Exhibit 1
UTILICORP UNITED INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
, 199
Name(s) of [Co-]Representative(s)
As Representative(s) of the
several Underwriters
c/o Name
Address
Ladies and Gentlemen:
From time to time UtiliCorp United Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule 1 to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of
such Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") on
Form S-3; such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters have been declared effective by the Commission in such form;
no other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus");
the various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-I, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any
2
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the
3
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), as applicable, and the rules
and regulations of the Commission thereunder, and do not and will not, as
of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries (each a
"Subsidiary" and, collectively, the "Subsidiaries") has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to
the Company and its Subsidiaries taken as a whole, or sustained since the
date of the latest audited financial statements included or 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 set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any material change in the capital stock, or material increase in the
short-term debt or long-term debt, of the Company or any of its
Subsidiaries or any material adverse change, or any development involving,
or which may reasonably be expected to involve, a prospective material
adverse change in or affecting the condition (financial or other), results
of operations, business, prospects, net worth or assets of the Company and
its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) This Agreement, the Indenture, the Designated Securities and any
applicable Pricing Agreement have been duly authorized by the Company and
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(f) The Indenture (assuming due execution and delivery thereof by the
trustee thereto (the "Trustee") and the
4
Designated Securities (when executed by the Company and authenticated in
accordance with the Indenture and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Securities), will be
the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). The Designated Securities
(when executed by the Company and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the purchaser
thereof) will be entitled to the benefits of the Indenture (subject to the
exceptions set forth in the preceding sentence). The Indenture has been
qualified under the Trust Indenture Act;
(g) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full power
and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary. All of the
outstanding shares of capital stock of the Company, and all of the
outstanding shares of capital stock of each Subsidiary, have been duly
authorized and validly issued, are fully paid and nonassessable and are
owned directly or indirectly by the Company (except for United Gas Company
Ltd., of which the Company owns seventy-five percent of the outstanding
shares of capital stock), free and clear of any claim, lien, encumbrance or
security interest except as otherwise disclosed in writing to the
Representatives;
(h) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution or delivery hereof or of any Pricing
Agreement or consummation of the transactions contemplated hereby or by any
Pricing Agreement result in a violation of, or constitute a default under,
the certificate of incorporation, by-laws or other governing documents of
the Company or any of its Subsidiaries, or any agreement, indenture or
other instrument to which the Company or any of its Subsidiaries is a party
or by which any of them is bound, or to which any of their properties is
subject, nor will the performance by the Company of its obligations
hereunder violate any law, rule, administrative regulation
5
or decree of any court or any governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their properties,
or result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property or asset of the Company or any of its
Subsidiaries which would be material to the Company and its Subsidiaries
taken as a whole. Except for permits and similar authorizations required
under the Act, the Trust Indenture Act, the Federal Power Act, the laws of
the States of Colorado and Michigan and the securities or Blue Sky laws of
certain jurisdictions, and except for such permits and authorizations as
have been obtained, no consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required in
connection with the consummation of the transactions contemplated by this
Agreement and any applicable Pricing Agreement;
(i) The Company and its Subsidiaries have good and marketable title
to all material real and personal property owned by them, in each case free
and clear of all mortgages, liens, encumbrances and defects, except such as
are described or referred to in the Prospectus as amended or supplemented
or such as do not materially affect the values of such property and do not
interfere with the use made or proposed to be made of such property by the
Company or such Subsidiaries; and any real property and buildings held
under lease by the Company and its Subsidiaries are held by them under
valid, existing and enforceable leases with such exceptions as are not
material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or such Subsidiaries;
(j) Except as described in the Prospectus as amended or supplemented,
there is no litigation or governmental proceeding to which the Company or
any of its Subsidiaries is a party or to which any property of the Company
or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
Subsidiaries which might result in any material adverse change in the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole;
(k) Neither the Company nor any Subsidiary is in violation of any
law, ordinance, governmental rule or regulation or court decree to which it
is subject which violation would have a material adverse effect on the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole;
(l) The Company has not distributed and will not distribute prior to
the Closing Date any offering material
6
in connection with the offering and sale of the Designated Securities other
than the Registration Statement, the Prospectus, the Prospectus Supplement
or other materials, if any, permitted by the Act;
(m) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and
(n) The accountants who have audited and reported upon the financial
statements filed with the Commission as part of the Registration Statement
and the Prospectus as amended or supplemented are independent accountants
as required by the Act and the regulations thereunder. The consolidated
financial statements and schedules (including the related notes) included
or incorporated by reference in the Registration Statement or Prospectus as
amended or supplemented fairly present the consolidated financial position,
the results of operations and changes in financial condition of the entity
or entities to which such statements relate at the respective dates and for
the respective periods to which they apply. Such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied, except as set forth in the Registration Statement and
Prospectus as amended or supplemented. The other financial and statistical
information and data set forth in the Registration Statement and the
Prospectus as amended or supplemented are fairly presented and have been
prepared on a basis consistent with such financial statements and the books
and records of the entities purported to be shown thereby.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the
7
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
8
to the Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
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 under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the
9
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which mature more than one year after
such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the 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 and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture or supplement thereto, any Blue Sky and/or Legal Investment Memoranda
and any 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 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and/or legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) any filing
fees incident to 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, issuing and delivering the Securities; (vii) the fees and expenses of
any trustee and any agent of any trustee and the fees and disbursements of
counsel for any trustee in connection with any Indenture and the Securities; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder
10
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; 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
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, such counsel being able to rely on the opinion, dated
the Time of Delivery for such Designated Securities, of Xxxxxxxxx Xxxxxxx
Xxxxxxx Weary & Xxxxxxxx X.X. or on the opinions, dated the Time of
Delivery for such Designated Securities, of local counsel, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxxxx Xxxxxxx Xxxxxxx Weary & Xxxxxxxx X.X., counsel for the
Company, shall have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives and their counsel, to the
effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, has
duly obtained or has succeeded to and holds all material franchises
and other governmental and corporate authority necessary to carry on
the public utility business in which it is engaged and to own, lease
and operate the properties in use in such business and the maintenance
of such franchises and other authority is not subject to any
burdensome restriction or condition of an unusual
11
character (except as described in the Registration Statement);
(ii) Each Subsidiary of the Company (other than foreign
subsidiaries has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in
good standing in each jurisdiction in which the failure so to qualify
would have a materially adverse effect on the condition (financial or
other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(iii) The Company has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement, the
Pricing Agreement with respect to the Designated Securities and the
Indenture, to borrow money as contemplated in this Agreement, the
Pricing Agreement with respect to the Designated Securities and the
Indenture, and to issue, sell and deliver the Designated Securities;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery by
the Trustee) constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general principles
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law);
(vi) The orders of the Federal Energy Regulatory Commission, the
Colorado Public Utilities Commission and the Michigan Public Service
Commission authorizing the issuance and sale of the Designated
Securities are in effect at the Time of Delivery and no other
approval, authorization, consent or order of any federal, state or
local commission or governmental authority (other than under state
securities or Blue Sky laws as to which such counsel is not called
upon to express an opinion) is required for the issuance and sale of
the Designated Securities or the performance by the Company of its
other obligations under this Agreement or any applicable Pricing
Agreement, except
12
such as are specified, obtained and in effect, and the issuance and
sale of the Designated Securities hereunder are in conformity with
each such approval, authorization, consent and order;
(vii) After due inquiry, such counsel does not know of any legal
or governmental proceeding pending or threatened to which the Company
or its Subsidiaries is a party or to which any of the properties of
the Company is subject that is required to be described in the
Registration Statement or the Prospectus as amended or supplemented
and is not so described or of any contract or other document that is
required to be described in the Registration Statement or the
Prospectus as amended or supplemented or to be filed as an exhibit to
the Registration Statement that is not described or filed as required;
(viii) The statements made in the Registration Statement and the
Prospectus as amended or supplemented under the captions "Description
of Securities," "Description of Senior Notes" and "Plan of
Distribution," in Item 15 of the Registration Statement, in the
Company's most recent Annual Report or Form 10-K under the captions
"Business" (but only as to fuel supply contracts) and "Legal
Proceedings," insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings;
(ix) The Designated Securities, when executed by the Company and
authenticated in accordance with the terms of the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the
Trustee), and issued and paid for pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except that such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general principles
of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law);
(x) The execution, delivery and performance by the Company of
this Agreement and the Pricing Agreement with respect to the
Designated Securities will not contravene any provision of applicable
law or the certificate of incorporation or the by-laws of the
13
Company or any agreement or other instrument binding upon the Company;
(xi) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus
as amended or supplemented and the outstanding shares of capital stock
of the Company have been duly authorized and are validly issued, fully
paid and nonassessable;
(xii) The documents incorporated by reference in the Prospectus as
amended or supplemented (except for the financial statements and
related schedules therein as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and they have no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained,
in the case of a registration statement which became effective under
the Act, 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, in the case of other documents
which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (except for the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder; they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Time of Delivery for the Designated Securities
(except for the financial statements and related schedules therein, as
to which such counsel need express no opinion) 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, as of its date, the Prospectus as
amended or supplemented or any
14
further amendment or supplement thereto made by the Company prior to
the Time of Delivery for the Designated Securities (except for the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading or that, as of the Time of Delivery for the
Designated Securities, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
for the Designated Securities (except for the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In giving the foregoing opinions, such counsel may rely on (1) the opinions
of local counsel, with respect to the opinion set forth in paragraph (i) above,
(2) the opinions heretofore rendered by Xxxx X. Xxxxxxxxxxx, Esq. and Messrs.
Gage & Xxxxxx with respect to the opinion set forth in paragraph (xi) above and
(3) the opinions of local counsel and the opinion of XxXxxxxx Xxxxxxx &
Harkaway, P.C., with respect to the opinion set forth in paragraph (vi) above.
Such counsel shall state that you and they are justified in relying on such
opinions, policies and certificates. With respect to the opinions set forth in
paragraphs (v) and (ix) above, such counsel may assume that the law of New York
is identical to the law of Missouri in all respects material to such opinions.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
Xxxxxx Xxxxxxxx LLP and any of the other independent accountants of the
Company or the Subsidiaries who have certified the financial statements of
the Company and/or the Subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing
15
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective date,
and a letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such Time
of Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any 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 set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been any material change in the capital stock, or material increase in the
short-term debt or long-term debt of the Company or any of its Subsidiaries
or any change, or any development involving, or which may reasonably be
expected to involve, a prospective change in or affecting the condition
(financial or other), results of operations, business, prospects, net worth
or assets of the Company and its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preference stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implication, its rating of
any of the Company's debt securities or preference stock;
(g) There shall have been furnished to you the opinion (addressed to
you, as Representatives of the several Underwriters) of XxXxxxxx, Xxxxxxx &
Harkaway, P.C., special regulatory counsel for the Company, dated the Time
of Delivery for the Designated Securities and in form and substance
satisfactory to the Representatives and their
16
counsel, to the effect that the statements in the Company's most recent
Annual Report on Form 10-K under the caption "Regulation" which relate to
Federal Energy Regulatory Commission matters insofar as such statements
constitute a summary of the legal matters, documents and proceeding
referred to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings;
(h) The Federal Energy Regulatory Commission, the Public Utilities
Commission of the State of Colorado, the Michigan Public Service Commission
and any other commission or governmental authority having jurisdiction over
any of the Company's public utility businesses shall have issued all
approvals, authorizations, consents and orders (the "Regulatory Actions")
required thereby for the issuance and sale of the Designated Securities and
the performance by the Company of its other obligations under this
Agreement and the Pricing Agreement relating to such Designated Securities,
each Regulatory Action shall be in effect, no proceedings to suspend the
effectiveness of any Regulatory Actions shall be pending or threatened, no
Regulatory Action shall contain any provision or condition that is
unacceptable to the Underwriters, and the issuance and sale of the
Designated Securities to the Underwriters hereunder shall be in conformity
with each Regulatory Action; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of the chief executive officer or the chief
financial officer of the Company (or such other officer as is acceptable to
you) satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a), (e) and (i) of this Section and as to
such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions 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, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and 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
17
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions 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, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and 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, 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, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above 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 such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
18
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection 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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions 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
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
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 of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other 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 received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other 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 subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or
19
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more
20
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company.
10. This Agreement and any applicable Pricing Agreement shall be subject
to termination in the absolute discretion of the Representatives, without
liability on the part of any Underwriter of the Designated Securities relating
to such Pricing Agreement by notice to the Company, if on or after the date of
such Pricing Agreement there shall have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general
21
moratorium on commercial banking activities in New York or Missouri declared by
either federal or state authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war if the effect of any such event specified in this
Clause (iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, 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 any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: President; provided, however, that any
notice to an Underwriter
22
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter, at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 11 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, 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 or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
16. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto 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.
If the foregoing is in accordance with your understanding, please sign and
return to us six (6) counterparts hereof.
Very truly yours,
UtiliCorp United Inc.
By:___________________________
Accepted as of the date hereof:
[Name(s) of [Co-]Representative(s)]
By:______________________________________
[Name]
On behalf of each of the Underwriters
23
ANNEX I
PRICING AGREEMENT
Name(s) of [Co-Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Name
Address
, 199
Ladies and Gentlemen:
UtiliCorp United Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _____________, 199__ (the "Underwriting
Agreement"), between the Company on the one hand and [Name(s)] on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 13
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
The statements set forth in the [first and second sentences in the last
paragraph] on the cover page of the Prospectus Supplement dated the date hereof
relating to the Designated Securities (the "Prospectus Supplement"), in the
paragraph containing stabilization information on page S-2 of the Prospectus
Supplement and in the [first and second paragraphs and in the second sentence
of the fourth paragraph] under the caption "UNDERWRITING" on page S-3 of the
Prospectus Supplement constitute the only information furnished by and on behalf
of the Underwriters through the Representatives as such information is referred
to in Sections 8 and 9 of the Underwriting Agreement.
If the foregoing is in accordance with your understanding, please sign and
return to us six (6) counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
UtiliCorp United Inc.
By:______________________________
Accepted as of the date hereof:
[Name(s) of [Co-]Representative(s)]
By: ______________________________________
[Name]
On behalf of each of the Underwriters
2
SCHEDULE I
Principal
amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
$
_____________
Total $
=============
3
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if
any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
__% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if
any, from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House funds
INDENTURE:
Indenture, dated as of November 1, 1990, between the Company and The First
National Bank of Chicago, as Trustee, as supplemented by the Supplemental
Indenture, dated as of , 199
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
4
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
, %, and if] redeemed during the 12-month period beginning
,
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$] principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest].
5
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES INSERT -
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest rate
will be adjusted on , and to a rate not less than
% of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT -
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , and ]
[to an annual rate of % above the average rate for -year [month]
[securities] [certificates of deposit] issued by and [insert
names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills plus %
of Interest Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for -month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); (from and
thereafter the rate will be the then current interest yield equivalent plus
% of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
6
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
7
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, each of the
independent accountants shall furnish letters to the Underwriters to the effect
that, severally:
(i) They are independent certified public accountants with respect to
the Company and/or its Subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and/or the Subsidiaries audited and
reported upon by such accountants and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and the
Exchange Act and the regulations thereunder;
(iii) With respect to the entity or entities for which such
accountants have certified the financial statements of the Company and/or
the Subsidiaries included or incorporated by reference in the Registration
Statement (hereinafter, with respect to each of such accountants referred
to as an "Audited Entity"), they have performed specified procedures, not
constituting an audit, including a reading of all of the available interim
consolidated financial statements of the Audited Entity since the end of
the most recent fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of the Audited
Entity and certain of its subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated financial
statements incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented and all of the available interim
unaudited consolidated financial statements of the Audited Entity since the
end of the most recent fiscal year, and such other inquiries and procedures
as may be specified in such letter, and on the basis of such inquiries and
procedures nothing came to such accountant's attention that caused them to
believe that: (A) the unaudited consolidated financial statements of the
Audited Entity incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the rules and regulations thereunder or were not fairly
presented on a basis substantially consistent with that of the
corresponding audited financial statements incorporated by reference
therein, or (B) at a specified date not more than five days prior to the
date of such letter, there was any change in the outstanding capital stock
(in the case of a corporation) of the Audited Entity or consolidated
long-term debt of the Audited Entity, or any increase in preferred stock of
the Audited Entity, in each case as compared with
the amounts shown on the most recent consolidated balance sheet of the
Audited Entity incorporated by reference in the Registration Statement and
Prospectus as amended or supplemented, except in each such case as set
forth in or contemplated by the Registration Statement and Prospectus as
amended or supplemented or except for such exceptions enumerated in such
letter as shall have been agreed to by the Underwriters and the Company;
and
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented, and the limited procedures referred
to in clause (iii) above, such accountants have carried out certain other
specified procedures, not constituting an audit, with respect to certain
financial information which is included or incorporated by reference in the
Registration Statement and Prospectus as amended or supplemented, which are
specified by the Underwriters or their counsel, and have found such
financial information to be in agreement with the relevant accounting,
financial and other records of the Audited Entity identified in such
letter.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
2
