
less than all, of the Defaulted Securities in such amounts as may
be agreed upon
and upon the terms herein set forth.
If,
however, the Underwriters shall not have completed such arrangements
within such
24-hour period, then:
(i) if
the
number of Defaulted Securities does not exceed 10% of the number
of Securities
to be purchased on such date, each of the non-defaulting Underwriters
shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the
proportions that their respective underwriting obligations hereunder
bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the
number of Defaulted Securities exceeds 10% of the number of Securities
to be
purchased on such date, this Agreement or, with respect to any Date
of Delivery
which occurs after the Closing Time, the obligation of the Underwriters
to
purchase and of the Company to sell the Option Company Securities
to be
purchased and sold on such Date of Delivery shall
26
terminate
without liability on the part of the Company, the Forward Seller,
the Forward
Counterparty and any non-defaulting Underwriter.
Nothing
in this Section
10
and no
action taken pursuant to this Section
10
shall
relieve any defaulting Underwriter from liability in respect of any
default of
such Underwriter under this Agreement. In the event of any such default
which
does not result in a termination of this Agreement or, in the case
of a Date of
Delivery which is after the Closing Time, which does not result in
a termination
of the obligation of the Underwriters to purchase and the Company
to sell the
relevant Option Company Securities, as the case may be, any of the
Representatives, the Forward Seller or the Company shall have the
right to
postpone Closing Time or the relevant Date of Delivery, as the case
may be, for
a period not exceeding seven days in order to effect any required
changes in the
Registration Statement or Prospectus or in any other documents or
arrangements.
As used herein, the term “Underwriter” includes any person substituted for an
Underwriter under this Section
10.
Section
11.
Notices.
Unless
otherwise provided herein, all notices required under the terms
and provisions
hereof shall be in writing, either delivered by hand, by mail or
by telex,
telecopier or telegram, and any such notice shall be effective
when received at
the address specified below.
If
to the
Company:
Great
Plains Energy Incorporated
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Treasurer
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to the
Underwriters, to the Representatives at:
▇▇▇▇▇▇▇
▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4
World
Financial Center
▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Global Origination Counsel
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
and
Credit
Suisse Securities (USA) LLC
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇
27
If
to the
Forward Seller:
▇▇▇▇▇▇▇
▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4
World
Financial Center
▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Equity-Linked Capital Markets Group
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
or
at
such other address as such party may designate from time to time
by notice duly
given in accordance with the terms of this Section
11.
Section
12.
No
Advisory or Fiduciary Relationship.
The
Company acknowledges and agrees that (a)
the
purchase and sale of the Securities pursuant to this Agreement,
including the
determination of the public offering price of the Securities
and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the
other hand,
(b)
in
connection with the offering contemplated hereby and the process
leading to such
transaction each Underwriter is and has been acting solely as
a principal and is
not the agent or fiduciary of the Company, or its stockholders,
creditors,
employees or any other party, (c)
no
Underwriter has assumed or will assume an advisory or fiduciary
responsibility
in favor of the Company with respect to the offering contemplated
hereby or the
process leading thereto (irrespective of whether such Underwriter
has advised or
is currently advising the Company on other matters) and no Underwriter
has any
obligation to the Company with respect to the offering contemplated
hereby
except the obligations expressly set forth in this Agreement,
(d)
the
Underwriters and their respective Affiliates may be engaged in
a broad range of
transactions that involve interests that differ from those of
the Company, and
(e)
the
Underwriters have not provided any legal, accounting, regulatory
or tax advice
with respect to the offering contemplated hereby and the Company
has consulted
its own legal, accounting, regulatory and tax advisors to the
extent it deemed
appropriate.
Section
13.
Governing Law.
This
Agreement and all the rights and obligations of the parties shall
be governed by
and construed in accordance with the laws of the State of New
York applicable to
agreements made and to be performed in such State. Any suit,
action or
proceeding brought by the Company or the Forward Seller against
the Underwriters
in connection with or arising under this Agreement shall be brought
solely in
the state or federal court of appropriate jurisdiction located
in the Borough of
Manhattan, The City of New York.
Section
14.
Parties.
This
Agreement shall inure to the benefit of and be binding upon the
Underwriters,
the Forward Seller, the Forward Counterparty and the Company
and their
respective successors. Nothing expressed or mentioned in this
Agreement is
intended or shall be construed to give any person, firm or corporation,
other
than the parties hereto and their respective successors and the
28
controlling
persons and officers and directors referred to in Sections 5
and
6
and
their heirs and legal representatives, any legal or equitable
right, remedy or
claim under or in respect of this Agreement or any provision
herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for
the sole and exclusive benefit of the parties hereto and their
respective
successors and said controlling persons and officers and directors
and their
heirs and legal representatives, and for the benefit of no other
person, firm or
corporation. No purchaser of Securities from any of the Underwriters
shall be
deemed to be a successor by reason merely of such purchase.
Section
15.
Counterparts.
This
Agreement 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
one and the same Agreement.
29
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this instrument along
with all counterparts will become a binding agreement between the Underwriters
and the Company in accordance with its terms.
|
Very
truly yours,
|
||
|
GREAT
PLAINS ENERGY INCORPORATED
|
||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Title:
Treasurer and Chief Risk
Officer
|
||
Accepted
by:
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇
&
▇▇▇▇▇ INCORPORATED
By: /s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
CREDIT
SUISSE SECURITIES (USA) LLC
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
Each
signing for itself and as
Representative
of the Underwriters
named
in
Schedule A
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
By: /s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
As
Forward Seller
SCHEDULE
A
|
Schedule
A-I
|
|
|
Name
of Underwriter
|
Number
of
Initial
Company
Securities
to be Sold by the Company
|
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
|
1,482,975
|
|
Credit
Suisse Securities (USA) LLC
|
1,482,975
|
|
Banc
of America Securities LLC
|
365,040
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
|
365,040
|
|
Wachovia
Capital Markets, LLC
|
365,040
|
|
BNY
Capital Markets, Inc.
|
125,483
|
|
KeyBanc
Capital Markets, a division of McDonald Investments Inc.
|
125,483
|
|
Lazard
Capital Markets LLC
|
125,482
|
|
Scotia
Capital (USA) Inc.
|
125,482
|
|
Total
|
4,563,000
|
|
Schedule
A-II
|
|
|
Name
of Underwriter
|
Number
of
Forward
Securities
to be Sold by the Forward
Seller
|
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
|
570,375
|
|
Credit
Suisse Securities (USA) LLC
|
570,375
|
|
Banc
of America Securities LLC
|
140,400
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
|
140,400
|
|
Wachovia
Capital Markets, LLC
|
140,400
|
|
BNY
Capital Markets, Inc.
|
48,262
|
|
KeyBanc
Capital Markets, a division of McDonald Investments Inc.
|
48,262
|
|
Lazard
Capital Markets LLC
|
48,263
|
|
Scotia
Capital (USA) Inc.
|
48,263
|
|
Total
|
1,755,000
|
Sch
A-1
SCHEDULE
B
1. The
initial public offering price per share for the Securities, determined as
provided in said Section
2,
shall
be $27.50.
2. The
purchase price per share for the Securities to be paid by the several
Underwriters shall be $26.6062,
being an amount equal to the initial public offering price set forth above
less
$0.8938
per share; provided that the purchase price per share for any Option Company
Securities purchased upon the exercise of the over-allotment option described
in
Section
2(b)
shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial Company Securities but not payable
on
the Option Company Securities.
Sch
B-1
SCHEDULE
C
NOT
APPLICABLE
Sch
C-1
SCHEDULE
D
DIRECTORS
AND OFFICERS OF GREAT PLAINS ENERGY
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Chairman
of the Board and Chief Executive Officer
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Director,
President and Chief Operating Officer
|
|
▇▇▇▇
▇. ▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
Director
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇
|
Director
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
Director
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
Executive
Vice President - Finance and Strategic Development and Chief
Financial
Officer
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
Executive
Vice President
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
Senior
Vice President, Corporate Services and Corporate
Secretary
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
Treasurer
and Chief Risk Officer
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
|
Vice
President - Public Affairs
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
Vice
President, Strategy and Investor Relations
|
|
▇▇▇▇
▇▇▇▇▇▇
|
Controller
|
|
▇▇▇▇
▇▇▇▇▇▇▇
|
General
Counsel and Assistant Secretary
|
Sch
D-1
Exhibit
A
FORM
OF
LOCK UP FROM DIRECTORS AND OFFICERS
_________,
2006
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
CREDIT
SUISSE SECURITIES (USA) LLC
As
representatives (the “Representatives”)
of
the
several Underwriters (as defined below)
c/o
Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4
World
Financial Center
▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit
Suisse Securities (USA) LLC
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re:
Proposed
Public Offering by Great Plains Energy Incorporated
Dear
Sirs:
The
undersigned, a stockholder and an officer and/or director of Great Plains
Energy
Incorporated, a Missouri corporation (the “Company”), understands that the
Representatives propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with the Company providing for the public offering of
shares (the “Securities”) of the Company’s common stock, no par value (the
“Common Stock”). In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder and an officer and/or director
of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees
with each
underwriter to be named in the Underwriting Agreement that, during a
period of
90 days from the date of the Underwriting Agreement, the undersigned will
not, without the prior written consent of the Representatives, directly
or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option
or
contract to purchase, purchase any option or contract to sell, grant
any option,
right or warrant to sell or lend, or otherwise dispose of or transfer
any shares
of the Company’s Common Stock or similar securities or any securities
convertible into or exercisable or exchangeable or repayable for Common
Stock or
similar securities, whether now owned or hereafter acquired by the undersigned
or with respect to which the undersigned has or hereafter acquires the
power of
disposition, or file, or cause to be filed, any registration statement
under the
Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the “Lockup Securities”) or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly
or
indirectly, the economic consequence of ownership of the Lockup Securities,
A-1
whether
any such swap or transaction is to be settled by delivery of any Lockup
Securities or such other securities, in cash or otherwise.
Notwithstanding
the foregoing, the undersigned may dispose of or hedge an aggregate
amount of up
to 5,000 shares of Common Stock during the period of 31 days to 90
days from the
date of the Underwriting Agreement.
|
Very
truly yours,
|
||
|
Signature:
|
__________________
|
|
|
Print
Name:
|
__________________
|
|
A-2
Exhibit
B
FORM
OF OPINION OF SIDLEY AUSTIN LLP
TO
BE DELIVERED PURSUANT TO SECTION 4(d)
May
[__],
2006
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
As
Representative of the several Underwriters and as Forward Seller
▇▇▇▇▇▇▇
▇▇▇▇▇ FINANCIAL MARKETS, INC.
As
Forward Counterparty
c/o
Merrill
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CREDIT
SUISSE SECURITIES (USA) LLC
As
Representative of the several Underwriters
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Great
Plains Energy Incorporated
6,318,000
Shares of Common Stock, no par
value
|
Ladies
and Gentlemen:
As
counsel for Great Plains Energy Incorporated, a Missouri corporation (the
“Company”),
we
address this letter to the Representatives individually and as the
representatives of the several Underwriters (the “Underwriters”)
named
in Schedule A to the Underwriting Agreement dated May 17, 2006 (the
“Underwriting
Agreement”)
among
the Representatives, as representatives of the Underwriters, the Company
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as Forward Seller thereunder (the “Forward
Seller”),
with
respect to the issuance and sale pursuant thereto of the respective numbers
of
shares of the Company’s common stock, no par value (the “Common
Stock”),
set
forth in Schedule A-I to the Underwriting Agreement (the “Initial
Company Securities”),
and
with respect to the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) of the Underwriting
Agreement to purchase all or any part of additional shares of Common Stock
to
cover over-allotments, if any (the “Option
Company Securities”),
and
to the Forward Seller and to the Forward Counterparty (as defined below).
In
addition, the Underwriting Agreement confirms, in connection with the letter
agreement dated May 17, 2006 between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial
Markets, Inc. (the “Forward
Counterparty”),
acting through the Forward Seller as agent (the “Forward
Agreement”),
relating to the forward sale by the Company, subject to the terms and conditions
of the Forward Agreement, of up to 1,755,000 shares of Common Stock (any
shares
of Common Stock issued by the Company upon settlement of the Forward Agreement,
the
B-1
“Settlement
Securities”),
the
respective agreements of the Company and the Forward Seller with each of
the
other Underwriters with respect to the sale by the Forward Seller and the
purchase by the Underwriters, acting severally and not jointly, of the number
of
shares of Common Stock set forth in Schedule A-II to the Underwriting Agreement
(the “Forward
Securities”),
which
shares have been borrowed by the Forward Counterparty and delivered by the
Forward Seller for sale pursuant to the Underwriting Agreement. In this letter,
the Initial Company Securities, the Option Company Securities and the Settlement
Securities are referred to collectively as the “Company
Securities.”
The
Initial Company Securities, the Option Company Securities and the Forward
Securities are referred to collectively as the “Securities.”
The
Company filed with the Securities and Exchange Commission (the “SEC”)
under
the Securities Act of 1933, as amended (the “1933
Act”):
(i)
on
May 8, 2006, a Registration Statement on Form S-3 (Registration No. 333-133891),
which registration statement became effective upon filing pursuant to Rule
462(e) under the 1933 Act; as used in this letter, the term “Registration
Statement”
shall
mean such registration statement including, except as otherwise specified
herein, all exhibits thereto (but excluding Form T-1) and the documents
incorporated or deemed to be incorporated by reference therein pursuant to
Item
12 of Form S-3 under the 1933 Act and any prospectus supplement relating
to the
Securities that was filed with the SEC and deemed to be part of and included
in
the Registration Statement pursuant to Rule 430B(f)(1) under the 1933
Act;
(ii)
on
May 15, 2006, pursuant to Rule 424(b) under the 1933 Act (“Rule
424(b)”),
the
Company’s preliminary prospectus supplement dated May 15, 2006 (the
“Preliminary
Prospectus Supplement”)
specifically relating to the Securities and the prospectus dated May 8, 2006
included in the Registration Statement (including the documents incorporated
or
deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3
under the 1933 Act, the “Base
Prospectus”);
as
used in this letter, the term “Preliminary
Prospectus”
shall
mean the Preliminary Prospectus Supplement together with the Base Prospectus;
and
(iii)
on
May 18, 2006, pursuant to Rule 424(b), the Company’s prospectus supplement dated
May 17, 2006 (the “Prospectus
Supplement”)
specifically relating to the Securities and the Base Prospectus; as used
in this
letter, the term “Prospectus”
shall
mean the Prospectus Supplement together with the Base Prospectus.
As
used
in this letter, the term “Applicable
Time”
means
7:00 p.m. (Eastern time) on May 17, 2006.
Pursuant
to the requirement of Section 4(d) of the Underwriting Agreement, this will
advise you that in the opinion of the undersigned:
1. The
Registration Statement became effective upon filing with the SEC; the
Preliminary Prospectus has been filed pursuant to Rule 424(b) in accordance
with
Rule 424(b); the electronic road show recording relating to the Securities
posted on May 15, 2006 on the website ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
is
exempt from filing pursuant to Rule 433 under the 1933 Act; the Prospectus
has
been filed pursuant to Rule 424(b) in accordance with Rule 424(b); and, to
B-2
our
knowledge, no stop order suspending the effectiveness of the Registration
Statement is in effect nor are any proceedings for such purpose pending before
or threatened by the SEC.
2. The
Registration Statement (other than the financial statements, financial data,
statistical data and supporting schedules included therein or omitted therefrom
and other than the documents incorporated by reference therein, as to none
of
which we express any opinion except as set forth in paragraph 3 below), at
the
time the Registration Statement became effective, the Preliminary Prospectus
(other than the financial statements, financial data, statistical data and
supporting schedules included therein or omitted therefrom and other than
the
documents incorporated by reference therein, as to none of which we express
any
opinion except as set forth in paragraph 3 below), at the Applicable Time,
and
the Prospectus (other than the financial statements, financial data, statistical
data and supporting schedules included therein or omitted therefrom and other
than the documents incorporated by reference therein, as to none of which
we
express any opinion except as set forth in paragraph 3 below), as of the
date of
the Prospectus and as of the date hereof, each complied as to form in all
material respects with the requirements of the 1933 Act and the rules and
regulations of the SEC promulgated thereunder.
3. The
documents incorporated by reference in the Preliminary Prospectus and the
Prospectus (other than the financial statements, financial data, statistical
data and supporting schedules included therein or omitted therefrom, as to
which
we express no opinion), at the respective times such documents were filed
with
the SEC, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended, and the
rules
and regulations of the SEC promulgated thereunder.
4. The
Forward Agreement conforms in all material respects to the description thereof
in the Prospectus.
5. The
Company is not, and upon issuance and sale of the Company Securities as
contemplated in the Underwriting Agreement and the Forward Agreement and
the
application of the net proceeds from the sale of the Initial Company Securities
and the Option Company Securities and the net proceeds (if any) from the
sale of
the Settlement Securities, each as described in the Prospectus, will not
be,
required to register as an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “1940
Act”).
In
acting
as counsel for the Company in connection with the transactions described
in the
first paragraph above, we have participated in conferences with officers
and
other representatives of the Company, including representatives of the
Underwriters and representatives of counsel for the Underwriters, at which
conferences the contents of the Registration Statement, the Preliminary
Prospectus and the Prospectus and related matters were discussed. We have
not
participated in the preparation of the documents incorporated by reference
in
the Registration Statement and the Prospectus and we have not independently
checked the accuracy or completeness of, or otherwise verified, and accordingly
are not passing upon, and do not assume responsibility for, the accuracy,
completeness or fairness of statements contained in the Registration Statement,
the Preliminary Prospectus or the Prospectus. However, as a result of such
consideration and participation, no facts have come to our attention that
have
caused us to believe that:
B-3
(a) the
Registration Statement, as of each “new effective date” with respect to the
Securities pursuant to, and within the meaning of, Rule 430(B)(f)(2) under
the
1933 Act, 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;
(b) the
Preliminary Prospectus, at the Applicable Time, included 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, not misleading; or
(c) the
Prospectus, as of the date of the Prospectus Supplement and on the date hereof,
included or includes an untrue statement of a material fact or omitted or
omits
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading;
except
in
each case we express no belief, and make no statement with respect to, the
financial statements, financial data, statistical data and supporting schedules
included or incorporated or deemed to be incorporated by reference therein
or
omitted therefrom.
Insofar
as the opinions and statements set forth in paragraphs 2 and (a) above address
the Registration Statement at a “new effective date” with respect to the
Securities:
(i) we
have
been informed by the Representatives that the date of first use of the
Preliminary Prospectus was May 15, 2006 and that such use occurred prior
to the
date and time of the first contract of sale of the Securities for the purposes
of Rule 430B(f)(1) under the 1933 Act; and, therefore, we assume that a “new
effective date” was May 15, 2006, and we have assumed, with your permission and
without independent investigation or verification, the accuracy of such
information; and
(ii) we
have
been informed by the Representatives that the Applicable Time was immediately
prior to the earlier of the date that the Prospectus was first used or the
date
and time of the first contract of sale of the Securities for the purposes
of
Rule 430B(f)(1) under the 1933 Act; and, therefore, we assume that a “new
effective date” was the Applicable Time, and we have assumed, with your
permission and without independent investigation or verification, the accuracy
of such information.
For
the
purpose of rendering the foregoing opinions and making the foregoing statements,
we have relied to the extent we have deemed appropriate, as to various questions
of fact material to such opinions and statements, upon the representations
made
by the Company in the Underwriting Agreement and upon certificates of officers
of the Company. We also have examined originals, or copies of originals
certified to our satisfaction, of such agreements, documents, certificates
and
other statements of governmental officials and other instruments, have examined
such questions of law and have satisfied ourselves as to such matters of
fact as
we have considered relevant and necessary as a basis for this letter. We
have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals and
the
conformity with the original documents of all documents submitted to us as
certified or photostatic copies or by facsimile or other means of
B-4
electronic
transmission or which we obtained from the SEC’s Electronic Data Gathering,
Analysis and Retrieval System (“▇▇▇▇▇”).
In
rendering our opinion set forth in paragraph 1 above with respect to the
absence
of stop orders or proceedings, we have relied solely upon the oral advice
of the
staff of the SEC via a telephonic call on the date hereof. In rendering our
opinion set forth in paragraph 1 above with respect to the filing of the
Preliminary Prospectus and the Prospectus, we have relied solely upon our
review
of the ▇▇▇▇▇ website of the SEC.
In
rendering our opinion set forth in paragraph 5 above, we have relied
exclusively, as to all factual matters, on the certificate, dated as of the
date
of this letter, of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President - Finance and
Strategic Development and Chief Financial Officer of the Company.
Any
opinion or statement herein which is expressed to be “to our knowledge” or is
otherwise qualified by words of like import means that the lawyers currently
practicing law with the Firm who have had active involvement in representing
the
Company in connection with the transactions contemplated by the Underwriting
Agreement and the Forward Agreement have no current conscious awareness of
any
facts or information contrary to such opinion or statement. Except to the
extent
expressly set forth in this letter, we have not undertaken any independent
investigation to determine the existence or absence of any fact, and no
inference as to our knowledge of the existence or absence of any fact should
be
drawn from our representation of the Company or the rendering of this
letter.
This
letter is limited to the federal laws of the United States of America and
the
laws of the State of New York. We express no opinion as to matters relating
to
securities or blue sky laws of any jurisdiction or any rules or regulations
thereunder (other than federal securities laws). This letter is based on
the law
in effect, and the facts and circumstances existing, on the date of this
letter.
We assume no obligation to update or supplement this letter to reflect any
facts
or circumstances which may hereafter come to our attention with respect to
the
opinions and statements expressed above, including any changes in applicable
law
which may hereafter occur.
This
letter is being rendered and delivered solely to and for the benefit of the
persons to whom it is addressed; accordingly, it may not be delivered to
or
relied upon by any other person (including, without limitation, any person
who
acquires the Securities from or through the Underwriters), quoted or filed
with
any governmental authority or other regulatory agency or otherwise circulated
or
utilized for any other purpose without our prior written consent.
Very
truly yours,
B-5
Exhibit
C
FORM
OF OPINION OF COMPANY
GENERAL
COUNSEL TO BE DELIVERED
PURSUANT
TO SECTION 4(e)
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a)
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The
Company is a validly organized and existing corporation in good
standing
under the laws of the State of Missouri and is duly qualified as
a foreign
corporation to do business in the State of
Kansas;
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b)
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The
Company is a “holding company,” as defined in Section 1262(a) of the
Energy Policy Act of 2005, duly authorized by its Articles of
Incorporation, under which it was organized to carry on the business
in
which it is engaged as set forth in the Prospectus; and the Company
has
the legal right to function and operate as a “holding company” in the
States of Missouri and Kansas;
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c)
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This
Agreement has been duly authorized, executed and delivered by the
Company;
the Forward Agreement has been duly authorized, executed and delivered
by
the Company and constitutes a valid and binding agreement of the
Company,
enforceable against the Company in accordance with its terms, except
as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement
of
creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law) and except that
I express
no opinion with respect to Section 3(h) of the Forward
Agreement;
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d)
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As
of the date of the Prospectus, the Company had outstanding
74,909,798 shares of common stock, without par value; 100,000 shares
of
3.80% cumulative preferred stock, par value $100 per share; 100,000
shares
of 4.50% cumulative preferred stock, par value $100 per share;
70,000
shares of 4.20% cumulative preferred stock, par value $100 per
share and
120,000 shares of 4.35% cumulative preferred stock, par value $100
per
share; all of such issued
and outstanding shares of capital stock of the Company have been
duly
authorized and validly issued and are fully paid and non-assessable;
and
none of the outstanding shares of capital stock of the Company
was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company;
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e)
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(i) The
Initial Company Securities and the Option Company Securities have
been
duly authorized for issuance and sale to the Underwriters pursuant
to this
Agreement and, when issued and delivered by the Company pursuant
to this
Agreement against payment of the consideration set forth herein,
will be
validly issued and fully paid and
non-assessable;
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(ii) The
Settlement Securities have been duly authorized and reserved for issuance
and
sale to the Forward Counterparty pursuant to the Forward Agreement and, when
issued and delivered by the Company pursuant to the Forward Agreement against
payment of the consideration set forth therein (if any), will be validly
issued,
fully paid and non-assessable;
C-1
(iii)
No
holder of the Securities is or will be subject to personal liability by reason
of being such a holder;
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f)
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The
information in the Prospectus under “Description of Capital Stock,” to the
extent that it constitutes matters of law, summaries of legal matters,
the
Company’s charter and bylaws or legal proceedings, or legal conclusions
is
correct in all material respects;
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g)
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The
issuance of the Company Securities is not subject to the preemptive
or
other similar rights of any securityholder of the
Company;
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h)
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Each
Subsidiary has been duly organized or formed and is validly existing
as a
corporation or limited liability company in good standing under
the laws
of the jurisdiction of its incorporation or formation, has the
corporate
or limited liability company power and authority to own, lease
and operate
its properties and to conduct its business as described in the
Prospectus
and is duly qualified as a foreign corporation or limited liability
company to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where
the failure so to qualify or to be in good standing would not result
in a
Material Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock or limited
liability company interests owned directly or indirectly by the
Company of
each Subsidiary have been duly authorized and validly issued, are
(in the
case of capital stock) fully paid and non-assessable and, to the
best of
such counsel’s knowledge, such capital stock or limited liability company
interests owned by the Company, are owned by the Company, directly
or
through subsidiaries, free and clear of any security interest,
mortgage,
pledge, lien, encumbrance or claim; and none of the outstanding
shares of
capital stock or limited liability company interests of any Subsidiary
was
issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary;
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i)
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No
approval, authorization, consent, certificate or order of any state
or
federal commission or regulatory authority (other than as may be
required
under the securities or blue sky laws of the various states, as
to which
such counsel need express no opinion) is necessary with respect
to the
issue and sale of the Company Securities as contemplated in this
Agreement
and in the Forward Agreement;
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j)
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The
Company and the Subsidiaries hold, to the extent required, valid
and
subsisting franchises, licenses and permits authorizing them to
carry on
the respective utility businesses in which they are engaged (including,
without limitation, the regulated utility businesses conducted
by
KCP&L and the competitive electricity supply services provided by
Strategic Energy),
in the territories from which substantially all of their gross
operating
revenue is derived except where the failure to hold such franchises,
licenses and permits would not reasonably be expected to result
in a
Material Adverse Effect;
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k)
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To
the best of such counsel’s knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed
in
the Prospectus, other than those disclosed therein, and all pending
legal
or governmental proceedings to which the Company is a party or
of which
any of its property is the subject which are not
described
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C-2
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in
the Registration Statement, including ordinary routine litigation
incidental to the business of the Company, are, considered in the
aggregate, not material to the financial condition of the
Company;
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l)
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To
the best of such counsel’s knowledge, the Company is not in violation of
its Articles of Incorporation, or in default in the performance
or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement,
note or lease to which it is a party or by which it or any of its
properties may be bound;
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m)
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The
execution, delivery and performance of this Agreement and the Forward
Agreement and the consummation by the Company of the transactions
contemplated by this Agreement, the Forward Agreement and in the
Prospectus (including the issuance and sale of the Company Securities
and
the use of the net proceeds received by the Company from the sale
of the
Initial Company Securities and the Option Company Securities and
the net
proceeds (if any) received by the Company from the sale of the
Settlement
Securities in the manner specified in the Prospectus under “Use Of
Proceeds”) and compliance by the Company with its obligations under this
Agreement or the Forward Agreement do not and will not conflict
with or
constitute a breach of, or default under, or result in the creation
or
imposition of any lien, charge or encumbrance upon any property
or assets
of the Company or any Subsidiary pursuant to any material Agreements
and
Instruments, or any law, administrative regulation or administrative
or
court order or decree known to such counsel to be applicable to
the
Company of any court or governmental agency, authority or body
or any
arbitrator having jurisdiction over the Company; nor will such
action
result in any violation of the provisions of the Articles of Incorporation
or by-laws of the Company; and
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n)
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To
the best of such counsel’s knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
or
documents required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed or
incorporated by reference as exhibits to the Registration Statement,
the
descriptions thereof or references thereto are correct in all material
respects, and no default exists in the due performance or observance
of
any material obligation, agreement, covenant or condition contained
in any
contract, indenture, mortgage, loan agreement, note, lease or other
instruments described, referred to, filed or incorporated by reference
therein.
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C-3