EXHIBIT 1(a)
TXU CORP.
[Name of Security]
UNDERWRITING AGREEMENT
[Date]
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
Ladies and Gentlemen:
1. Introduction. TXU Corp., a Texas corporation (the "Company"),
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proposes to issue and sell severally to the underwriters named in Schedule II
hereto (the "Underwriters") [1 an aggregate of _________ shares of the
Company's Common Stock, without par value (the "Common Stock"), and the Series A
Preference Stock purchase rights attached thereto (the "Rights") (collectively,
referred to as the "Shares" or "Securities")] [2 an aggregate of _________
shares of the Company's Preference Stock, $25 par value per share, of the ____
series, having the designation and with the terms specified in Schedule I hereto
(the "Securities")] [3 $_________ aggregate principal amount of the Company's
debt securities having the designation and with the terms specified in Schedule
I hereto (the "Securities")] [4 the Company's Equity Units ("Initial
Securities"). [modify to reflect transaction: The Initial Securities will
initially consist of (a) ______ aggregate units ("Type A Securities") with a
stated amount per Type A Security of $__ (the "Stated Amount"), and (b) ________
aggregate units ("Type B Securities") with a stated amount per Type B Security
equal to the Stated Amount (collectively, the "Securities")]].
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1. For use in connection with Common Stock.
2. For use in connection with Preference Stock.
3. For use in connection with Debt Securities.
4. For use in connection with Stock Purchase Units.
2. Description of Securities.
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[2 The Securities shall have the preferences, designations, rights,
privileges, powers, restrictions, limitations and qualifications set forth
in the Company's Restated Articles of Incorporation, as amended, with
respect to Preference Stock and the resolution of the Special Securities
Committee of the Company's Board of Directors establishing and setting
forth the terms of the Securities, copies of which have been furnished to
Pillsbury Winthrop LLP ("Counsel for the Underwriters").]
[3 The Securities are to be issued pursuant to the provisions of an
Indenture (For Unsecured Debt Securities, Series __), to be dated as of
_________ __, 2001, between the Company and The Bank of New York, as
trustee (the "Indenture Trustee"), said Indenture, together with any
amendments or supplements thereto, being hereinafter referred to as the
"Indenture", and an Officer's Certificate establishing the terms of the
Securities to be dated on or about ___________ __, 2001, in each case, with
the material terms described in the Prospectus (as hereinafter defined).
[4 Modify to reflect transaction: Each Type A Security will initially
consist of a unit comprised of (a) a stock purchase contract (a "Purchase
Contract") for the purchase of shares of the Company's common stock,
without par value ("Common Stock") and (b) an interest in a __% Series __
Senior Note due ____________ (each such Senior Note, a ("Debt Security")
issued pursuant to an Indenture (for Unsecured Debt Securities, Series __),
to be dated as of _______ __, 2001, between the Company and The Bank of New
York, as trustee (the "Indenture Trustee"), said Indenture, together with
any amendments or supplements thereto, being hereinafter referred to as the
"Indenture", and an Officer's Certificate establishing the terms of the
Debt Securities to be dated on or about ___________ __, 2001, in each case,
with the material terms described in the Prospectus (as hereinafter
defined). Each Type B Security will initially consist of a unit comprised
of (a) a Purchase Contract and (b) a ____ undivided interest in a
zero-coupon U.S. Treasury Security (CUSIP No. _____) in a principal amount
equal to $1,000 payable on ___________ (each such Treasury Security, a
"Treasury Security"). Under each Purchase Contract, pursuant to the terms
of a Purchase Contract Agreement, dated as of ________ __, 2001, between
____________, as Purchase Contract Agent, and the Company (the "Purchase
Contract Agreement"), (i) the holder will purchase from the Company on
__________ __, _____ (the "Purchase Contract Settlement Date"), for an
amount of cash equal to the Stated Amount, a number of newly issued shares
of Common Stock determined as provided in the Purchase Contract Agreement
and (ii) with respect to Type B Securities, the Company will pay the holder
unsecured contract adjustment payments ("Contract Adjustment Payments"), if
any, at the rate of __% of the Stated Amount per annum. In accordance with
the terms of the Purchase Contract Agreement, the Debt Securities
constituting a part of the Type A Securities and the Treasury Securities
constituting part of the Type B Securities will be pledged by the Purchase
Contract Agent, on behalf of the holders of the Securities, to
_______________, as Collateral Agent, pursuant to the Pledge Agreement, to
be dated as of __________ __, 2001 (the "Pledge Agreement"), among the
Company, the Purchase Contract Agent, the Collateral Agent, the Custodial
Agent and the Securities Intermediary, to secure the holders' obligation to
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purchase Common Stock pursuant to the Purchase Contract. Under certain
circumstances, the Debt Securities will be subject to remarketing pursuant
to a Remarketing Agreement, to be dated as of ___________ __, 2001, between
_______________ and the Company (the "Remarketing Agreement").]
3. Representations and Warranties of the Company. The Company
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represents and warrants to the several Underwriters that:
(a) The Company, TXU Capital III and TXU Capital IV have filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 on , 2000 (Registration Nos. 333- , 333- -01 and 333- -02)
for the registration under the Securities Act of 1933, as amended (the
"Securities Act") of $___________ aggregate amount of (i) the Company's Common
Stock, without par value, and related Preference Stock purchase rights, (ii) the
Company's Preference Stock, $25 par value, (iii) the Company's unsecured debt
securities ("Debt Securities"), (iv) contracts to purchase shares of Common
Stock ("Stock Purchase Contracts"), (v) stock purchase units, each representing
ownership of a Stock Purchase Contract and Debt Securities or obligations of
third parties ("Stock Purchase Units") and (vi) the preferred trust securities
(the "Trust Securities") of TXU Capital III and TXU Capital IV, an equal
principal amount of the Company's junior subordinated debentures and guarantees
and other obligations of the Company in respect of such Trust Securities. Such
registration statement ("Registration Statement No. 333- ") was declared
effective by the Commission on , 2001. References herein to the term
"Registration Statement" as of any date shall be deemed to refer to Registration
Statement No. 333- , as amended or supplemented to such date, including all
documents incorporated by reference therein as of such date pursuant to Item 12
of Form S-3 ("Incorporated Documents"); provided that if the Company files a
registration statement with the Commission pursuant to Section 462(b) of the
Securities Act Regulations (the "Rule 462(b) Registration Statement"), then
after such filing, all references to "Registration Statement" shall be deemed to
include the Rule 462(b) Registration Statement. References herein to the term
"Prospectus" as of any given date shall be deemed to refer to the prospectus,
including any preliminary prospectus, relating to the securities registered
under the Registration Statement which prospectus forms a part of the
Registration Statement, as amended or supplemented as of such date (other than
by amendments or supplements relating to securities other than the Securities),
including all Incorporated Documents as of such date and including any
prospectus supplement relating to the Securities. References herein to the term
"Effective Date" shall be deemed to refer to the later of the time and date the
Registration Statement, any post-effective amendment to the Registration
Statement or any Rule 462(b) Registration Statement was declared effective or
the time and date of the filing thereafter of the Company's most recent Annual
Report on Form 10-K if such filing is made prior to the Closing Date, as
hereinafter defined. The Company will not file any amendment to the Registration
Statement or supplement to the Prospectus on or after the date of this Agreement
and prior to the Closing Date, as hereinafter defined, without prior notice to
the Underwriters, or to which [1,3,4 Pillsbury Winthrop LLP ("Counsel for the
Underwriters")] [2 Counsel for the Underwriters] shall reasonably object in
writing. For the purposes of this Agreement, any Incorporated Document filed
with the Commission on or after the date of this Agreement and prior to the
Closing Date, as hereinafter defined, shall be deemed an amendment or supplement
to the Registration Statement and the Prospectus.
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(b) On the Effective Date, the Registration Statement and the
Prospectus fully complied and at the Closing Date, as hereinafter defined, the
Registration Statement, the Prospectus [3 and the Indenture] [4 , the Indenture
and the Purchase Contract Agreement] will fully comply in all material respects
with the applicable provisions of the Securities Act, [3,4 the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"),] and the applicable rules
and regulations of the Commission thereunder; on the Effective Date, the
Registration Statement did not, and at the Closing Date, as hereinafter defined,
the Registration Statement will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; on the Effective Date, the
Prospectus did not, and at the Closing Date, as hereinafter defined, and on the
date it is filed with the Commission pursuant to Rule 424 of the General Rules
and Regulations of the Securities Act ("Rule 424"), the Prospectus will not,
contain an 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 on said dates the
Incorporated Documents, taken together as a whole, fully complied or will fully
comply in all material respects with the applicable provisions of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable rules
and regulations of the Commission thereunder, and, when read together with the
Prospectus on said dates did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the foregoing
representations and warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information furnished in writing
to the Company by, or on behalf of, any Underwriter, through the
Representatives, for use in connection with the preparation of the Registration
Statement or the Prospectus or to any statements in or omissions from the
Statements of Eligibility under the Trust Indenture Act [1,2, of 1939, as
amended ("Trust Indenture Act")] or amendments thereto, filed as exhibits to the
Registration Statement.
(c) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not result in a breach of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, charter, by-laws or other agreement or instrument to which the Company
is now a party.
(d) Each direct and indirect material subsidiary of the Company has
been incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and to conduct its
business as currently conducted and as set forth in or contemplated by the
Prospectus, and is qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries, considered as a whole.
Except as otherwise set forth in or contemplated by the Registration Statement
and the Prospectus, all of the issued and outstanding shares of capital stock of
direct and indirect material subsidiaries of the Company have been authorized
and validly issued, are fully paid and non-assessable and (except for any
directors' qualifying shares) are owned by the Company, directly or through its
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subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of capital stock of
such material subsidiaries was issued in violation of preemptive or other
similar rights arising by operation of law, under the charter or by-laws of any
subsidiary or under any agreement to which the Company or any subsidiary is a
party.
(e) No approval, authorization, consent or order of any public board
or body (except such as have been already obtained and other than in connection
or in compliance with the provisions of the blue-sky laws of any jurisdiction,
as to which the Company makes no representations or warranties) is legally
required for the issuance and sale by the Company of the Securities.
4. Purchase and Sale. On the basis of the representations and
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warranties herein contained, and subject to the terms and conditions herein set
forth, the Company shall sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein specified,
severally and not jointly, the respective number or aggregate amount of the
Securities set forth opposite the name of such Underwriter in Schedule II
attached hereto, at the purchase price or prices set forth in Schedule I hereto.
[1 The Underwriters agree to make a public offering of the Shares. The
Underwriters have advised the Company that the Shares will be offered to the
public at $___ per share and to certain dealers selected by the Representatives
at a price which represents a concession not in excess of $____ per share under
the public offering price, and that any Underwriter may allow, and such dealer
may reallow, a concession, not in excess of $____ per share, to other
Underwriters or certain other dealers.]
[4 The Debt Securities and Treasury Securities constituting a part of
the Type A Securities and Type B Securities will be pledged to the Collateral
Agent to secure holders' obligations to purchase Common Stock under the Purchase
Contracts. Such pledge shall be effected by: (i) the delivery to the Collateral
Agent of the Debt Securities to be pledged in certificated form endorsed in
blank and (ii) the transfer to the Collateral Agent of the Treasury Securities
to be pledged, at the Closing Date in accordance with the Pledge Agreement.
5. Time and Place of Closing. Delivery of the Securities against
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payment of the aggregate purchase price, plus accumulated dividends or accrued
interest, as the case may be, thereon, if any, from the [date of original
issuance] to the date of payment for and delivery of the Securities, therefor by
wire transfer in federal funds [4, and against delivery to the Collateral Agent
of the Debt Securities and the Treasury Securities constituting a part of the
Type A Securities and Type B Securities, respectively] by the Underwriters or on
their behalf shall be made at the offices of Xxxxxx Xxxx & Priest LLP, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York time, on , or at such
other place, time and date as shall be agreed upon in writing by the Company and
the Underwriters or established in accordance with the following paragraph. The
hour and date of such delivery and payment are herein called the "Closing Date".
The Securities shall be delivered to The Depository Trust Company or to The Bank
of New York, as custodian for The Depository Trust Company, in fully registered
global form registered in the name of Cede & Co., for the respective accounts
specified by the Underwriters not later than the close of business on the
business day preceding the Closing Date or such other time as may be agreed upon
by the Underwriters. The Company agrees to make the Securities available to the
5
Underwriters for checking purposes not later than 2:00 P.M., New York time, on
the last business day preceding the Closing Date at the offices of Xxxxxx Xxxx &
Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such other
place as the Company may specify.
If any Underwriter shall fail or refuse (otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to purchase and pay
for the [1,2,4 number] [3 principal amount] of the Securities that such
Underwriter has agreed to purchase and pay for hereunder, the Company shall
immediately give notice to the other Underwriters of the default of such
Underwriter, and the other Underwriters shall have the right within 24 hours
after the receipt of such notice to determine to purchase, or to procure one or
more other underwriters, who are members of the National Association of
Securities Dealers, Inc. ("NASD") (or, if not members of the NASD, who are not
eligible for membership in the NASD and who agree (i) to make no sales within
the United States, its territories or its possessions or to persons who are
citizens thereof or residents therein and (ii) in making sales to comply with
the NASD's Conduct Rules) and are satisfactory to the Company, to purchase, upon
the terms herein set forth, [1,2,4 number] [3 principal amount] of the
Securities that the defaulting Underwriter had agreed but failed or refused to
purchase. If any non-defaulting Underwriter or Underwriters shall give written
notice to the Company of the determination in that regard within 24 hours after
receipt of notice of any such default, the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company shall determine.
If no non-defaulting Underwriter shall give such notice, then this Agreement may
be terminated by the Company, upon like notice given to the non-defaulting
Underwriters, within a further period of 24 hours. If in such case the Company
shall not elect to terminate this Agreement, it shall have the right,
irrespective of such default:
(a) to require each non-defaulting Underwriter to purchase and pay for
the respective [1,2,4 number] or [3 amount] of the Securities that it had agreed
to purchase hereunder as hereinabove provided and, in addition, the
[1,2,4 number] [3 principal amount] of the Securities that the defaulting
Underwriter shall have so failed to purchase up to [1,2,4 a number] or [3 an
amount] thereof equal to one-ninth (1/9) of the [1,2,4 number] or [3 amount] of
Securities that such non-defaulting Underwriter has otherwise agreed to purchase
hereunder, and/or
(b) to procure one or more persons, reasonably acceptable to the
Representatives, who are members of the NASD (or, if not members of the NASD,
who are not eligible for membership in the NASD and who agree (i) to make no
sales within the United States, its territories or its possessions or to persons
who are citizens thereof or residents therein and (ii) in making sales to comply
with the NASD's Conduct Rules), to purchase, upon the terms herein set forth,
either all or a part of the [1,2,4 number] [3 amount] of the Securities that
such defaulting Underwriters had agreed to purchase or that portion thereof that
the remaining Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a).
In the event the Company shall exercise its rights under (a) and/or
(b) above, the Company shall give written notice thereof to the non-defaulting
Underwriters within such further period of 24 hours, and thereupon the Closing
Date shall be postponed for such period, not exceeding three business days, as
the Company shall determine.
6
In the computation of any period of 24 hours referred to in this
Section 5, there shall be excluded a period of 24 hours in respect of each
Saturday, Sunday or legal holiday that would otherwise be included in such
period of time.
Any action taken by the Company under this Section 5 shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement. Termination by the Company under this Section
5 shall be without any liability on the part of the Company or any
non-defaulting Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees that:
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(a) It will promptly deliver to the Underwriters a signed copy of the
Registration Statement as originally filed or, to the extent a signed copy is
not available, a conformed copy, certified by an officer of the Company to be in
the form as originally filed, including all Incorporated Documents and exhibits
and of all amendments thereto.
(b) It will deliver to the Underwriters, as soon as practicable after
the date hereof, as many copies of the Prospectus as of such date as the
Underwriters may reasonably request.
(c) It will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 as soon as practicable and advise the Underwriters of the
issuance of any stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings therefor of which
the Company shall have received notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to secure the prompt removal
thereof if issued.
(d) If, during such period of time (not exceeding nine months) after
the Prospectus has been filed with the Commission pursuant to Rule 424 as in the
opinion of Counsel for the Underwriters a prospectus covering the Securities is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event relating to or affecting the Company or of which the Company
shall be advised in writing by the Underwriters shall occur that in the
Company's reasonable opinion after consultation with Counsel for the
Underwriters should be set forth in a supplement to, or an amendment of, the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser, the Company will, at its
expense, amend or supplement the Prospectus by either (i) preparing and
furnishing to the Underwriters at the Company's expense a reasonable number of
copies of a supplement or supplements or an amendment or amendments to the
Prospectus or (ii) making an appropriate filing pursuant to Section 13 of the
Exchange Act, which will supplement or amend the Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that should such event relate
solely to the activities of any of the Underwriters, then such Underwriters
shall assume the expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver a prospectus after
the expiration of nine months from the date the Prospectus is filed with the
Commission pursuant to Rule 424, the Company, upon the Underwriter's request,
will furnish to the Underwriter, at the expense of the Underwriters, a
7
reasonable quantity of a supplemental prospectus or supplements to the
Prospectus complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security holders, as soon
as practicable, an earnings statement (which need not be audited) covering a
period of at least twelve months beginning not earlier than the first day of the
month next succeeding the month in which occurred the effective date of the
Registration Statement as defined in Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities for offer and sale
under the blue-sky laws of such jurisdictions as the Underwriters may designate,
provided that the Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to service of process
under the laws of any jurisdiction, or to meet any other requirements deemed by
the Company to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and taxes
(except transfer taxes) in connection with (i) the preparation and filing by it
of the Registration Statement, (ii) the issuance and delivery of the Securities
as provided in Section 5 hereof (including, without limitation, all trustee and
rating agency fees), (iii) the qualification of the Securities under blue-sky
laws (including counsel fees not to exceed $7,500 and reasonable disbursements
of counsel), and (iv) the printing and delivery to the Underwriters of
reasonable quantities of the Registration Statement and, except as provided in
Section 6(d) hereof, of the Prospectus. The Company shall not, however, be
required to pay any amount for any expenses of the Underwriters, except that, if
this Agreement shall be terminated in accordance with the provisions of Section
7, 8 or 10 hereof, the Company will reimburse the Underwriters for the fees and
disbursements of Counsel for the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event, and will reimburse the
Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount
not exceeding $5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits.
(h) [2,3,4 During the period from the date of this Agreement to the
Closing Date,
the Company will not, without the prior written consent of the Representatives,
directly or indirectly, publicly issue, sell, offer or contract to sell, in the
market in which the Securities are being offered and sold, any securities of the
Company or any of its subsidiaries which are of the same class as the
Securities.]
7. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for the Securities shall be subject to the
accuracy of the representations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to be performed
hereunder prior to the Closing Date, and to the following conditions:
8
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 prior to 5:30 P.M., New York time, on the second business day after
the date of this Agreement, or such other time and date as may be approved by
the Underwriters.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing Date and
signed by an officer of the Company, to the effect that no such stop order is in
effect and that no proceedings for such purpose are pending before, or to the
knowledge of the Company threatened by, the Commission.
(c) On the Closing Date, the Underwriters shall have received from
Xxxxxxx Xxxxxxxx Xxxxxxxxxx LLP, General Counsel for the Company, Xxxxxx Xxxx &
Priest LLP, of counsel for the Company, and Pillsbury Winthrop LLP, Counsel for
the Underwriters, opinions in substantially the form and substance prescribed in
Schedules III, IV and V hereto (i) with such changes therein as may be agreed
upon by the Company and the Underwriters, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Securities shall be
supplemented or amended after the Prospectus shall have been filed with the
Commission pursuant to Rule 424, with any changes therein necessary to reflect
such supplementation or amendment.
(d) On and as of the Closing Date, the Underwriters shall have
received from Deloitte & Touche LLP a letter to the effect that (i) they are
independent certified public accountants with respect to the Company, within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder, (ii) in their opinion, the consolidated financial statements audited
by them and included or incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting requirements of the
Exchange Act and the related rules and regulations by the Commission thereunder,
(iii) on the basis of a reading of the unaudited amounts of operating revenues
and net income included or incorporated by reference in the Prospectus and the
related consolidated financial statements from which these amounts were derived,
the latest available unaudited consolidated financial statements of the Company
and the minute books of the Company and inquiries of officers of the Company and
of certain direct and indirect subsidiaries of the Company who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards and would not necessarily reveal matters
of significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters' purposes), nothing
has come to their attention which caused them to believe that (A) any material
modifications should be made to the unaudited condensed consolidated financial
statements of the Company included in the quarterly reports, incorporated by
reference in the Prospectus, for them to be in conformity with generally
accepted accounting principles, (B) the unaudited condensed consolidated
financial statements included in the quarterly reports do not conform in all
material respects with the applicable accounting requirements of the Exchange
Act and the related rules and regulations adopted by the Commission, (C) for the
______ months ended ________ __, 2001, if available, there were any decreases in
9
operating revenues or net income as compared with the comparable period of the
preceding year, and (D) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock of the Company,
short-term bank loans, commercial paper, long term debt or long-term debt due
currently of the Company or decrease in its net assets, in each case as compared
with amounts shown in the most recent consolidated balance sheets of the Company
incorporated by reference in the Prospectus, except in all instances for changes
or decreases that the Prospectus discloses have occurred or may occur or which
are occasioned by the declaration of a regular quarterly dividend or the
acquisition of long-term debt for sinking fund purposes, or which are described
in such letter, and (iv) they have compared the dollar amounts (or percentages
or ratios derived from such dollar amounts) and other financial information
included or incorporated by reference in the Registration Statement and the
Prospectus as reasonably requested by the Underwriters (in each case to the
extent that such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its consolidated
subsidiaries subject to the internal controls of the accounting system of such
companies or are derived indirectly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter, and have found
such dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such letter.
(e) Since the most recent dates as of which information is given in
the Registration Statement or the Prospectus, there shall not have been any
material adverse change in the business, property or financial condition of the
Company and its subsidiaries, considered as a whole, whether or not in the
ordinary course of business, and, since such dates, there shall not have been
any material transaction entered into by any of the Company and its material
subsidiaries, in each case other than transactions in the ordinary course of
business and transactions contemplated by the Registration Statement or
Prospectus, and at the Closing Date the Underwriters shall have received a
certificate to such effect dated the Closing Date and signed by an officer of
the Company.
(f) All legal proceedings to be taken in connection with the issuance
and sale of the Securities as described in the Prospectus shall have been
satisfactory in form and substance to Counsel for the Underwriters.
(g) [3,4 At the Closing Date, (i) the Securities shall be rated at
least ________ and _________ by Xxxxx'x Investor Service, Inc. ("Moody's"), and
Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx Companies, Inc.
("S&P"), respectively, and the Company shall have delivered to the Underwriters
a letter from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the respective Securities have such ratings, and
(ii) neither Moody's nor S&P shall have, since the date of this Agreement,
downgraded or publicly announced that it has under surveillance or review, with
possible negative implications, its ratings of the Securities or any securities
of the Company which are of the same class as the Securities, or of the
financial condition of the Company.]
The failure of one or more conditions specified above in this Section
7 shall permit the termination of this Agreement by the Representatives upon
notice thereof to the Company. Any such termination shall be without liability
10
of any party to any other party except as otherwise provided in Sections 6(g)
and 9 hereof.
8. Conditions of Company's Obligations. The obligation of the
-----------------------------------
Company to deliver the Securities shall be subject to the conditions that the
Prospectus shall have been filed with the Commission pursuant to Rule 424 prior
to 5:30 P.M., New York time, on the second business day after the date of this
Agreement or such other time and date as may be approved by the Company, and no
stop order suspending the effectiveness of the Registration Statement shall be
in effect at the Closing Date and no proceedings for that purpose shall be
pending before, or threatened by, the Commission at the Closing Date. In case
these conditions shall not have been fulfilled, this Agreement may be terminated
by the Company upon notice thereof to the Underwriters. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 6(g) and 9 hereof.
9. Indemnification.
---------------
(a) The Company shall indemnify, defend and hold harmless each
Underwriter, its officers and directors and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each such Underwriter and
controlling person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) as and when incurred by them in
connection with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this Section 9
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by any Underwriter, through the Representatives,
expressly for use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement to either thereof, or
arising out of, or based upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statements of Eligibility under
the Trust Indenture Act of any Trustee with respect to any indenture qualified
pursuant to the Registration Statement; and provided further, that the indemnity
agreement contained in this Section 9 shall not inure to the benefit of any
Underwriter (or of any officer or director of such Underwriter or of any person
controlling such Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the Securities to any
person if a copy of the Prospectus (including any amendment or supplement
thereto if any amendments or supplements thereto shall have been furnished to
the Underwriters at or prior to the time of written confirmation of the sale
involved) (exclusive of the Incorporated Documents) shall not have been given or
11
sent to such person by or on behalf of such Underwriter with or prior to the
written confirmation of the sale involved unless the alleged omission or alleged
untrue statement was not corrected in the Prospectus at the time of such written
confirmation. The indemnity agreement of the Company contained in this Section 9
and the representations and warranties of the Company contained in Section 3
hereof shall remain operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made by or on behalf of
any Underwriter, its officers or its directors or any such controlling person,
and shall survive the delivery of the Securities.
(b) Each Underwriter shall indemnify, defend and hold harmless the
Company, its officers and directors, and each person who controls the Company
within the meaning of Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees) as and
when incurred by them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such Underwriter, through the Representatives, for
use in connection with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof. Each Underwriter
hereby furnishes to the Company in writing expressly for use in the Prospectus
[indicate topics addressed and location in the Prospectus]. The indemnity
agreement of the respective Underwriters contained in this Section 9 shall
remain operative and in full force and effect regardless of any termination of
this Agreement or of any investigation made by or on behalf of the Company, its
directors or its officers, any such Underwriter, or any such controlling person,
and shall survive the delivery of the Securities.
(c) The Company and the several Underwriters each shall, upon the
receipt of notice of the commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the failure to notify such indemnifying
party or parties of any such action shall not relieve such indemnifying party or
parties from any liability hereunder to the extent it is not materially
prejudiced as a result of such failure to notify and in any event shall not
relieve it from any liability which it or they may have to the indemnified party
otherwise than on account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel chosen by such
indemnifying party or parties and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action, and such defendant
or defendants shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect not to assume the
12
defense of such action, such indemnifying party will reimburse such indemnified
party or parties for the reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such action (including
impleaded parties) include both the indemnified party and the indemnifying party
and counsel for the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the representation by a single
counsel of both the indemnifying party and the indemnified party, the
indemnified party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, whose reasonable fees and expenses shall
be paid by such indemnifying party, to participate in the defense of such action
on behalf of such indemnified party or parties (it being understood, however,
that the indemnifying party shall not be liable for the fees and expenses of
more than one separate counsel (in addition to local counsel) representing the
indemnified parties who are parties to such action). Each of the Company and the
several Underwriters agrees that without the other party's prior written
consent, which consent shall not be unreasonably withheld, it will not settle,
compromise or consent to the entry of any judgment in any claim in respect of
which indemnification may be sought under the indemnification provisions of this
Agreement, unless such settlement, compromise or consent (i) includes an
unconditional release of such other party from all liability arising out of such
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of such other party.
(d) If the indemnification provided for in subparagraph (a) or (b)
above shall be unenforceable under applicable law by an indemnified party, each
indemnifying party agrees to contribute to such indemnified party with respect
to any and all losses, claims, damages, liabilities and expenses for which each
such indemnification provided for in subparagraph (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect (i) the
relative fault of each indemnifying party on the one hand and the indemnified
party on the other in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this
Agreement, and (iii) any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the indemnified party and
each such party's relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subparagraph (d) were to be determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute in
excess of the amount equal to the excess of (i) the total price at which the
Securities underwritten by it were offered to the public, over (ii) the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission. The obligations of each Underwriter to contribute pursuant to this
Section 9 are several and not joint and shall be in the same proportion as such
13
Underwriter's obligation to underwrite Securities is to the total amount of
Securities set forth in Schedule II hereto.
10. Termination. This Agreement may be terminated, at any time prior
-----------
to the Closing Date, by the Representatives by written notice to the Company if
after the date hereof and at or prior to the Closing Date, (a) there shall have
occurred any suspension or material limitation of trading of any of the
Company's securities on the New York Stock Exchange, Inc. ("NYSE") or any
general suspension of trading in securities on the NYSE, the American Stock
Exchange, Inc. ("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or there
shall have been established by the NYSE, AMEX or NASDAQ or by the Commission or
by any federal or state agency or by the decision of any court, any general
limitation on prices for such trading or any general restrictions on the
distribution of securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any (i) new material
outbreak of hostilities or (ii) new material other national or international
calamity or crisis, including, but not limited to, an escalation of hostilities
that existed prior to the date of this Agreement or (iii) material adverse
change in the financial markets in the United States, and the effect of any such
event specified in clause (a) or (b) above on the financial markets of the
United States shall be such as to make it impracticable, in the reasonable
judgment of the Representatives, for the Underwriters to enforce contracts for
the sale of the Securities. This Agreement may also be terminated with respect
to the Securities at any time prior to the Closing Date by the Representatives
if, in their reasonable judgment, the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus (other than an
amendment or supplement relating solely to the activity of any Underwriter or
Underwriters) prepared and issued by the Company after the effectiveness of this
Agreement shall have disclosed a material adverse change in the business,
property or financial condition of the Company and its subsidiaries, considered
as a whole, whether or not in the ordinary course of business, that has
materially impaired the marketability of the Securities. Any termination hereof
pursuant to this Section 10 shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT
-------------
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement shall
inure to the benefit of the Company, the several Underwriters and, with respect
to the provisions of Section 9 hereof, each director, officer and controlling
person referred to in said Section 9, and their respective successors. Nothing
herein is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
any provision in this Agreement. The term "successor" as used herein shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
12. Notices. All communications hereunder shall be in writing, and,
-------
if to the Underwriters, shall be mailed or delivered to the Representatives at
the addresses set forth above, or, if to the Company, shall be mailed or
delivered to it at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Treasurer.
14
If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
TXU CORP.
By ____________________________
Accepted and delivered as of
the date first above written
[Representatives of Underwriters]
By:
By:___________________________________
15
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation:
[1,2 Number of shares]
[4 Number of Units]
[2 Liquidation Preference Amount per share:]
[3 Principal Amount:]
[4 Aggregate Stated Amount:]
[3 Date of Maturity:]
[2 Dividend Rate:]
[3 Interest Rate:]
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
------------------------
1. For use in connection with Common Stock.
2. For use in connection with Preference Stock.
3. For use in connection with Debt Securities.
4. For use in connection with Stock Purchase Units.
I-1
SCHEDULE II
-----------
TXU CORP.
[name of Security]
[1,2,4 Number] [3 Principal Amount] of
Name Securities
---- ----------
[names of Underwriters]
Total
-----
========================================
------------------------
1. For use in connection with Common Stock.
2. For use in connection with Preference Stock.
3. For use in connection with Debt Securities.
4. For use in connection with Stock Purchase Units.
II-1
SCHEDULE III
------------
[LETTERHEAD OF XXXXXXX XXXXXXXX XXXXXXXXXX LLP]
[Date]
as Representatives of the Underwriters named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as General Counsel to TXU Corp. (the "Company") in
connection with the issuance and sale by the Company of ____ of its
_____________ ("Securities") pursuant to the Underwriting Agreement dated
______________ among the Company and the Representatives of the several
Underwriters named therein (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, [3 the Indenture] [4 the Remarketing Agreement, the
Pledge Agreement, the Purchase Contract Agreement, the Indenture, the Purchase
Contracts], and the Securities. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed necessary as a
basis for the conclusions of law contained in the opinions expressed below. We
have relied as to various questions of fact upon the representations and
warranties of the Company contained in the Underwriting Agreement and, where we
deemed appropriate, on certificates of public officials.
[1,2 We have not examined the certificate for the Securities, except a
specimen thereof, and have relied upon a certificate of the transfer agent and
registrar as to the execution thereof.]
------------------------
1. For use in connection with Common Stock.
2. For use in connection with Preference Stock.
3. For use in connection with Debt Securities.
4. For use in connection with Stock Purchase Units.
III-1
[3 We have not examined the Securities, except a specimen thereof, and
have relied upon a certificate of the trustee under the Indenture as to the
authentication of the Securities.] [4 We have not examined the Securities,
except a specimen thereof, and have relied upon a certificate of the trustee
under the Indenture as to the authentication of the Debt Securities and a
certificate of the Purchase Contract Agent under the Purchase Contract Agreement
as to the authentication of the Securities.] In our examination we have assumed
the genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as photostatic or certified copies.
Upon the basis of our familiarity with these transactions and with the
affairs and properties of the Company generally, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
o The Company is a corporation duly authorized, validly existing
and in good standing under the laws of the State of Texas, and has the corporate
power and authority: (a) to execute, deliver and perform its obligations under
the Underwriting Agreement [3 and the Indenture] [4, Purchase Contract
Agreement, Pledge Agreement, Purchase Contracts, Indenture and Remarketing
Agreement], (b) to issue the Securities [3 and to incur the indebtedness to be
evidenced thereby] [4 and the Common Stock issuable pursuant to the Purchase
Contracts and to incur the indebtedness evidenced by the Debt Securities, (c) to
make the Contract Adjustment Payments and (d)] [1,2,3 and (c)] to own its
property and assets and to conduct the business which it is now conducting.
o [1,2,3 The Underwriting Agreement] [4 Each of the Underwriting
Agreement, the Purchase Contract, the Pledge Agreement, the Purchase Contracts,
the Indenture and the Remarketing Agreement] has been duly authorized, executed
and delivered by the Company.
o [2,4 The Securities conform as to legal matters with the
statements concerning them in the Prospectus, have been duly and validly
authorized and issued, are fully paid and non-assessable, and are entitled to
the rights, privileges and preferences set forth in the Restated Articles of
Incorporation, as amended, of the Company.]
o [1 The Securities have been duly and validly issued, are fully
paid and non-assessable and conform as to legal matters with the statements
concerning the Securities made in the Prospectus.]
o [3 The Indenture has been duly qualified under the Trust
Indenture Act.] [4 Each of the Indenture and the Purchase Contract Agreement has
been duly qualified under the Trust Indenture Act.]
o [3 The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities, when issued against
payment therefor as contemplated by the Underwriting Agreement, will be entitled
to the benefits of the Indenture; and the Securities (when so issued) and the
Indenture] [4 The Securities have been authorized, executed and delivered by the
Company; the Debt Securities, when issued against payment therefor as
contemplated by the Underwriting Agreement, will be entitled to the benefits of
III-2
the Indenture; the Type A Securities and Type B Securities, when issued against
payment therefor as contemplated by the Underwriting Agreement, will be entitled
to the benefits of the Purchase Contract Agreement and the Securities (when so
issued), the Purchase Contract Agreement, the Pledge Agreement, the Purchase
Contracts and the Indenture] [3,4 are legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their respective
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies of
creditors generally and general principles of equity [4 and, with respect to the
Pledge Agreement, subject to any principles of public policy limiting the rights
to enforce the indemnification provisions contained therein].]
o [4 The Common Stock issuable pursuant to the Purchase Contracts
has been validly authorized and reserved for issuance and, when issued and
delivered by the Company in accordance with the provisions of the Purchase
Contract Agreement, the Purchase Contracts and the Pledge Agreement, will be
fully paid and non-assessable; the issuance of such Common Stock, the Type A
Securities and the Type B Securities is not subject to preemptive or other
similar rights arising by law, or to the best of our knowledge, otherwise.]
o The statements made in the Prospectus under the captions [Insert
titles of sections describing the Securities in the Prospectus and Prospectus
Supplement], insofar as they purport to constitute summaries of the terms of the
documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
o The Company is not an investment company within the meaning of
the Investment Company Act of 1940, as amended.
o Other than as stated in the Registration Statement and the
Prospectus (or described in the Incorporated Documents), there are no material
pending legal proceedings to which the Company or any of its subsidiaries is a
party or of which property of the Company or any of its subsidiaries is the
subject which if determined adversely would have a material effect on the
Company and its subsidiaries taken as a whole, and, to our knowledge, no such
proceedings are contemplated;
o The Registration Statement, as of the Effective Date, and the
Prospectus at the time it was filed with the Commission pursuant to Rule 424
(except for the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the Forms T-1, as to
which we do not express any opinion) complied as to form in all material
respects with the Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated Documents (except as
to the financial statements and schedules and other financial and statistical
data contained therein, as to which we do not express any opinion), at the time
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the Securities Act and,
to our knowledge, no proceedings for a stop order with respect thereto are
pending or threatened under Section 8 of the Securities Act.
III-3
o No other approval, authorization, consent or order of any public
board or body of the United States of America or the States of New York or Texas
(other than in connection or in compliance with the provisions of the blue-sky
laws of the States of New York and Texas, as to which we do not express any
opinion) is legally required for the authorization of the issue and sale by the
Company of the Securities [4 or the Common Stock issuable pursuant to the
Purchase Contracts].
o [1 The Securities have been listed, on official notice of
issuance, on the New York, Chicago and Pacific stock exchanges.]
o Each Principal Subsidiary (as defined below) of the Company has
been incorporated and is validly existing and subsisting as a corporation under
the laws of the jurisdiction of its incorporation; each Principal Subsidiary of
the Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as set forth
in or contemplated by the Prospectus, and to our knowledge, is qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as a whole; and except as
set forth in or contemplated by the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each Principal Subsidiary of
the Company has been authorized and is non-assessable and, to our knowledge, all
such shares are validly issued and fully paid and (except for directors'
qualifying shares) are owned by the Company, directly or through its
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. For purposes of this opinion, the term "Principal
Subsidiary" shall mean, collectively, the following companies: [names of
Principal Subsidiaries].
In the course of the preparation of the information relating to the
Company contained in the Prospectus (including the Incorporated Documents), we
had discussions with certain of its officers and representatives and certain
officers and representatives of certain of its subsidiaries, with other counsel
for the Company, with Deloitte & Touche LLP, the Company's independent certified
public accountants who audited certain of the financial statements contained in
the Incorporated Documents, and with certain of your officers and employees and
your counsel, but we made no independent verification of the accuracy or
completeness of the representations and statements made to us by the Company or
the information included by the Company in the Prospectus (including the
Incorporated Documents) and take no responsibility therefor except as set forth
in paragraph [Insert number of paragraph referring to Sections of the
Prospectus] above. However, our examination of the information relating to the
Company contained in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason to believe
that (except as to financial statements and schedules and other financial and
statistical data and except as to that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any belief) (i) the
Registration Statement, as of the Effective Date, included 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 (ii) the
Prospectus at the time it was filed with the Commission pursuant to Rule 424,
included, or on the date hereof includes an untrue statement of a material fact
III-4
or on such dates 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.
This opinion is limited to the laws of the State of Texas, the
federal laws of the United States of America and, to the extent set forth
herein, the laws of the State of New York and, for purposes of paragraph __
above, the laws of the United Kingdom and the Commonwealth of Australia. As to
all matters of New York law, we have, with your consent, relied upon the opinion
of Xxxxxx Xxxx & Priest LLP, New York, New York, of Counsel to the Company; as
to matters of the law of the United Kingdom, we have, with your consent relied
upon the opinion of X.X. Lean, General Counsel of TXU Europe Limited, and as to
all matters of law of the Commonwealth of Australia we have with your consent
relied upon the opinion of Xxxxx & XxXxxxxx, Melbourne, Commonwealth of
Australia, Counsel to TXU Australia Holdings (Partnership) Limited Partnership.
Very truly yours,
XXXXXXX XXXXXXXX
XXXXXXXXXX LLP
By:
-----------------------------
A Partner
III-5
SCHEDULE IV
-----------
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
New York, New York
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to TXU Corp. (the "Company") in connection
with the issuance and sale by the Company of ____ of its _____________
("Securities") pursuant to the Underwriting Agreement dated ______________ among
the Company and the Representatives of the several Underwriters named therein
(the "Underwriting Agreement").
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, [3 the Indenture] [4 the Remarketing Agreement, the
Pledge Agreement, the Purchase Contract Agreement, the Indenture, the Debt
Securities], and the Securities. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed necessary as a
basis for the conclusions of law contained in the opinions expressed below. We
have relied as to various questions of fact upon the representations and
warranties of the Company contained in the Underwriting Agreement and, where we
deemed appropriate, on certificates of public officials. [3 We have not examined
the Securities, except a specimen thereof, and have relied upon a certificate of
the trustee under the Indenture as to the authentication of the Securities.]
[1,2 We have not examined the Securities, except a specimen thereof, and have
relied upon a certificate of the transfer agent and registrar as to the
execution thereof.] [4 We have not examined the Securities, except a specimen
thereof, and have relied upon a certificate of the trustee under the Indenture
------------------------
1. For use in connection with Common Stock.
2. For use in connection with Preference Stock.
3. For use in connection with Debt Securities.
4. For use in connection with Stock Purchase Units.
IV-1
as to the authentication of the Debt Securities and a certificate of the
Purchase Contract Agent under the Purchase Contract Agreement as to the
authentication of the Type A Securities and Type B Securities.] In our
examination we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as photostatic or certified
copies.
Based on the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that:
o [1,2,3 The Underwriting Agreement] [4 Each of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement, the Purchase
Contracts, the Indenture and the Remarketing Agreement] has been duly
authorized, executed and delivered by the Company.
o [2 The Securities conform as to legal matters with the
statements concerning them in the Prospectus, have been duly and validly
authorized and issued, are fully paid and nonassessable, and are entitled to the
rights, privileges and preferences set forth in the Restated Articles of
Incorporation, as amended, of the Company.]
o [1 The Securities have been duly and validly issued, are fully
paid and non-assessable and conform as to legal matters with the statements
concerning the Securities made in the Prospectus.]
o [3 The Indenture has been duly qualified under the Trust
Indenture Act.] [4 Each of the Indenture and the Purchase Contract Agreement has
been duly qualified under the Trust Indenture Act.]
o [3 The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities, when issued against
payment therefor as contemplated by the Underwriting Agreement, will be entitled
to the benefits of the Indenture; and the Securities (when so issued) and the
Indenture] [4 The Securities have been authorized, executed and delivered by the
Company; the Debt Securities, when issued against payment therefor as
contemplated by the Underwriting Agreement, will be entitled to the benefits of
the Indenture; the Type A Securities and Type B Securities, when issued against
payment therefor as contemplated by the Underwriting Agreement, will be entitled
to the benefits of the Purchase Contract Agreement and the Securities (when so
issued), the Purchase Contract Agreement, the Pledge Agreement, the Purchase
Contracts and the Indenture] [3,4 are legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their respective
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies of
creditors generally and general principles of equity [4 and, with respect to the
Pledge Agreement, subject to any principles of public policy limiting the rights
to enforce the indemnification provisions contained therein].]
o [4 The Common Stock issuable pursuant to the Purchase Contracts
has been validly authorized and reserved for issuance and, when issued and
delivered by the Company in accordance with the provisions of the Purchase
Contract Agreement, the Purchase Contracts and the Pledge Agreement, will be
IV-2
fully paid and non-assessable; the issuance of such Common Stock, the Type A
Securities and the Type B Securities is not subject to preemptive or other
similar rights arising by law, or to the best of our knowledge, otherwise.]
o The statements made in the Prospectus under the captions
[Insert titles of sections describing the Securities in the Prospectus and
Prospectus Supplement], insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
o The Company is not an investment company within the meaning of
the Investment Company Act of 1940, as amended.
o The Registration Statement, as of the Effective Date, and the
Prospectus at the time it was filed with the Commission pursuant to Rule 424
(except for the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the Forms T-1, as to
which we do not express any opinion) complied as to form in all material
respects with the Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated Documents (except as
to the financial statements and schedules and other financial and statistical
data contained therein, as to which we do not express any opinion), at the time
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the Securities Act and,
to our knowledge, no proceedings for a stop order with respect thereto are
pending or threatened under Section 8 of the Securities Act.
o No other approval, authorization, consent or order of any
public board or body of the United States of America or the States of New York
or Texas (other than in connection or in compliance with the provisions of the
blue-sky laws of the States of New York or Texas, as to which we do not express
any opinion) is legally required for the authorization of the issue and sale by
the Company of the Securities [4 , or the Common Stock issuable pursuant to the
Purchase Contracts].
o [1 The Securities have been listed, on official notice of
issuance, on the New York, Chicago and Pacific stock exchanges.]
We herewith confirm as our opinion the statements under the caption
["Certain United States Federal Income Tax Considerations"] in the Prospectus.
In the course of the preparation of the information relating to the
Company contained in the Prospectus (including the Incorporated Documents), we
had discussions with certain of its officers and representatives and certain
officers and representatives of certain of its subsidiaries, with other counsel
for the Company, with Deloitte & Touche LLP, the Company's independent certified
public accountants who audited certain of the financial statements contained in
the Incorporated Documents, and with certain of your officers and employees and
your counsel, but we made no independent verification of the accuracy or
completeness of the representations and statements made to us by the Company or
IV-3
the information included by the Company in the Prospectus (including the
Incorporated Documents) and take no responsibility therefor except as set forth
in paragraph [Insert number of paragraph referring to Sections of the
Prospectus] above. However, our examination of the information relating to the
Company contained in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason to believe
that (except as to financial statements and schedules and other financial and
statistical data and except as to that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any belief) (i) the
Registration Statement, as of the Effective Date, included 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 (ii) the
Prospectus at the time it was filed with the Commission pursuant to Rule 424,
included, or on the date hereof includes an untrue statement of a material fact
or on such dates 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.
This opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and, to the extent set forth
herein, the laws of the State of Texas. We do not hold ourselves out as experts
in the laws of the State of Texas. As to all matters of Texas law, we have, with
your consent, relied upon the opinion of Xxxxxxx Xxxxxxxx Xxxxxxxxxx LLP,
Dallas, Texas, General Counsel for the Company. We believe that you and we are
justified in relying on such opinion.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
IV-4
SCHEDULE V
[Letterhead of Pillsbury Winthrop LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o
Ladies and Gentlemen:
We have acted as counsel to you and the several Underwriters in
connection with the issuance and sale by TXU Corp. (the "Company") of ____ of
its _____________ ("Securities") pursuant to the Underwriting Agreement dated
______________ among the Company and you (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting Agreement.
This opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and, to the extent set forth
herein, the laws of the State of Texas. We do not hold ourselves out as experts
on the laws of the State of Texas. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by Xxxxxxx Xxxxxxxx Xxxxxxxxxx
LLP, Dallas, Texas, General Counsel for the Company, as to the matters covered
in such opinion relating to Texas law.
We have, in addition, examined the documents described in the list of
closing papers as having been delivered to you at the closing and such other
documents and satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to express this opinion. [1,2,3 We have not
examined the Securities, except specimens thereof, and have relied upon a
certificate of the [3 trustee under the Indenture] [1,2 transfer agent and
------------------------
1. For use in connection with Common Stock.
2. For use in connection with Preference Stock.
3. For use in connection with Debt Securities.
4. For use in connection with Stock Purchase Units.
V-1
registrar] as to the authentication of the Securities.] [4 We have not examined
the Securities, except specifications thereof, and have relied upon a
certificate of the Purchase Contract Agent under the Purchase Contract Agreement
as to the authentication of the Type A Securities and the Type B Securities and
a certificate of the trustee under the Indenture as to the authentication of the
Debt Securities.] As to various questions of fact material to this opinion, we
have relied upon representations of the Company and statements in the Prospectus
hereinafter mentioned. In such examination we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us and the
genuineness and conformity to original documents of documents submitted to us as
certified or photostatic copies.
Based upon the foregoing, we are of the opinion that:
o [1,2,3 The Underwriting Agreement] [4 Each of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement, the Purchase
Contracts, the Indenture and the Remarketing Agreement] has been duly
authorized, executed and delivered by the Company.
o [1,2 The Securities [2 conform as to legal matters with the
statements concerning them in the Prospectus,] have been duly and validly
authorized and issued, are fully paid and non-assessable, and are entitled to
the rights, privileges and preferences set forth in the Restated Articles of
Incorporation, as amended, of the Company.]
o [1 The Securities have been duly and validly issued, and are
fully paid and non-assessable.]
o [3 The Indenture has been duly qualified under the Trust
Indenture Act.] [4 Each of the Indenture and the Purchase Contract Agreement has
been duly qualified under the Trust Indenture Act.]
o [3 The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities, when issued against
payment therefor as contemplated by the Underwriting Agreement, will be entitled
to the benefits of the Indenture; and the Securities (when so issued) and the
Indenture] [4 The Securities have been authorized, executed and delivered by the
Company; the Debt Securities, when issued against payment therefor as
contemplated by the Underwriting Agreement, will be entitled to the benefits of
the Indenture; the Type A Securities and Type B Securities, when issued against
payment therefor as contemplated by the Underwriting Agreement, will be entitled
to the benefits of the Purchase Contract Agreement and the Securities (when so
issued), the Purchase Contract Agreement, the Pledge Agreement, the Purchase
Contracts and the Indenture] [3,4 are legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their respective
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies of
creditors generally and general principles of equity [4 and, with respect to the
Pledge Agreement, subject to any principles of public policy limiting the rights
to enforce the indemnification provisions contained therein].]
o [4 The Common Stock issuable pursuant to the Purchase Contracts
has been validly authorized and reserved for issuance and, when issued and
delivered by the Company in accordance with the provisions of the Purchase
V-2
Contract Agreement, the Purchase Contracts and the Pledge Agreement, will be
fully paid and non-assessable; the issuance of such Common Stock, the Type A
Securities and the Type B Securities is not subject to preemptive or other
similar rights arising by law, or to the best of our knowledge, otherwise.]
o The statements made in the Prospectus under the captions
[Insert titles of sections describing the Securities in the Prospectus and
Prospectus Supplement], insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
o No other approval, authorization, consent or order of any
public board or body of the United States of America or the States of New York
or Texas (other than in connection or in compliance with the blue-sky laws of
the States of New York and Texas) is legally required for the issuance and sale
by the Company of the Securities [4 or the Common Stock issuable pursuant to the
Purchase Contracts, as contemplated in the Underwriting Agreement].
o The Registration Statement, at the Effective Date, and the
Prospectus at the time it was filed with the Commission pursuant to Rule 424
(except in each case as to the financial statements and schedules and other
financial and statistical data contained or incorporated by reference therein
and except for that part of the Registration Statement that constitutes the
Statements of Eligibility and Qualification on Form T-1, as to which we do not
express any opinion) complied as to form in all material respects with the
Securities Act and the applicable instructions, rules and regulations of the
Commission thereunder.
o [1 The Securities have been listed, on official notice of
issuance, on the New York, Chicago and Pacific stock exchanges.]
In passing upon the form of the Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor, except insofar
as such statements relate to us and as set forth in paragraph __ above. In the
course of the preparation by the Company of the Registration Statement and the
Prospectus, we have had discussions with certain of the Company's officers and
representatives, and representatives of certain of its subsidiaries, with
counsel for the Company, with Deloitte & Touche LLP, the Company's independent
public accountants who audited certain of the financial statements contained in
the Incorporated Documents, and with certain of your representatives. Our
examination of the Registration Statement and the Prospectus and our discussions
did not disclose to us any information which gives us reason to believe that at
the Effective Date the Registration Statement 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, at the time it was filed with the Commission pursuant to Rule 424,
or at the date hereof, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as to the
financial statements and schedules or other financial or statistical data
contained or incorporated by reference in the Registration Statement or
V-3
Prospectus or as to that part of the Registration Statement that constitutes the
Statements of Eligibility and Qualification on Form T-1.
This opinion is given to you solely for your use in connection with
the Underwriting Agreement and the transactions contemplated thereunder and may
not be relied upon by any other person or for any other purpose without our
express written consent. This opinion is expressed as of the date hereof, and we
do not assume any obligation to update or supplement it to reflect any fact or
circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
V-4
