EXHIBIT B-3
[Form of Underwriting Agreement for Common Stock]
__________ Shares
AMEREN CORPORATION
Common Stock
Par Value $.01 Per Share
UNDERWRITING AGREEMENT
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_________, 199__
[Underwriter Representatives]
As Representative of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
Ameren Corporation , a Missouri corporation (the "Company"), confirms its
agreement with you and each of the other underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, with respect to the sale by the Company and the purchase by the
Underwriters of ____________ shares of the Company's Common Stock, par value
$.01 per share, described in Schedule I hereto (the "Stock"). If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives," as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement (the file number
of which is set forth in Schedule I hereto) on such Form, including a Basic
Prospectus, for registration under the Act of the offering and sale of up to
$______________ offering amount of securities, including the Stock. The
Company may have filed one or more amendments thereto, and may have used a
Preliminary Prospectus, each of which has previously been furnished to you. Such
registration statement, as so amended, has become effective. The offering of the
Stock is a Delayed Offering and, although the Basic Prospectus may not include
all the information with respect to the Stock and the offering thereof required
by the Act and the rules thereunder to be included in the Final Prospectus, the
Basic Prospectus includes all such information required by the Act and the rules
thereunder to be included therein as of the Effective Date. The Company will
next file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such registration statement
relating to the Stock and the offering thereof. As filed, such final prospectus
supplement shall include all required information with respect to the Stock and
the offering thereof and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date, the Final Prospectus (and any supplement thereto),
including in each case the documents then deemed to be incorporated by reference
therein, will comply in all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or 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; provided, however, that the Company makes
no representations or warranties as to the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean the later of
the date that the Registration Statement initially became effective, each date
that any post-effective amendment or amendments thereto became or become
effective or the date of the filing of the Company's most recent Annual Report
on Form 10-K. "Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. "Basic Prospectus" shall mean
the prospectus referred to in paragraph (a) above contained in the Registration
Statement at the Effective Date. "Preliminary Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes the
Stock and the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus supplement relating to
the Stock that is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic
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Prospectus. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time and, in the event any
post effective amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so amended.
"Rule 415," "Rule 424," and "Regulation S-K" refer to such rules or regulation
under the Act. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Delayed Offering" shall mean an
offering of securities pursuant to Rule 415 which does not commence promptly
after the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities so
offered.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
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upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the number of shares of the Stock set forth opposite such
Underwriter's name in Schedule II hereto. The Company agrees to pay to the
Representatives for the respective accounts of the several Underwriters as
compensation for the commitments and services contemplated by this Agreement the
underwriting commission set forth in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Stock shall be
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made on the date and at the time specified in Schedule I hereto (or such later
date not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Stock being herein
called the "Closing Date"). Delivery of the Stock shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price therefor, as shown on Schedule I hereto, to or upon the order of the
Company by wire transfer or certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in immediately available funds.
Delivery of the Stock shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Stock shall be made at the office specified in Schedule
I hereto. Certificates for the Stock shall be registered in such names and in
such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
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The Company agrees to have the Stock available for inspection, checking and
packaging by the Representatives in New York, New York, not later than 1:00
P.M., New York City time, on the business day prior to the Closing Date.
4. Covenants of the Company. The Company covenants with each Underwriter
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that:
(a). The Company will use its best efforts to cause any post-effective
amendment to the Registration Statement, if not effective at the Execution
Time, to become effective. Prior to the termination of the offering of the
Stock, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Basic Prospectus (other than a prospectus supplement
relating solely to an offering of the Company's Common Stock other than the
Stock) unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when any post-effective amendment
to the Registration Statement, if not effective at the Execution Time,
shall have become effective; (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b); (iii) when, prior to termination of the offering of the Stock,
any amendment to the Registration Statement shall have been filed or become
effective; (iv) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Final Prospectus or for any
additional information; (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose; and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Stock for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Stock is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the
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Company which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
offering.
(e) The Company will cooperate in good faith with the Representatives
in qualifying the Stock for offer and sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Stock, and will arrange for the determination of the legality of the Stock
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I hereto, the
Company will not, without the consent of the Representatives, offer, sell
or contract to sell, or otherwise dispose of, by public offering, or
announce the public offering of, any of the Company's Common Stock other
than the Stock.
5. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Stock shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of General Counsel of the Company, dated the Closing Date, to the
effect that:
(i) the Company is a corporation duly organized and validly
existing and in good standing under the laws of Missouri and has due
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus and is duly qualified to
conduct the businesses in which it is engaged in those States in which
it is required to be so qualified;
(ii) each significant subsidiary Company within the meaning of
Rule 1-02 of Regulation S-X under the Exchange Act (a "Subsidiary") is
a corporation duly organized and validly existing and in good standing
under its jurisdiction of incorporation and has due corporate power
and authority to own its properties and
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conduct its business as described in the Final Prospectus and is duly
qualified to conduct the business in which it is engaged in those
states in which it is required to be so qualified;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus;
(iv) the Stock has been duly and validly authorized, and, when
issued and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be validly issued, fully paid and nonassessable;
and the certific ates for the Stock are in valid and sufficient form;
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing
any legal proceedings or material contracts or agreements relating to
the Company or any of its Subsidiaries fairly summarize such matters;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus, including the documents deemed to
be incorporated by reference therein, (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that at the Effective Date the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that at the time first filed pursuant to Rule 424(b) and at the
Closing Date the Final Prospectus included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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(vii) the Company has full power and authority to execute this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Company ;
(viii) the Commission has duly authorized the issue and sale of
the Stock under the Public Utility Holding company Act of 1935, as
amended (the "1935 Act"); such authorization is sufficient for the
issue and sale of the Stock and is in full force and effect; no other
approval or consent of or filing with any other governmental body
(other than in connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which such
counsel expresses no opinion), is legally required in connection with
the execution and delivery of this Agreement or the authorization,
issuance and sale of the Stock;
(ix) the execution and delivery of this Agreement and the
issuance and sale of the Stock, and the fulfillment of the terms
hereof and thereof by the Company, will not result in a breach of any
of the terms or provisions of, or constitute a default under any
provision of the articles of incorporation or by-laws of the Company
or any of its Subsidiaries or any indenture, mortgage, deed of trust
or other agreement or instrument, of which such counsel has knowledge,
to which the Company or any of its Subsidiaries is now a party or, to
the best of such counsel's knowledge, any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their respective
activities or properties;
(x) the Stock and the provisions of the Company's articles of
incorporation, as amended, conform in all material respects as to
legal matters to the statements concerning them contained in the Final
Prospectus under ["Description of New Common Stock" and "Description
of Offered Securities"];
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; no
shareholders of the Company are entitled to preemptive or other
similar rights to subscribe for the Stock; and no vote or other
authorization of any shareholders of the Company is required to permit
the issuance and sale of the Stock; and
(xii) the franchises, permits and licenses under which the
Company and its Subsidiaries operates in the States of Missouri,
Illinois and Iowa are adequate to permit the Company and its
Subsidiaries to engage in the businesses which they presently conduct
in those States and do not contain any unduly burdensome provisions;
in those municipalities where the utility Subsidiaries of the Company
operate without franchises or where expired franchises have not been
renewed, the lack of such franchises does not materially affect such
Subsidiaries' operations in such municipalities and no actions or
proceedings are pending or, to such counsel's knowledge, threatened by
such municipalities which would materially affect such Subsidiaries'
operations in such municipalities.
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Such opinion shall also state that such counsel has no knowledge of any
litigation, pending or threatened, which challenges the validity of the Stock or
this Agreement, or which seeks to enjoin the performance of the Company's
obligations thereunder or which might have a material adverse effect on the
business, properties or financial condition of the Company or any of its
Subsidiaries except as disclosed in or contemplated by the Final Prospectus.
In rendering such opinion, such counsel may rely as to factual matters upon
certificates or written statements from others or other appropriate
representatives of the Company or upon certificates of public officials. In
such opinion, such counsel may state that while such counsel has examined the
Registration Statement and the Final Prospectus, such counsel necessarily
assumes the correctness and completeness of the statements made and information
included therein and takes no responsibility therefor, except insofar as such
statements relate to him and as set forth in paragraph (x) above.
Such counsel's opinion may further state that it is addressed to the
Underwriters and is rendered solely for their benefit and may not be relied upon
in any manner by any other person (other than Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ to the extent stated in its opinion to the Underwriters as of the
Closing Date) without such counsel's prior written consent.
(c) The Representatives shall have received from Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Stock, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the respective dates as of which information is given
in the Registration Statement, there has not been any material adverse
change in the condition, financial or otherwise, of the Company and
its subsidiaries considered as one enterprise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
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in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(e) At the Closing Date, Price Waterhouse shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion, the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and principal committees of the Company; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company as to transactions
and events subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final Prospectus do
not comply in form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange Act;
and said unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the Final
Prospectus;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule information),
audited or unaudited, in or incorporated in the Registration Statement
and the Final Prospectus, there were any changes, at a specified date
not more than five business days prior to the date of the letter, in
the capital stock or the long-term debt of the Company as compared
with the amounts shown in the most recent financial statements
included or incorporated in the Registration Statement and the Final
Prospectus except in all instances changes which the Registration
Statement discloses have occurred or may occur or as may result from
the
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retirement of preferred stock to satisfy a mandatory sinking fund
requirement and the issuance of common stock pursuant to the Company's
Employee Stock Ownership Plan, or for the twelve-month period ended
not more than five days prior to the date hereof there were any
decreases in excess of 3%, as compared with the comparable information
for the twelve months ended as of the date of the most recent
financial statements referred to above, in consolidated operating
revenues, operating income, net income, earnings on common stock or
earnings per share of common stock, except in all instances for
decreases which the Registration Statement discloses have occurred or
may occur, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration Statement and
the Final Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final Prospectus;
and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement and the Final Prospectus, including the
information included or incorporated in the Company's Annual Report on
Form 10-K, incorporated in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, at the Execution Time, Price Waterhouse shall have furnished
to the Representatives a letter or letters, dated as of the Execution Time, in
form and substance satisfactory to the Representatives, to the effect set forth
above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 5 which is, in
the judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the Stock
as contemplated by the
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Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's securities by any "nationally
recognized statistical rating organization" (as defined for purpose of Rule
436(g) under the Act) or any notice given of any intended or potential decrease
in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) The issuance and sale of the Stock as contemplated in this
Agreement and in the Final Prospectus shall have been duly authorized and
approved by order of the Commission under the 1935 Act, and such order shall be
in full force and effect at the Closing Date, and no authorization or approval
of any other governmental regulatory authority shall be required in connection
with the authorization, issuance and sale of the Stock by the Company.
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Stock
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provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Stock.
7. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be
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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
or the Final 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, unless such
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 any Underwriter through the
Representatives expressly for use in the Registration Statement (or
any amendment thereto) or any Preliminary Prospectus or the Final
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever 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 of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by you) 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.
(b) 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 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section
7, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any Preliminary Prospectus or the Final 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 in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Final Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice 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 it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
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.
12
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsections (a)
or (b) of this Section 7 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and one or more of the Underwriters
in such proportions as will reflect the relative benefits from the offering of
the Stock received by the Company on the one hand and by the Underwriters on the
other hand, provided that if the Stock is offered by Underwriters at an initial
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act 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 the Act shall have the same rights to
contribution as the Company.
8. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the shares of the Stock agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of shares of the
Stock set forth opposite their names in Schedule II hereto bears to the
aggregate number of shares of the Stock set forth opposite the names of all the
remaining Underwriters) the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-----------------
that the aggregate number of shares of the Stock which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate number of shares of the Stock set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Stock, and if such nondefaulting
Underwriters do not purchase all of the Stock, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. The Representatives may terminate this Agreement
-----------
immediately upon notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the Execution Time or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, of
13
the Company and its subsidiaries considered as one enterprise, 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 or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Stock or to enforce contracts
for the sale of the Stock, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal,
Missouri or New York authorities.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and shall survive delivery of and payment for the Stock. The covenants set
forth in Section 4(c) and the provisions of Sections 6, 7 and 13 hereof and the
provisions of this Section 10 shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder shall be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed, to [Underwriter Representative Address]
--------------------------------------
, Attention: [Name & Title]; or, if sent to the Company, shall be mailed,
----------------
delivered or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel.
12. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the parties hereto 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 controlling persons and the directors and officers
referred to in Section 7, 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 being intended to be and being for the
sole and exclusive benefit of the parties hereto and their respective successors
and said controlling persons, directors and officers and for the benefit of no
other person, firm or corporation.
No purchaser of any Stock from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
13. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the several Underwriters.
Very truly yours,
AMEREN CORPORATION
By:_______________
Title:
CONFIRMED AND ACCEPTED
as of the date first above written.
[Underwriter Representatives]
By: [Underwriter Representative]
_______________________________________
By:
Title:
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing Agreement.
15
SCHEDULE I
Underwriting Agreement dated ___________, 199__
Registration Statement No. _________________
Representatives: [Underwriter Representatives]
Title: Common Stock, Par Value $.01 Per Share
Number of Shares: _____________
Purchase Price to the Company: $_______ per share
Underwriting commission: $_______ per share
Closing Date, Time and Location: 10:00 A.M., New York City time, on
____________, 199__, at the offices of
______________________________________
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Date referred to in Section 4(f) after which the Company may offer or sell by
public offering its Common Stock other than the Stock without the consent of
the Representatives: _____________, 199__
SCHEDULE II
Number
Underwriters of Shares
------------ to be Purchased
---------------
Total