Exhibit 1.4
AMEREN CORPORATION
12,000,000
9.75% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
UNDERWRITING AGREEMENT
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February 26, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ameren Corporation, a Missouri corporation (the COMPANY), hereby
confirms its agreement with you, as underwriters (the UNDERWRITERS), with
respect to the issuance and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
9.75% Adjustable Conversion-Rate Equity Security Units of the Company (the
EQUITY UNITS), set forth in Schedule I attached hereto, and with respect to the
grant by the Company to the Underwriters, acting severally and not jointly, of
the option described in Section 1(b) hereof to purchase all or any part of
1,800,000 additional Equity Units. The aforesaid 12,000,000 Equity Units (the
INITIAL SECURITIES) to be purchased by the Underwriters and all or any part of
the 1,800,000 Equity Units subject to the option described in Section 1(b)
hereof (the OPTION SECURITIES) are hereinafter called, collectively, the
SECURITIES.
Each Equity Unit will have a stated amount of $25 and will initially be
comprised of (a) a purchase contract (a PURCHASE CONTRACT) under which the
holder will purchase from the Company on May 15, 2005 a number of shares (the
ISSUABLE COMMON STOCK) of common stock, par value $.01 per share, of the Company
(the COMMON STOCK) equal to the Settlement Rate as set forth in the Purchase
Contract Agreement (each as defined herein) and (b) beneficial ownership of a
Note due May 15, 2007 (the SENIOR NOTES) of the Company, having a principal
amount of $25.
In accordance with the terms of the Purchase Contract Agreement to be
dated as of March 1, 2002 (the PURCHASE CONTRACT AGREEMENT), between the Company
and The Bank of New York, as purchase contract agent (the PURCHASE CONTRACT
AGENT), the Senior Notes constituting a part of the Equity Units will be pledged
by the Purchase Contract Agent, on behalf of the holders of the Equity Units, to
BNY Trust Company of Missouri, as collateral agent (the COLLATERAL AGENT) for
the benefit of the Company, pursuant to the Pledge Agreement, to be dated as of
March 1, 2002 (the PLEDGE AGREEMENT), among the Company, the Purchase Contract
Agent, the Collateral Agent and BNY Trust Company of Missouri, as custodial
agent (the CUSTODIAL AGENT) and securities intermediary (the SECURITIES
INTERMEDIARY), to secure the holders' obligation to purchase the Issuable Common
Stock under the Purchase Contracts. The rights and obligations of a holder of
Securities in respect of Senior Notes (subject to the pledge thereof) and
Purchase Contracts will initially be evidenced by a Normal Units Certificate (as
defined in the Purchase Contract Agreement).
The Senior Notes will be issued pursuant to an Indenture, dated as of
December 1, 2001 (including the terms of the Senior Notes to be established
pursuant thereto, the INDENTURE), between the Company and The Bank of New York,
as trustee (the TRUSTEE).
Pursuant to a Remarketing Agreement (the REMARKETING AGREEMENT)
described in the Prospectus (as defined herein) and to be entered into among the
Company, the Purchase Contract Agent and a financial institution to be selected
by the Company to act each as the reset agent and a remarketing agent (together
the REMARKETING AGENT), the Senior Notes or other Pledged Securities (as defined
herein) will be remarketed, subject to certain terms and conditions.
As used in this Agreement, "Transaction Documents" shall mean,
collectively, the Purchase Contract Agreement, the Indenture, the Remarketing
Agreement and the Pledge Agreement.
1. Purchase and Sale.
(a) Initial Securities. Upon 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 and each Underwriter
agrees, at the time and place herein specified, to purchase from the Company,
severally and jointly, at the purchase price per Initial Security set forth in
Schedule II attached hereto, the number of Initial Securities set forth in
Schedule I opposite the name of such Underwriter.
(b) Option 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
1,800,000 Equity Units at the purchase price per Option Security set forth in
Schedule II. The option hereby granted will expire 13 days after the date hereof
and may be exercised in whole or in part, from time to time, for the sole
purpose of covering sales of Securities in excess of the aggregate number of
Initial Securities, upon written notice by the Underwriters to the Company on
any business day during such 13-day period setting forth the number of Option
Securities as to which the several Underwriters are exercising the option and
the time and date of payment and delivery for such Option Securities. Any such
time and date of delivery (each, a DATE OF DELIVERY) shall be determined by the
Underwriters, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Date (as defined
herein). If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Securities set forth in Schedule I
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Underwriters in
their discretion shall make to eliminate any sales or purchases of fractional
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shares. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. (the NYSE) is open for bidding.
2. Representations and Warranties of Company. The Company represents
and warrants to the several Underwriters as of the date hereof, as of the
Closing Date referred to in Section 3(b) hereof and as of each Date of Delivery,
if any, referred to in Section 1(b) hereof, and covenants and agrees with the
several Underwriters that:
(a) Filing of Registration Statement and any Preliminary
Prospectus with SEC. The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the 1933 ACT), and has filed with
the Securities and Exchange Commission (the SEC) the Registration Statement (as
defined below) and each Preliminary Prospectus (as defined below) relating to
the Securities and the Issuable Common Stock, if any, required to be filed
pursuant to Rule 424 under the 1933 Act; and the Registration Statement has been
declared effective by the SEC under the 1933 Act and meets the requirements set
forth in paragraph (a)(1)(ix) or (a)(1)(x) of Rule 415 under the 1933 Act and
complies in all other material respects with such Rule 415. No stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued under the 1933 Act and no proceedings for that purpose have been
instituted or threatened by the SEC, and any request on the part of the SEC for
additional information has been complied with by the Company. For purposes of
this Agreement, the following terms used herein shall have the following
meanings: (i) REGISTRATION STATEMENT shall mean the registration statement on
Form S-3 (No. 333-81774) filed by the Company with the SEC for the registration
under the 1933 Act of, among other securities, certain securities of the
Company, including the Securities and the Issuable Common Stock, as amended and
supplemented to the date of this Agreement and including the exhibits thereto,
and shall be deemed to include the Incorporated Documents (as defined below);
(ii) INCORPORATED Documents shall mean the documents filed by the Company with
the SEC under the Securities Exchange Act of 1934, as amended (the 1934 ACT),
that are, or are deemed to be, incorporated by reference in the Preliminary
Prospectus or the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act;
(iii) PRELIMINARY PROSPECTUS shall mean (A) any prospectus included in the
Registration Statement prior to the initial Effective Date (as defined below),
or (B) any supplement to the prospectus included in the Registration Statement
at the initial Effective Date, as such prospectus may be amended or supplemented
as of the date thereof, used in connection with the offering and sale of the
Securities and the Issuable Common Stock (other than making confirmations of
sales of the Securities) filed with the SEC pursuant to Rule 424 under the 1933
Act, and shall in each case be deemed to include the Incorporated Documents; and
(iv) EFFECTIVE DATE shall mean the later of (x) the date or time that the
Registration Statement or any post-effective amendment thereto was declared
effective by the SEC under the 1933 Act and (y) the date that the Company's most
recent Annual Report on Form 10-K was filed with the SEC under the 1934 Act. For
purposes of this Agreement, the words "amend," "amendment," "amended,"
"supplement" or "supplemented" with respect to the Registration Statement or the
Prospectus shall mean (i) amendments or supplements to the Registration
Statement or the Prospectus and (ii) Incorporated Documents, in each case filed
with the SEC or sent to prospective purchasers of the Securities after the date
of this Agreement and prior to the completion of the distribution of the
Securities and the Issuable Common Stock; provided, however, that any supplement
to the prospectus included in the Registration Statement at the initial
Effective Date, as such prospectus may be amended or supplemented, filed with
the SEC pursuant to Rule 424(b) under the 1933 Act with respect to an offering
of securities of the Company other than the Securities and the Issuable Common
Stock shall not be deemed to be a supplement to, or a part of, the Prospectus.
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(b) Registration Statement; Prospectus; Incorporated
Documents. (i) The Registration Statement, at the Effective Date, any
Preliminary Prospectus, when delivered to you for your use in marketing the
Securities and the Issuable Common Stock, and the Prospectus, at the time it is
filed with the SEC pursuant to Rule 424(b) under the 1933 Act and when delivered
to you for your use in making confirmations of sales of the Securities, complied
and will comply, as the case may be, in all material respects with the
applicable requirements of the 1933 Act, the Trust Indenture Act of 1939, as
amended (the 1939 ACT), and, in each case, the rules and regulations of the SEC
thereunder; (ii) the Registration Statement, at the Effective Date, did not
include 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; (iii) the Prospectus, at the time it is filed with the SEC pursuant
to Rule 424(b) under the 1933 Act, when delivered to you for your use in making
confirmations of sales of the Securities and at the Closing Date (and, if any
Option Securities are purchased, at each Date of Delivery), will not and any
Preliminary Prospectus, when delivered to you for your use in marketing the
Securities and the Issuable Common Stock, did 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; and (iv) each Incorporated Document, at the time it was or
is filed with the SEC, or at the time it became or becomes effective, pursuant
to the 1934 Act, complied and will comply, as the case may be, in all material
respects with the applicable requirements of the 1934 Act and the rules and
regulations of the SEC thereunder and, at such times, did not contain and will
not contain, as the case may be, an untrue statement of a material fact and did
not omit and will not 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, in the case of clauses (i), (ii)
and (iii) above, the Company makes no representation or warranty as to
information you furnish in writing to the Company expressly for use in the
Prospectus, which for purposes of this Agreement shall be deemed to consist
solely of the statements in the fifth paragraph, concerning the terms of the
offering by the Underwriters, the second sentence of the sixth paragraph, the
eighth, ninth and tenth paragraphs, concerning over-allotment and stabilizing
transactions by the Underwriters, and the twelfth paragraph in each case, under
the caption "Underwriting" in the Prospectus (collectively, the UNDERWRITER
INFORMATION). For purposes of this Agreement, PROSPECTUS shall mean the
prospectus included in the Registration Statement at the initial Effective Date,
as such prospectus may be amended or supplemented (including by Incorporated
Documents) as of the date hereof, including by a supplement thereto specifying
the terms of the Securities and the Issuable Common Stock and the plan of
distribution thereof (the PROSPECTUS SUPPLEMENT), as first filed with the SEC
pursuant to Rule 424(b) under the 1933 Act.
(c) Securities. The Securities have been duly authorized by
the Company, and when authenticated (as applicable), issued and delivered in the
manner provided in the relevant Transaction Document and delivered against
payment of the purchase price therefor as provided herein, will constitute valid
and binding obligations of the Company enforceable in accordance with their
respective terms, except as may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws relating to or
affecting creditors' rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) requirements
of reasonableness, good faith and fair dealing (such exceptions, collectively,
the EXCEPTIONS); and the Securities and the Issuable Common Stock will conform
in all material respects to the descriptions thereof in the Prospectus.
(d) Transaction Documents. At the Closing Date and each Date
of Delivery, each of the Transaction Documents will have been duly authorized
and, except for the Remarketing Agreement, executed and delivered by the
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Company, and, assuming due authorization, execution and delivery by the other
parties thereto, will, except for the Remarketing Agreement, constitute a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by the Exceptions; each of
the Indenture and the Purchase Contract Agreement has been duly qualified under
the 1939 Act; and each of the Transaction Documents will conform in all material
respects to the description thereof contained in the Prospectus.
(e) Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(f) Due Incorporation and Qualification of the Company. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Missouri, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and to enter and to perform its obligations under,
or as contemplated by, this Agreement and the Transaction Documents; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing would not
reasonably be expected to have a material adverse effect on the general affairs,
business prospects, management, financial position, stockholders' equity or
consolidated results of operations of the Company and its subsidiaries, taken as
a whole (a MATERIAL ADVERSE EFFECT).
(g) Due Incorporation and Qualification of Subsidiaries. Each
significant subsidiary (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) of the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; each such subsidiary is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except to the extent that the failure to
be so qualified or to be in good standing would not reasonably be expected to
have a Material Adverse Effect; and all of the issued and outstanding common
stock of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable, and all of such common stock (except
with regard to 40% of the common stock of Electric Energy, Inc.) is owned by the
Company, directly or indirectly, free from liens, encumbrances and defects of
title.
(h) Material Changes. Neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited consolidated
financial statements incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as described in
the Prospectus; and, since the respective dates as of which information is given
in the Prospectus, (i) neither the Company nor any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that are material to
the Company and its subsidiaries, taken as a whole, and (ii) there has not been
any change in the stockholders' equity (except for regular quarterly dividends,
retained earnings and newly issued shares issued pursuant to the Company's
dividend reinvestment and stock purchase plan and the Company's 401(k) plans) or
long-term debt (other than the repayment of current maturities of long-term
debt) of the Company or any material adverse change, or any development
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involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or consolidated
results of operations of the Company and its subsidiaries, taken as a whole, in
each case, otherwise than as described in the Prospectus.
(i) No Conflicts; 1935 Act Order in Full Force and Effect; No
Other Consents Required. The issue and sale of the Securities and the Issuable
Common Stock by the Company, and the compliance by the Company with all of the
provisions of the Securities, the Transaction Documents and this Agreement, and
the consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or (with the giving of notice or lapse of time or both)
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, which would reasonably be expected to have a Material
Adverse Effect, nor will such action result in any violation of the provisions
of the articles of incorporation or by-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; the execution, delivery
and performance of the Transaction Documents and this Agreement will not require
the approval or consent of any holder or trustee of any debt or other
obligations or securities of the Company which will not have been obtained; the
SEC has issued its final order under the Public Utility Holding Company Act of
1935, as amended (the 1935 ACT ORDER), authorizing the issuance and sale of the
Securities and the Issuable Common Stock by the Company; the 1935 Act Order is
in full force and effect and is sufficient to authorize the transactions
contemplated by the Transaction Documents and this Agreement; no other consent,
approval, authorization, order, registration, filing or qualification of or with
any court or governmental agency or body is required for the issue and sale of
the Securities and the Issuable Common Stock by the Company or the consummation
by the Company of the transactions contemplated by this Agreement or the
Transaction Documents, except such as have been obtained under the 1933 Act, the
1934 Act and the 1939 Act, such as will be obtained under the 1934 Act and such
consents, approvals, authorizations, orders, registrations, filings or
qualifications as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters and the Issuable Common Stock.
(j) Capital Stock. The Company has an authorized
capitalization as set forth in the Prospectus and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; and the shares of Issuable Common Stock
have been duly and validly authorized and reserved for issuance by the Company
and, when issued and delivered in accordance with the provisions of the
Transaction Documents, will be duly and validly issued, fully paid and
non-assessable and will conform in all material respects to the description of
the Common Stock contained in the Prospectus and the issuance of the Issuable
Common Stock will not be subject to any preemptive or other similar right.
(k) Pledge Agreement. The Pledge Agreement will create, as
collateral security for the performance when due by the holders from time to
time of the Securities of their respective obligations under the Purchase
Contracts, a valid security interest (as defined in the Uniform Commercial Code,
as adopted and in effect in the State of New York (the NEW YORK UCC)) in favor
of the Collateral Agent for the benefit of the Company, in the right, title and
interest of such holders in the securities and other assets and interests
pledged to the Collateral Agent pursuant to the Pledge Agreement (the PLEDGED
SECURITIES).
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(l) No Defaults. Neither the Company nor any of its
subsidiaries is (i) in violation of its articles of incorporation or by-laws,
(ii) to the best knowledge of the Company, after due inquiry, in violation of
any law, ordinance, administrative or governmental rule or regulation, the
violation of which would reasonably be expected to have a Material Adverse
Effect, or of any decree of any court or governmental agency or body having
jurisdiction over the Company or such subsidiaries, or (iii) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, which default would reasonably be expected to have
a Material Adverse Effect.
(m) Litigation. Other than as described in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject that, if determined adversely to the
Company or that subsidiary, would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, and, to the Company's knowledge, no
such proceedings are threatened by governmental authorities or others.
(n) Financial Statements. The consolidated financial
statements of the Company incorporated by reference in the Registration
Statement and the Prospectus have been prepared in conformity with generally
accepted accounting principles in the United States and fairly present the
financial position of the Company as of the dates set forth therein.
(o) Independent Public Accountants. PricewaterhouseCoopers LLP
(the ACCOUNTANTS), who have audited certain financial statements of the Company
and its subsidiaries, are independent public accountants as required by the 1933
Act and the rules and regulations of the SEC thereunder.
(p) Investment Company Act. The Company is not, and, after
giving effect to the offering and sale of the Securities, the Company will not
be, an "investment company," or an entity "controlled" by an investment company,
as such terms are defined in the Investment Company Act of 1940, as amended.
(q) Environmental Matters. Except as described in the
Prospectus, each of the Company and its subsidiaries (i) is in compliance with
any and all applicable federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (ENVIRONMENTAL LAWS), (ii) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in compliance
with all terms and conditions of any such permit, license or approval, except
where such non-compliance with Environmental Laws or failure to receive, or
comply with the terms and conditions of required permits, licenses or approvals,
would not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r) Accounting Controls. The Company and its subsidiaries
maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
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compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
3. Offering; Payment and Delivery of Securities.
(a) Offering. The Underwriters have advised the Company that
they propose to make a public offering of the Securities as soon after the
effectiveness of this Agreement as in their judgment is advisable. The
Underwriters have further advised the Company that they will offer the
Securities to the public at the initial public offering price per Security set
forth in Schedule II. The Underwriters agree to pledge, through the Purchase
Contract Agent, to the Collateral Agent, on behalf of the initial purchasers of
the Securities, the Senior Notes underlying the Securities with respect to which
the Company and the Underwriters have entered into Purchase Contracts. Such
pledge shall be effected by the delivery to the Collateral Agent, through the
Purchase Contract Agent, of the Senior Notes to be pledged at the Closing Date
or any Date of Delivery in accordance with the Pledge Agreement.
(b) Payment and Delivery of Securities. Payment of the
purchase price for, and delivery of certificates for, the Initial Securities
shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York, or
at such other place as shall be agreed upon by the Underwriters and the Company,
at 9:00 a.m. (New York City time) on the third business day after the date
hereof, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called the CLOSING DATE).
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriters and
the Company, on each Date of Delivery as specified in the written notice from
the Underwriters to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇, Sachs & Co. for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them in book-entry form
through the facilities of The Depository Trust Company (DTC). It is understood
that each Underwriter has authorized ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. to execute this
Agreement on its behalf and, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial Securities and the
Option Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇, Sachs &
Co., individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial
Securities or the Option Securities, if any, to be purchased by any Underwriter
whose funds have not been received by the Closing Date or any Date of Delivery,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
The Securities to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Securities in book-entry form,
which will be deposited by or on behalf of the Company with DTC or its
designated custodian. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriters in New York City not later than 10:00 a.m. (New York City time) on
the business day prior to the Closing Date or any Date of Delivery, as the case
may be.
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4. Covenants of Company. The Company covenants and agrees with the
several Underwriters that:
(a) Filing of Prospectus. The Company will promptly transmit
copies of the Prospectus, and any amendments or supplements thereto, in a form
approved by the Underwriters, to the SEC for filing pursuant to Rule 424(b)
under the 1933 Act.
(b) Copies of Registration Statement and Prospectus; Notice of
Stop Orders. The Company will deliver to the Underwriters and to Pillsbury
Winthrop LLP (UNDERWRITERS' COUNSEL) (i) one conformed copy of the Registration
Statement as originally filed, including copies of exhibits thereto (other than
any exhibits incorporated by reference therein), (ii) conformed copies of any
amendments and supplements to the Registration Statement, including copies of
the Incorporated Documents (other than exhibits thereto), and (iii) a conformed
copy of each consent and certificate included or incorporated by reference in,
or filed as an exhibit to, the Registration Statement as so amended and
supplemented; prior to 10:00 a.m., New York City time, on the business day next
succeeding the date of this Agreement and from time to time as soon as
practicable thereafter, the Company will deliver to the Underwriters as many
copies of the Prospectus as amended or supplemented as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act; the Company
will promptly advise the Underwriters of the issuance of any stop order under
the 1933 Act with respect to the Registration Statement (as amended or
supplemented) or the institution of any proceedings therefor, or the suspension
of the qualification of the Securities or the Issuable Common Stock for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, of which the Company shall have received notice or otherwise have
knowledge prior to the completion of the distribution of the Securities and the
Issuable Common Stock; and the Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to secure the prompt removal
thereof.
(c) Filing of Amendments or Supplements. During the period
when a prospectus relating to any of the Securities or the Issuable Common Stock
is required to be delivered under the 1933 Act by any Underwriter or any dealer,
the Company will not file any amendment or supplement to the Registration
Statement, the Prospectus (or any other prospectus relating to the Securities or
the Issuable Common Stock filed pursuant to Rule 424(b) under the 1933 Act that
differs from the Prospectus as filed pursuant to such Rule 424(b)) or any
Incorporated Document to which the Underwriters or Underwriters' Counsel shall
object.
(d) Compliance with 1933 Act. During the period when a
prospectus relating to any of the Securities or the Issuable Common Stock is
required to be delivered under the 1933 Act by any Underwriter or any dealer,
the Company will comply, at its own expense, with all requirements imposed by
the 1933 Act, as now and hereafter amended, and by the rules and regulations of
the SEC thereunder, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealing in the Securities and the Issuable Common
Stock during such period in accordance with the provisions hereof and as
contemplated by the Prospectus.
(e) Certain Events and Amendments or Supplements. If, during
the period when a prospectus relating to any of the Securities or the Issuable
Common Stock is required to be delivered under the 1933 Act by any Underwriter
or any dealer, (i) any event relating to or affecting the Company or of which
the Underwriters shall advise the Company in writing shall occur as a result of
which, in the opinion of the Underwriters or in the opinion of the Company, the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
9
statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) it shall be necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the 1933 Act, the 1934
Act or the 1939 Act or the rules and regulations of the SEC thereunder, the
Company will forthwith at its expense prepare and furnish to the Underwriters a
reasonable number of copies of such amendment or supplement that will correct
such statement or omission or effect such compliance. Neither the Underwriters'
consent to, nor the Underwriters' delivery of, any such amendment or supplement
prior to the Closing Date shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(f) Blue Sky Qualifications. During the period when a
prospectus relating to any of the Securities or the Issuable Common Stock is
required to be delivered under the 1933 Act by any Underwriter or any dealer,
the Company will furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Securities and the Issuable Common Stock
for offer and sale under the securities or blue sky laws of such jurisdictions
as the Underwriters may reasonably designate and will file and make in each year
such statements or reports as are or may be reasonably required by the laws of
such jurisdictions; provided, however, that the Company shall not be required to
qualify as a foreign corporation, qualify as a dealer in securities or file a
general consent to service of process under the laws of any jurisdiction.
(g) Earning Statement. In accordance with Rule 158 under the
1933 Act, the Company will make generally available to its security holders and
to holders of the Securities, as soon as practicable, an earning statement
(which need not be audited) in reasonable detail covering the 12 months
beginning not later than the first day of the month next succeeding the month in
which occurred the effective date (within the meaning of Rule 158 under the ▇▇▇▇
▇▇▇) of the Registration Statement.
(h) Exchange Act Documents; Ratings Notification. During the
period when a prospectus relating to any of the Securities or the Issuable
Common Stock is required to be delivered under the 1933 Act by any Underwriter
or any dealer, the Company will file promptly all documents required to be filed
with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act; and
the Company will promptly notify the Underwriters of any written notice given to
the Company by any "nationally recognized statistical rating organization"
within the meaning of Rule 436(g)(2) under the 1933 Act (a RATING AGENCY) of any
intended decrease in any rating of any securities of the Company or of any
intended change in any such rating that does not indicate the direction of the
possible change of any such rating, in each case by any such Rating Agency.
(i) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the prior
written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., 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
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock 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, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the Securities
and the Issuable Common Stock, (B) any shares of Common Stock issued by the
10
Company upon the exercise of an option or warrant or the conversion or exchange
of a security outstanding on the date hereof, (C) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company, (D) any shares of Common Stock issued pursuant to
any nonemployee director stock plan or dividend reinvestment and stock
repurchase plan in effect on the date of the filing of the Registration
Statement or (E) the issuance and sale by the Company of up to 5,750,000 shares
of Common Stock pursuant to an underwriting agreement between the Company and
the Underwriters named therein.
(j) Payment of Expenses. Whether or not any sale of the
Securities is consummated, the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of counsel for the Company
and the Accountants in connection with the registration of the Securities and
the Issuable Common Stock under the 1933 Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments or
supplements thereto and the mailing and delivering of copies thereof to you and
any dealers; (ii) the cost of printing or producing this Agreement and the
Transaction Documents, any blue sky memorandum, closing documents (including any
compilations thereof) and other documents in connection with the offering,
purchase, sale and delivery of the Securities and the Issuable Common Stock;
(iii) all expenses (not to exceed $5,000) in connection with the qualification
of the Securities and the Issuable Common Stock for offering and sale under
state securities laws as provided in Section 4(f) hereof, including the fees and
disbursements of Underwriters' Counsel in connection with such qualification and
in connection with any such blue sky memorandum; (iv) the fees and expenses
incurred in connection with the listing of the Securities and the Issuable
Common Stock on the NYSE; (v) the cost of preparing the Securities and the
Issuable Common Stock; (vi) the fees and disbursements of the Trustee, the
Purchase Contract Agent, the Collateral Agent and the Remarketing Agent, any
agent thereof and the fees and expenses of counsel thereof; (vii) any fees
charged by securities ratings services for rating the Securities; and (viii) all
other costs and expenses incident to the performance of the Company's
obligations hereunder that are not otherwise specifically provided for in this
Section 4(j); but, if for any reason the Securities are not delivered by or on
behalf of the Company as provided herein (other than due to a default by the
Underwriters), the Company will reimburse the Underwriters for all out-of-pocket
expenses, including fees and disbursements of Underwriters' Counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Securities, but the Company shall then be under no further
liability to the Underwriters with respect to the Securities except as provided
in this Section 4(j) and Section 6 hereof. It is understood that, except as
provided in this Section 4(j) and Section 6 hereof, the Underwriters will pay
all of their own costs and expenses, including the fees of Underwriters' Counsel
and any advertising expenses in connection with any offers the Underwriters may
make.
(k) Listing. The Company will use its best efforts to effect
the listing of the Securities (or the "normal units" as referred to in the
Prospectus) and the Issuable Common Stock on the NYSE.
(l) Use of Proceeds. The Company will use the net proceeds
from the issuance and sale of the Securities in the manner described in the
Prospectus under "Use of Proceeds".
(m) Issuable Common Stock. The Company will reserve and keep
available at all times, free of preemptive rights, a sufficient number of shares
of Issuable Common Stock for the purpose of enabling the Company to satisfy any
11
obligations to issue shares of its Issuable Common Stock pursuant to the
Purchase Contracts.
(n) Electronic Version of Company Logos. The Company will,
upon request of any Underwriter, furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company's trademarks, servicemarks and
corporate logo for use on the website, if any, operated by such Underwriter for
the purpose of facilitating the on-line offering of the Securities (the
LICENSE); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or
transferred.
5. Conditions to Underwriter's Obligations. The obligations of the
several Underwriters under this Agreement shall be subject to the condition that
all representations and warranties of the Company contained in this Agreement
are, at and as of the Closing Date, true and correct, the condition that the
Company shall have performed all of its obligations hereunder on or prior to the
Closing Date and the following additional conditions:
(a) Filing of Prospectus with SEC; No Stop Order; 1935 Act
Order in Full Force and Effect. The Prospectus, and any supplements thereto,
shall have been filed with the SEC within the time period prescribed for such
filing by Rule 424(b) under the 1933 Act and in accordance with Section 4(a)
hereof; all requests for additional information on the part of the SEC shall
have been complied with to the reasonable satisfaction of the Underwriters; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the SEC; and the 1935 Act Order shall be in
full force and effect and sufficient to authorize the transactions contemplated
by this Agreement and the Transaction Documents.
(b) Opinion of Underwriters' Counsel. At the Closing Date,
Underwriters' Counsel shall have furnished to you an opinion, dated the Closing
Date, with respect to the validity of the Securities, the Prospectus and the
Registration Statement and such other related matters as you may reasonably
request, and Underwriters' Counsel shall have received such documents and
information as it may reasonably request to enable it to pass upon such matters.
In rendering such opinion, such counsel (A) may rely as to matters involving the
application of the laws of the State of Missouri upon the opinion of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Vice President, General Counsel and Secretary of the Company, rendered
pursuant to Section 5(c)(1) hereof and (B) may rely as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the Company
and public officials.
(c) Opinion of Company Counsel. (1) At the Closing Date,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, General Counsel and Secretary of the
Company, shall have furnished to you an opinion, dated the Closing Date, in form
and substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Missouri, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and
to enter and to perform its obligations under, or as contemplated by,
this Agreement and the Transaction Documents; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing
would not reasonably be expected to have a Material Adverse Effect;
12
(ii) each significant subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with all power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; each such subsidiary is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except to
the extent that the failure to be so qualified or to be in good
standing would not reasonably be expected to have a Material Adverse
Effect; and all of the issued and outstanding common stock of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable, and all of such common stock
(except with regard to 40% of the common stock of Electric Energy,
Inc.) is owned by the Company, directly or indirectly, free from liens,
encumbrances and defects of title;
(iii) other than as described in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or such subsidiaries is the subject which, if determined adversely to
the Company or such subsidiaries, would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect; to
such counsel's knowledge, no such proceedings are threatened by
governmental authorities or others; and the statements included or
incorporated by reference in the Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company
or any of its subsidiaries fairly summarize such matters;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Company has an authorized capitalization as set forth
in the Prospectus; the shares of Issuable Common Stock have been duly
and validly authorized and reserved for issuance by the Company and,
when issued and delivered in accordance with the provisions of the
Ancillary Agreements (as defined below) against payment of the purchase
price therefor, will be duly and validly issued and fully paid and
non-assessable; and the issuance of the Issuable Common Stock will not
be subject to any preemptive or other similar right;
(vi) the Equity Units and the Senior Notes have been duly
authorized, executed and delivered by the Company; and, assuming due
payment by the Underwriters in accordance with the terms of this
Agreement, the Equity Units, the Senior Notes and the Purchase
Contracts will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their respective
terms, except as may be limited by the Exceptions, and the Purchase
Contracts will be entitled to the benefits provided by the Purchase
Contract Agreement and the Senior Notes will be entitled to the
benefits provided by the Indenture;
(vii) each of the Purchase Contract Agreement, the Indenture
and the Pledge Agreement (the "Ancillary Agreements") has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding instrument, enforceable against the Company in
accordance with its terms, except as may be limited by the Exceptions;
each of the Indenture and the Purchase Contract Agreement has been duly
qualified under the 1939 Act;
13
(viii) the issue and sale of the Securities and the Issuable
Common Stock by the Company, and the compliance by the Company with all
of the provisions of the Securities, the Ancillary Agreements and this
Agreement, and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, which would reasonably be expected to have a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the articles of incorporation or by-laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and the execution, delivery
and performance of the Ancillary Agreements and this Agreement will not
require the approval or consent of any holder or trustee of any debt or
other obligations or securities of the Company which will not have been
obtained;
(ix) the Company is not, and, after giving effect to the
offering and sale of the Securities, the Company will not be, an
"investment company," or an entity "controlled" by an investment
company, as such terms are defined in the Investment Company Act of
1940, as amended;
(x) the SEC has issued the 1935 Act Order authorizing the
issuance and sale of the Securities and the Issuable Common Stock by
the Company; the 1935 Act Order is in full force and effect and is
sufficient to authorize the transactions contemplated by the Ancillary
Agreements and this Agreement; and no other consent, approval,
authorization, order, registration, filing or qualification of or with
any court or governmental agency or body is required for the issue and
sale of the Securities and the Issuable Common Stock by the Company, or
the consummation by the Company of the transactions contemplated by the
Ancillary Agreements and this Agreement, except such as have been
obtained under the 1933 Act, the 1934 Act and the 1939 Act and such
consents, approvals, authorizations, orders, registrations, filings or
qualifications as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters and the Issuable Common Stock;
(xi) the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed with the SEC pursuant to Rule
424(b) under the 1933 Act (except in each case as to financial
statements and other financial data contained or incorporated by
reference therein, upon which such counsel need not pass), complied as
to form in all material respects with the requirements of the 1933 Act
and the 1939 Act and the respective rules and regulations of the SEC
thereunder; each Incorporated Document as originally filed pursuant to
the 1934 Act (except as to financial statements and other financial
14
data contained or incorporated by reference therein, upon which such
counsel need not pass) complied as to form when so filed in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the SEC thereunder; the Registration Statement has
become, and on the Closing Date is, effective under the 1933 Act and,
to the best of such counsel's knowledge, no proceedings for a stop
order with respect thereto are threatened or pending under Section 8 of
the 1933 Act; and nothing has come to the attention of such counsel
that has caused it to believe that the Registration Statement (except
as to financial statements and other financial data contained or
incorporated by reference therein, upon which such counsel need not
pass), at the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (except as to financial statements and other
financial data contained or incorporated by reference therein, upon
which such counsel need not pass), at the time it was filed with the
SEC pursuant to Rule 424(b) under the 1933 Act or on the Closing Date,
included or includes any 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; and
(xii) the statements set forth in the Prospectus under the
captions "Description of the Equity Security Units," Description of the
Senior Notes," "Description of Debt Securities" and "Description of
Common Stock," insofar as they purport to constitute a summary of the
terms of the Securities and the Issuable Common Stock, and under the
captions "Plan of Distribution" and "Underwriting," insofar as they
purport to summarize the provisions of the laws and documents referred
to therein, are accurate summaries in all material respects.
Such opinion shall also state that such counsel has no knowledge of any
litigation, pending or threatened, that challenges the validity of the
Securities, the Issuable Common Stock, the Ancillary Agreements or this
Agreement, or that seeks to enjoin the performance of the Company's obligations
hereunder or thereunder or that might reasonably be expected to have a Material
Adverse Effect except as described in the Prospectus.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials. 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 Underwriters' Counsel
and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP as to certain matters involving the application of
the laws of the State of Missouri in their respective opinions to the
Underwriters on the date of such opinions) without such counsel's prior written
consent.
(2) At the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special counsel to
the Company shall have furnished to you an opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect of clauses (iv), (v),
(vi), (vii), (ix), (x), (xi) (except for the second clause thereof) and (xii) of
subparagraph (1) of this Section 5(c). In addition, such counsel will confirm as
its opinion the statements under "U.S. Federal Income Tax Consequences" in the
Prospectus. In rendering such opinion, such counsel (A) may rely as to matters
involving the application of the laws of the State of Missouri upon the opinion
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, General Counsel and Secretary of the
Company, rendered pursuant to subparagraph (1) of this Section 5(c) and (B) may
rely as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
(d) Letters of Accountants. On the date of this Agreement, and
at the Closing Date, the Accountants shall have furnished to the Underwriters
letters, dated the date of this Agreement and the Closing Date, respectively, in
form and substance satisfactory to the Underwriters, confirming that they are
independent accountants within the meaning of the 1933 Act and the rules and
regulations of the SEC thereunder with respect to the Company and its
subsidiaries and stating in effect that:
15
(i) in the opinion of the Accountants, the consolidated
financial statements and schedules included or incorporated by
reference in the Prospectus and audited by them comply as to form in
all material respects with the applicable accounting requirements of
the 1933 Act and the 1934 Act and the respective rules and regulations
of the SEC thereunder; and
(ii) on the basis of a reading of the unaudited consolidated
financial statements included or incorporated by reference in the
Prospectus and the latest available interim unaudited consolidated
financial statements of the Company, the performance of the procedures
specified by the American Institute of Certified Public Accountants for
a review of any such financial statements as described in Statement on
Auditing Standards No. 71, inquiries of officials of the Company
responsible for financial and accounting matters and a reading of the
minutes of meetings of the stockholders and the Board of Directors of
the Company and the Audit Committee thereof through a specified date
not more than five days prior to the date of the applicable letter,
nothing came to the attention of the Accountants that caused them to
believe that: (A) any material modification should be made to the
unaudited consolidated financial statements included or incorporated by
reference in the Prospectus for them to be in conformity with generally
accepted accounting principles or any such financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act or the 1934 Act and the
respective rules and regulations of the SEC thereunder; (B) for the
period from the date of the latest consolidated financial statements
included or incorporated by reference in the Prospectus through the
date of the most recent available consolidated financial statements of
the Company and at a subsequent date not more than five days prior to
the date of such letter, there were any decreases in total consolidated
operating revenues, operating income or net income as compared with the
comparable period of the preceding year; or (C) at the date of the most
recent available financial statements of the Company and at a
subsequent date not more than five days prior to the date of such
letter, there was any change in the capital stock of the Company, any
increase in long-term debt of the Company, any decrease in consolidated
net current assets (working capital) of the Company or any decrease in
common stockholders' equity of the Company as compared with the amounts
shown in the most recent consolidated balance sheet included or
incorporated by reference in the Prospectus, except in all instances
for changes, increases or decreases that the Prospectus discloses have
occurred or may occur; or, in each such case, for changes, increases or
decreases that are described in such letter that are reasonably
satisfactory to you.
Such letter shall also cover such other matters as you shall reasonably request,
including but not limited to the Company's "Management's Discussion and Analysis
of Financial Condition and Results of Operations" contained in the Company's
financial statements included or incorporated by reference in the Prospectus and
any other information of an accounting or financial nature included or
incorporated by reference therein that is derived from the accounting records of
the Company.
(e) No Material Changes. (i) Neither the Company nor any of
its subsidiaries shall have sustained, since the date of the most recent audited
consolidated financial statements included or incorporated by reference in the
Prospectus, any loss or interference with their business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus, there shall not have been any change, or
16
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or consolidated
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as described in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), in the judgment of the Underwriters is so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus or to enforce contracts for the sale of
any Securities.
(f) Approval of Listing. At the Closing Date, the Securities
(or the "normal units" as referred to in the Prospectus) and the Issuable Common
Stock shall have been approved for listing on the NYSE, subject only to official
notice of issuance.
(g) Lock-up Agreements. At the date of this Agreement, the
Underwriters shall have received an agreement substantially in the form of
Exhibit A attached hereto signed by the persons listed on Schedule III attached
hereto.
(h) Nonoccurrence of Certain Events. On or after the date of
this Agreement, there shall not have occurred any of the following: (i) a
suspension or limitation of trading in securities of the Company or generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock
Market or any setting of minimum or maximum prices for trading thereon; (ii) a
general moratorium on commercial banking activities in New York, New York
declared by the relevant authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States;
(iii) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, which, in the case of
either clause (iii) or (iv), in the judgment of the Underwriters, makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus
or to enforce contracts for the sale of any of the Securities.
(i) Officers' Certificate. At the Closing Date, the Company
shall have furnished or caused to be furnished to the Underwriters a
certificate, dated the Closing Date, of (i) the chief executive officer, the
President or any Senior Vice President of the Company and (ii) the Treasurer of
the Company in which such officers shall state that the representations and
warranties of the Company in this Agreement are true and correct in all material
respects at and as of the Closing Date, and that the Company has complied with
all agreements and has satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and that, subsequent to the
respective dates as of which information is given in the Prospectus, there has
been no material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or consolidated results of operations
of the Company and its subsidiaries, taken as a whole, otherwise than as
described in the Prospectus.
(j) Ratings. ▇▇▇▇▇'▇ Investors Service, Inc., Standard &
Poor's Ratings Services and Fitch, Inc. shall have publicly assigned to the
long-term senior debt securities of the Company ratings of at least "A3", "A-"
and "A", respectively, and ratings at least at those "A3", "A-" and "A" levels
shall be in full force and effect at the Closing Date and any Date of Delivery.
17
(k) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 1(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary hereunder shall be true
and correct as of each Date of Delivery and, at such Date of Delivery, the
Underwriters shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of (x) the chief executive officer, the President or any
Senior Vice President of the Company and (y) the Treasurer of the
Company confirming that the certificate delivered at the Closing Date
pursuant to Section 5(i) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinions of Company Counsel. The favorable opinions of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, General Counsel and Secretary of
the Company and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, in form and substance
satisfactory to you, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by Sections
5(c)(1) and (2), respectively, hereof.
(iii) Opinion of Underwriters' Counsel. The favorable opinion
of Underwriters' Counsel, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(iv) Bring-down Letter of Accountants. A letter from the
Accountants, in form and substance satisfactory to the Underwriters and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Underwriters pursuant to
Section 5(d) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
business days prior to such Date of Delivery.
(l) Other Documents and Certificates. At the Closing Date and
each Date of Delivery, if any, Underwriters' Counsel shall have been furnished
with all such documents, certificates and opinions as Underwriters' Counsel may
reasonably request and that are customary for transactions of a similar nature,
and of which the Company has been notified in writing prior to the date hereof,
in order to evidence the accuracy and completeness of any of the
representations, warranties, certificates or other written statements of the
Company provided to the Underwriters pursuant to this Agreement, the performance
of any of the covenants of the Company, or the fulfillment of any of the
conditions herein contained. All proceedings taken by the Company at or prior to
the Closing Date or any Date of Delivery in connection with the authorization,
issuance and sale of the Securities as contemplated by this Agreement,
including, without limitation, the execution of this Agreement, shall be
reasonably satisfactory in form and substance to the Underwriters and
Underwriters' Counsel.
In case any of the conditions specified above in this Section 5 shall
not have been fulfilled, this Agreement may be terminated by you upon mailing or
otherwise delivering written notice thereof to the Company. Any such termination
shall be without liability of either party to the other party except as
otherwise provided in Section 4(j) hereof and except for any liability under
Section 6 hereof.
18
6. Indemnification and Contribution
(a) Indemnification by Company. The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages, liabilities
or expenses, as and when incurred, to which such Underwriter may become subject,
joint or several, under the 1933 Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or claims in respect
thereof), arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will promptly reimburse such Underwriter for any reasonable expenses
(including reasonable fees and expenses for no more than one law firm for the
Underwriters) when and as incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to an Underwriter to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or any other prospectus relating to the Securities or any such
amendment or supplement thereto in reliance upon and in conformity with the
Underwriter Information.
(b) Indemnification by the Underwriters. Each Underwriter,
severally, will indemnify and hold harmless the Company against any losses,
claims, damages, liabilities or expenses to which the Company may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or claims in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Securities or
any amendment or supplement thereto, or arise out of are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Securities or any such amendment or supplement, in reliance upon
and in conformity with the Underwriter Information, and will reimburse the
Company for any reasonable expenses (including reasonable fees and expenses for
no more than one law firm for the Company) when and as incurred by the Company
in connection with investigating or defending any such action or claim.
(c) General. Promptly after receipt by an indemnified party
under Section 6(a) or 6(b) hereof of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under Section 6(a) or 6(b) hereof, notify such
indemnifying party in writing of the commencement thereof, but the omission so
to notify such indemnifying party shall not relieve such indemnifying party from
any liability except to the extent that it has been prejudiced in any material
respect by such failure or from any liability that it may have to any such
indemnified party otherwise than under Section 6(a) or 6(b) hereof. In case any
such action shall be brought against any such indemnified party and it shall
notify such indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party under Section 6(a) or (b) hereof
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to such indemnifying party), and, after notice
19
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party under Section 6(a) or 6(b) hereof for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the foregoing, the indemnified party
shall have the right to employ separate counsel at the indemnifying party's
expense and to control its defense of such action if (i) the indemnifying party
and the indemnified party agree to the retention of that counsel, (ii) the
indemnifying party does not assume the defense of such action in a timely manner
or (iii) the indemnified party reasonably objects to such assumption on the
ground that there may be legal defenses available to it that are different from
or in addition to those available to the indemnifying party or another
indemnified party. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (x) includes an
unconditional release of the indemnified party from all liability arising out of
such action 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) Contribution. If the indemnification provided for in this
Section 6 is unavailable to or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) hereof in respect of any losses, claims,
damages, liabilities or expenses (or actions or claims in respect thereof)
referred to therein, then each indemnifying party under Section 6(a) or 6(b)
hereof shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (or actions
or claims in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each such indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses (or actions or claims in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions the Underwriters
received. The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to above in this
Section 6(d). The amount paid or payable by such an indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions or
claims in respect thereof) referred to above in this Section 6(d) shall be
deemed to include any legal or other expenses incurred by such indemnified party
in connection with investigating or defending any such action or claim. The
obligations of the Underwriters to contribute hereunder are several and not
joint. Notwithstanding the provisions of this Section 6(d), no Underwriter shall
20
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by such Underwriter and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) Scope of Obligations. The obligations of the Company under
this Section 6 shall be in addition to any liability that the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director, employee, agent or other representative and to each person,
if any, who controls each Underwriter within the meaning of the 1933 Act or the
1934 Act; and the obligations of the Underwriters under this Section 6 shall be
in addition to any liability that the Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director, employee,
agent or other representative and to each person, if any, who controls the
Company within the meaning of the 1933 Act or the ▇▇▇▇ ▇▇▇.
7. Representations, Warranties and Agreements to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriters, as set forth in this Agreement
or made by or on behalf of the Company or the Underwriters, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of the Underwriters, any of their officers, directors, employees, agents
or other representatives or controlling persons, or the Company, any officer or
director of the Company who signed the Registration Statement or any controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Registration Department, fax number: ▇▇▇-▇▇▇-▇▇▇▇; and notices to the
Company shall be directed to Ameren Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Treasurer.
9. Default by an Underwriter. If any Underwriter shall fail at the
Closing Date to purchase the Securities which it is obligated to purchase under
this Agreement (the DEFAULTED SECURITIES), the non-defaulting Underwriter or
Underwriters shall have the right, but not the obligation, within 24 hours
thereafter, to purchase, or to make arrangements for the appointment of another
purchaser to purchase, the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the non-defaulting
Underwriter or Underwriters shall not have completed such arrangements within
such 24-hour period, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriter or Underwriters. No action taken
pursuant hereto shall relieve any defaulting Underwriter from liability in
respect of its default. In the event of any such default which does not result
in a termination of this Agreement, either the non-defaulting Underwriter or
Underwriters or the Company shall have the right to postpone the Closing Date
for a period not exceeding 7 days in order to effect any required changes in the
Registration Statement, the Prospectus or in any other documents or arrangements
related thereto. The term "Underwriter" for purposes of this Agreement includes
21
any such person substituted for the defaulting Underwriter. Notwithstanding any
termination pursuant to this Section 9, the provisions of Sections 4(j), 6, 7
and 10 hereof shall remain in effect.
10. Miscellaneous. The rights and duties of the parties to this
Agreement shall, pursuant to New York General Obligations Law Section 5-1401, be
governed by the law of the State of New York. This Agreement shall be binding
upon, and inure solely to the benefit of, the Company and the Underwriters
except to the extent provided in Section 6(e) hereof, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No person
who purchases any of the Securities from the Underwriters shall be deemed a
successor or assign by reason merely of such purchase. This Agreement may be
executed by any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument. The word
"or" shall not be exclusive, and all references in this Agreement to the words
"herein," "hereof," "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section or subdivision hereof,
and the captions to such Sections and subdivisions are for convenience only and
shall not affect the construction hereof. The Company is authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
22
If the foregoing is in accordance with your understanding, please sign
and return to the Company the enclosed duplicate hereof, whereupon this
Agreement will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
AMEREN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BY: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
/s/ ▇▇▇▇▇▇▇ Sachs, & Co.
------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
23
SCHEDULE I
----------
NUMBER OF INITIAL
NAME OF UNDERWRITER SECURITIES
------------------- ----------
▇▇▇▇▇▇▇, Sachs & Co................................ 6,900,000
▇▇▇▇▇▇ Brothers Inc................................ 2,580,000
Banc of America Securities LLC..................... 1,260,000
▇.▇. ▇▇▇▇▇▇ Securities Inc......................... 1,260,000
---------
TOTAL......................................... 12,000,000
==========
Sch I-1
SCHEDULE II
1. The initial public offering price per Security shall be $25.00.
2. The purchase price per Security to be paid by the several
Underwriters shall be $24.25, being an amount equal to the initial public
offering price set forth above less $0.75 per Security.
Sch II-1
SCHEDULE III
List of persons subject to lock-up
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
R. ▇▇▇▇ ▇▇▇▇▇▇
Sch III-1
Exhibit A
February __, 2002
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by Ameren Corporation
----------------------------------------------
Dear Sirs:
The undersigned, a stockholder of Ameren Corporation, a Missouri
corporation (the "Company"), understands that ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇
Brothers Inc., Banc of America Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
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, $.01 par value per share (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 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., 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 for the sale of,
or otherwise dispose of or transfer any shares of Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock, 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 any
registration statement under the Securities Act of 1933, as amended, 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, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:
---------------------------------
Print Name:
---------------------------------
Title:
---------------------------------
A-1