EXHIBIT 1.1
AMEREN CORPORATION
$____________
DEBT SECURITIES
UNDERWRITING AGREEMENT
____________, 200_
[Names of Underwriters]
c/o [Name of Lead Underwriter]
[Address]
Ladies and Gentlemen:
Ameren Corporation, a Missouri corporation (the COMPANY), hereby confirms
its agreement with you, as underwriters (the "Underwriters"), as follows:
1. PURCHASE AND SALE. 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 a purchase price of _____% of the principal amount
thereof, $__________ aggregate principal amount of the Company's [Debt
Securities] (the SECURITIES) having the terms set forth in the Prospectus (as
defined in Section 2(b) hereof), in the principal amount set forth opposite the
name of such Underwriter in Schedule I attached hereto. The Securities will be
issued pursuant to an Indenture dated as of ______________ (including the terms
of the Securities to be set forth in an order of the Company thereunder, the
INDENTURE) between the Company and _________________, as trustee (the TRUSTEE).
2. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company represents
and warrants to, 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, 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-______) 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, 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 (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; PROVIDED, HOWEVER, that any
supplement to the Prospectus 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 shall not be deemed to be a supplement to, or a part of, the
Prospectus.
(b) REGISTRATION STATEMENT; PROSPECTUS; INCORPORATED DOCUMENTS. (i)
The Registration Statement, at the Effective Date, any Preliminary Prospectus,
at the time it was filed with the SEC pursuant to Rule 424(b) under the 1933 Act
and when delivered to you for your use in marketing the Securities, 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 (as defined herein), will not and any Preliminary Prospectus, at
the time it was filed with the SEC pursuant to Rule 424(b) under the 1933 Act
and when delivered to you for your use in marketing the Securities, 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 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
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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 _________________ (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 plan of distribution thereof (the PROSPECTUS SUPPLEMENT), as first filed
with the SEC pursuant to Rule 424(b) under the 1933 Act.
(c) INDENTURE. The Indenture has been duly qualified under the 1939
Act, has been duly authorized, executed and delivered by the Company, and
constitutes a valid and binding instrument of the Company enforceable against
the Company in accordance with its 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 Indenture will conform in all
material respects to the description thereof contained in the Prospectus.
(d) SECURITIES. The Securities have been duly authorized and, at the
Closing Date, will have been duly executed by the Company, and, when
authenticated in the manner provided for in the Indenture, issued and delivered
against payment therefor pursuant to this Agreement, will constitute valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms, except as may be limited by the Exceptions, and will be
entitled to the benefits of the Indenture; and the Securities 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 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, 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
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
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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 of the Company or any 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, 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 by the Company, and the
compliance by the Company with all of the provisions of the Securities, the
Indenture and this Agreement, and the consummation of the transactions therein
and herein 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, 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 Indenture, the Securities 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 by the
Company; the 1935 Act Order is in full force and effect and is sufficient to
authorize the transactions contemplated by 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 by the Company, or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except such as
have been obtained under the 1933 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.
(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.
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(k) 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
material 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.
(l) 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 best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(m) 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.
(n) 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.
(o) 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.
(p) 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 as
to clauses (i) and (iii) where such non-compliance with Environmental Laws or
failure to 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.
3. OFFERING; 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 specified in the
Prospectus
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plus accrued interest thereon, if any, from the Closing Date to the date of
delivery of the Securities.
(b) DELIVERY OF SECURITIES. Delivery of the Securities to the
Underwriters, against payment of the purchase price therefor in immediately
available funds by wire transfer, shall be made prior to 1:00 p.m., New York
City time, on ___________, 200_ in book-entry form through the facilities of The
Depository Trust Company, New York, New York (DTC), or at such other time and
date as may be agreed upon in writing by the Company and the Underwriters.
Delivery of the documents required by Section 5 hereof with respect to the
Securities shall be made at such time and date at the offices of Pillsbury
Winthrop LLP (UNDERWRITERS' COUNSEL), or at such other location as may be agreed
upon in writing by the Company and the Underwriters. For purposes of this
Agreement, CLOSING DATE shall mean the hour and date of such delivery and
payment.
The Securities shall be issued in the form of a global certificate
registered in the name of "Cede & Co.," as nominee of DTC. For the purpose of
expediting checking of the Securities by the Underwriters, the Company agrees to
make the Securities available to the Underwriters for such purpose at the
offices of DTC (or a custodian thereof) in New York, New York, not later than
1:00 p.m., New York City time, on the business day preceding the Closing Date or
at such other time and place as may be agreed upon by the Company and the
Underwriters.
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, 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 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; the
Company will deliver to the Underwriters as soon as practicable after the date
of this Agreement as many copies of the Prospectus 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 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 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 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
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Registration Statement, the Prospectus (or any other prospectus relating to the
Securities 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 reasonably
object.
(d) COMPLIANCE WITH 1933 ACT. During the period when a prospectus
relating to any of the Securities 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 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 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 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 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 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 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
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"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) NO ISSUANCE PERIOD. During the period beginning from the date of
this Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Securities, as determined by the
Underwriters, and (ii) 30 days after the Closing Date, the Company will not,
without the prior written consent of the Underwriters, offer for sale, sell or
enter into any agreement to sell, or otherwise dispose of, any debt securities
(other than short-term debt) of the Company, except for the Securities.
(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 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, the Indenture, 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; (iii) all expenses in connection
with the qualification of the Securities 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) any fees charged by a
Rating Agency for rating the Securities; (v) any filing fees incident to, and
the fees and disbursements of Underwriters' Counsel in connection with, any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and disbursements of the Trustee and any agent of the Trustee and
the fees and disbursements of their counsel in connection with the Indenture and
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) 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."
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
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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.
(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) 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. 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 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;
(ii) each 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;
9
(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 the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by 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 Securities have been duly authorized and executed by the
Company and, when authenticated in the manner provided for in the
Indenture, and issued and delivered against payment therefor pursuant to
this Agreement, will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their
terms, except as may be limited by the Exceptions, and will be entitled to
the benefits of the Indenture; and the Securities conform in all material
respects to the description thereof in the Prospectus;
(vi) the Indenture has been duly authorized, executed and delivered
by the Company and, assuming that the Indenture has been duly authorized,
executed and delivered by the Trustee, the Indenture will constitute a
valid and legally binding instrument of the Company enforceable against
the Company in accordance with its terms, except as may be limited by the
Exceptions; the Indenture conforms in all material respects to the
description thereof in the Prospectus; and the Indenture has been duly
qualified under the 1939 Act;
(vii) the issue and sale of the Securities by the Company, and the
compliance by the Company with all of the provisions of the Indenture, the
Securities 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, 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 this Agreement, the Securities and the Indenture 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;
(viii) 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;
10
(ix) the SEC has issued the 1935 Act Order authorizing the issuance
and sale of the Securities by the Company; the 1935 Act Order is in full
force and effect and is sufficient to authorize the transactions
contemplated by 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 by the Company, or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except such
as have been obtained under the 1933 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
(x) 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 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.
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 Indenture 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 (A) may rely as to matters involving the
application of the laws of the State of New York, upon the opinion of
Underwriters' Counsel rendered pursuant to Section 5(b) 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. 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'
11
Counsel as to certain matters involving the application of the laws of the State
of Missouri in its opinion to the Underwriters on the date of such opinion)
without such counsel's prior written consent.
(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:
(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 net sales, income from operations 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 shareholders' 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 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
12
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 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, the effect of which, in any such case described in clause (i) or
(ii), 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 Securities.
(f) RATINGS; NO DOWNGRADING OF RATINGS OR CREDIT REVIEW. ▇▇▇▇▇'▇
Investors Service and Standard & Poor's shall have publicly assigned to the
Securities ratings of __ and __, respectively, which ratings shall be in full
force and effect at the Closing Date; and, on or after the date of this
Agreement, (i) no downgrading shall have occurred in the rating (or expected
rating) accorded any of the Company's securities by any Rating Agency and (ii)
no Rating Agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating (or expected rating) of
any of the Company's securities.
(g) 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.
(h) 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
13
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.
(i) OTHER DOCUMENTS AND CERTIFICATES. At the Closing Date,
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
in connection with the authorization, issuance and sale of the Securities as
contemplated by this Agreement, including, without limitation, the execution of
the Indenture, the Securities and 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.
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
14
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 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
15
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
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 1934 Act.
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.
16
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 ___________________ at the address set forth on the first page of
this Agreement, attention of _______________; 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
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.
17
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:
---------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
BY: [LEAD UNDERWRITER]
By:
---------------------------
Name:
Title:
18
SCHEDULE I
PRINCIPAL
AMOUNT OF
NAME OF UNDERWRITER SECURITIES
-------------------------------------------- --------------
$
TOTAL.................................. $
=====