EXHIBIT 1.3
AMEREN CORPORATION
-----------
SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
____________, 200_
[Names of Underwriters]
c/o [Name of Lead Underwriter]
[Address]
Ladies and Gentlemen:
Ameren Corporation, a Missouri corporation (the COMPANY), hereby confirms
its agreement with you, as underwriters (the "Underwriters"), with respect to
the issuance and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of shares of Common
Stock, $.01 par value per share, of the Company (COMMON Stock) set forth in
Schedule I attached hereto, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 1(b) hereof to purchase all or any part of _______ additional shares of
Common Stock to cover over-allotments, if any. The aforesaid _______ shares of
Common Stock (the INITIAL SECURITIES) to be purchased by the Underwriters and
all or any part of the ______ shares of Common Stock subject to the option
described in Section 1(b) hereof (the OPTION SECURITIES) are hereinafter called,
collectively, the SECURITIES.
1. PURCHASE AND SALE.
(a) INITIAL SECURITIES. Upon the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter and each Underwriter
agrees, at the time and place herein specified, to purchase from the Company,
severally and jointly, at the price per share set forth in Schedule II attached
hereto, the number of Initial Securities set forth in Schedule I opposite the
name of such Underwriter.
(b) OPTION SECURITIES. In addition, on the basis of the
representations and warranties herein contained, and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional _______
shares of Common Stock at the price per share set forth in Schedule II, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part, from time to time, only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon written notice by the Underwriters
to the Company on any business day during such 30-day period setting forth the
number of Option Securities as to which the several Underwriters are exercising
the option and
the time and date of payment and delivery for such Option Securities. Any such
time and date of delivery (each, a DATE OF DELIVERY) shall be determined by the
Underwriters, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time (as defined
herein). If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Securities set forth in Schedule I
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Underwriters in
their discretion shall make to eliminate any sales or purchases of fractional
shares. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. (the NYSE) is open for bidding.
2. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company represents
and warrants to the several Underwriters as of the date hereof, as of the
Closing Date referred to in Section 3(b) hereof and as of each Date of Delivery,
if any, referred to in Section 1(b) hereof, and covenants and agrees with the
several Underwriters that:
(a) FILING OF REGISTRATION STATEMENT AND ANY PRELIMINARY PROSPECTUS
WITH SEC. The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the 1933 ACT), and has filed with the
Securities and Exchange Commission (the SEC) the Registration Statement (as
defined below) and each Preliminary Prospectus (as defined below) relating to
the Securities, if any, required to be filed pursuant to Rule 424 under the 1933
Act; and the Registration Statement has been declared effective by the SEC under
the 1933 Act and meets the requirements set forth in paragraph (a)(1)(ix) or
(a)(1)(x) of Rule 415 under the 1933 Act and complies in all other material
respects with such Rule 415. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or threatened by the
SEC, and any request on the part of the SEC for additional information has been
complied with by the Company. For purposes of this Agreement, the following
terms used herein shall have the following meanings: (i) REGISTRATION STATEMENT
shall mean the registration statement on Form S-3 (No. 333-______) filed by the
Company with the SEC for the registration under the 1933 Act of, among other
securities, certain securities of the Company, including the Securities, as
amended and supplemented to the date of this Agreement and including the
exhibits thereto, and shall be deemed to include the Incorporated Documents (as
defined below); (ii) INCORPORATED DOCUMENTS shall mean the documents filed by
the Company with the SEC under the Securities Exchange Act of 1934, as amended
(the 1934 ACT), that are, or are deemed to be, incorporated by reference in the
Preliminary Prospectus or the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act; (iii) PRELIMINARY PROSPECTUS shall mean (A) any prospectus
included in the Registration Statement prior to the initial Effective Date (as
defined below), or (B) any supplement to the prospectus included in the
Registration Statement at the initial Effective Date, as such prospectus may be
amended or supplemented as of the date thereof, used in connection with the
offering and sale of the Securities (other than making confirmations of sales of
the Securities) filed with the SEC pursuant to Rule 424 under the 1933 Act, and
shall in each case be deemed to include the Incorporated Documents; and (iv)
EFFECTIVE DATE shall mean the later of (x) the date or time that the
Registration Statement or any post-effective amendment thereto was declared
effective by the SEC under the 1933 Act and (y) the date that the Company's most
recent Annual Report on Form 10-K was filed with the SEC under the 1934 Act. For
purposes of this Agreement, the words "amend," "amendment," "amended,"
"supplement" or "supplemented" with respect to the Registration Statement or the
Prospectus shall mean (i) amendments or supplements to the Registration
Statement or the Prospectus and (ii) Incorporated Documents, in each case filed
with the SEC or sent to
2
prospective purchasers of the Securities after the date of this Agreement and
prior to the completion of the distribution of the Securities; PROVIDED,
HOWEVER, that any supplement to the Prospectus filed with the SEC pursuant to
Rule 424(b) under the 1933 Act with respect to an offering of securities of the
Company other than the Securities shall not be deemed to be a supplement to, or
a part of, the Prospectus.
(b) REGISTRATION STATEMENT; PROSPECTUS; INCORPORATED DOCUMENTS. (i)
The Registration Statement, at the Effective Date, any Preliminary Prospectus,
at the time it was filed with the SEC pursuant to Rule 424(b) under the 1933 Act
and when delivered to you for your use in marketing the Securities, and the
Prospectus, at the time it is filed with the SEC pursuant to Rule 424(b) under
the 1933 Act and when delivered to you for your use in making confirmations of
sales of the Securities, complied and will comply, as the case may be, in all
material respects with the applicable requirements of the 1933 Act, the Trust
Indenture Act of 1939, as amended (the 1939 ACT), and, in each case, the rules
and regulations of the SEC thereunder; (ii) the Registration Statement, at the
Effective Date, did not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) the Prospectus, at the time it is filed
with the SEC pursuant to Rule 424(b) under the 1933 Act, when delivered to you
for your use in making confirmations of sales of the Securities and at the
Closing Date (and, if any Option Securities are purchased, at each Date of
Delivery), will not and any Preliminary Prospectus, at the time it was filed
with the SEC pursuant to Rule 424(b) under the 1933 Act and when delivered to
you for your use in marketing the Securities, did not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (iv) each Incorporated Document, at the time
it was or is filed with the SEC pursuant to the 1934 Act, complied and will
comply, as the case may be, in all material respects with the applicable
requirements of the 1934 Act and the rules and regulations of the SEC thereunder
and, at such times, did not contain and will not contain, as the case may be, an
untrue statement of a material fact and did not omit and will not omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that, in the case of clauses (i), (ii) and (iii) above, the Company
makes no representation or warranty as to information you furnish in writing to
the Company expressly for use in the Prospectus, which for purposes of this
Agreement shall be deemed to consist solely of the statements in ______________
(collectively, the UNDERWRITER INFORMATION). For purposes of this Agreement,
PROSPECTUS shall mean the prospectus included in the Registration Statement at
the initial Effective Date, as such prospectus may be amended or supplemented
(including by Incorporated Documents) as of the date hereof, including by a
supplement thereto specifying the terms of the Securities and the plan of
distribution thereof (the PROSPECTUS SUPPLEMENT), as first filed with the SEC
pursuant to Rule 424(b) under the 1933 Act.
(c) SECURITIES. The Securities have been duly authorized by the
Company for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued, fully
paid and nonassessable; the Common Stock conforms in all material respects to
all statements relating thereto contained in the Prospectus and such description
conforms to the rights set forth in the instruments defining the same; no holder
of the Securities will be subject to personal liability solely by reason of
being such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company or any
of its subsidiaries.
3
(d) AGREEMENT. This Agreement has been duly authorized, executed and
delivered by the Company.
(e) DUE INCORPORATION AND QUALIFICATION OF THE COMPANY. The Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Missouri, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified or to be
in good standing would not reasonably be expected to have a material adverse
effect on the general affairs, management, financial position, stockholders'
equity or consolidated results of operations of the Company and its
subsidiaries, taken as a whole (a MATERIAL ADVERSE EFFECT).
(f) DUE INCORPORATION AND QUALIFICATION OF SUBSIDIARIES. Each
subsidiary (as defined in Rule 405 under the 0000 Xxx) of the Company has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus; each such subsidiary is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification, except to the extent that the failure to be so qualified or
to be in good standing would not reasonably be expected to have a Material
Adverse Effect; and all of the issued and outstanding common stock of each
subsidiary of the Company has been duly authorized and validly issued and is
fully paid and nonassessable, and all of such common stock (except with regard
to 40% of the common stock of Electric Energy, Inc.) is owned by the Company,
directly or indirectly, free from liens, encumbrances and defects of title.
(g) MATERIAL CHANGES. Neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited consolidated
financial statements incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as described in
the Prospectus; and, since the respective dates as of which information is given
in the Prospectus, (i) neither the Company nor any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that are material to
the Company and its subsidiaries, taken as a whole, and (ii) there has not been
any change in the stockholders' equity (except for regular quarterly dividends,
retained earnings and newly issued shares issued pursuant to the Company's
dividend reinvestment and stock purchase plan and the Company's 401(k) plans) or
long-term debt of the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or consolidated
results of operations of the Company and its subsidiaries, taken as a whole, in
each case, otherwise than as described in the Prospectus.
(h) NO CONFLICTS; 1935 ACT ORDER IN FULL FORCE AND EFFECT; NO OTHER
CONSENTS REQUIRED. The issue and sale of the Securities by the Company, and the
compliance by the Company with all of the provisions of this Agreement, and the
consummation of the transactions herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is
4
a party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of the
articles of incorporation or by-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; the execution, delivery
and performance of this Agreement will not require the approval or consent of
any holder or trustee of any debt or other obligations or securities of the
Company which will not have been obtained; the SEC has issued its final order
under the Public Utility Holding Company Act of 1935, as amended (the 1935 ACT
ORDER), authorizing the issuance and sale of the Securities by the Company; the
1935 Act Order is in full force and effect and is sufficient to authorize the
transactions contemplated by this Agreement; no other consent, approval,
authorization, order, registration, filing or qualification of or with any court
or governmental agency or body is required for the issue and sale of the
Securities by the Company, or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have been obtained
under the 1933 Act and the 1939 Act and such consents, approvals,
authorizations, orders, registrations, filings or qualifications as may be
required under state securities or blue sky laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(i) CAPITAL STOCK. The Company has an authorized capitalization as
set forth in the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable.
(j) NO DEFAULTS. Neither the Company nor any of its subsidiaries is
(i) in violation of its articles of incorporation or by-laws, (ii) to the best
knowledge of the Company, after due inquiry, in violation of any law, ordinance,
administrative or governmental rule or regulation, the violation of which would
reasonably be expected to have a Material Adverse Effect, or of any decree of
any court or governmental agency or body having jurisdiction over the Company or
such subsidiaries, or (iii) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound.
(k) LITIGATION. Other than as described in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject that, if determined adversely to the Company or that
subsidiary, would individually or in the aggregate reasonably be expected to
have a Material Adverse Effect, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(l) FINANCIAL STATEMENTS. The consolidated financial statements of
the Company incorporated by reference in the Registration Statement and the
Prospectus have been prepared in conformity with generally accepted accounting
principles in the United States and fairly present the financial position of the
Company as of the dates set forth therein.
(m) INDEPENDENT PUBLIC ACCOUNTANTS. PricewaterhouseCoopers LLP (the
ACCOUNTANTS), who have audited certain financial statements of the Company and
its subsidiaries, are independent public accountants as required by the 1933 Act
and the rules and regulations of the SEC thereunder.
5
(n) INVESTMENT COMPANY ACT. The Company is not, and, after giving
effect to the offering and sale of the Securities, the Company will not be, an
"investment company," or an entity "controlled" by an investment company, as
such terms are defined in the Investment Company Act of 1940, as amended.
(o) ENVIRONMENTAL MATTERS. Except as described in the Prospectus,
each of the Company and its subsidiaries (i) is in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii)
has received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in compliance
with all terms and conditions of any such permit, license or approval, except as
to clauses (i) and (iii) where such non-compliance with Environmental Laws or
failure to comply with the terms and conditions of required permits, licenses or
approvals would not, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
3. OFFERING; PAYMENT AND DELIVERY OF SECURITIES.
(a) OFFERING. The Underwriters have advised the Company that they
propose to make a public offering of the Securities as soon after the
effectiveness of this Agreement as in their judgment is advisable. The
Underwriters have further advised the Company that they will offer the
Securities to the public at the initial public offering price per share for the
Securities set forth in Schedule II.
(b) PAYMENT AND DELIVERY OF SECURITIES. Payment of the purchase
price for, and delivery of certificates for, the Initial Securities shall be
made at the offices of Pillsbury Winthrop LLP (UNDERWRITERS' COUNSEL), Xxx
Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be
agreed upon by the Underwriters and the Company, at 9:00 a.m. (New York City
time) on the third (fourth, if the pricing occurs after 4:30 p.m. (New York City
time) on any given day) business day after the date hereof, or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the CLOSING DATE).
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriters and
the Company, on each Date of Delivery as specified in the written notice from
the Underwriters to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
______________ for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized ____________ to execute this Agreement on its behalf
and, for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Initial Securities and the Option Securities, if
any, which it has agreed to purchase. _______________, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Date or any Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
6
Certificates for the Initial Securities and the Option Securities,
if any, shall be in such denominations and registered in such names as the
Underwriters may request in writing at least one full business day before the
Closing Date or any Date of Delivery, as the case may be. The certificates for
the Initial Securities and the Option Securities, if any, will be made available
for examination and packaging by the Underwriters in New York City not later
than 10:00 a.m. (New York City time) on the business day prior to the Closing
Date or any Date of Delivery, as the case may be.
4. COVENANTS OF COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) FILING OF PROSPECTUS. The Company will promptly transmit copies
of the Prospectus, and any amendments or supplements thereto, to the SEC for
filing pursuant to Rule 424(b) under the 1933 Act.
(b) COPIES OF REGISTRATION STATEMENT AND PROSPECTUS; NOTICE OF STOP
ORDERS. The Company will deliver to the Underwriters and to Underwriters'
Counsel (i) one conformed copy of the Registration Statement as originally
filed, including copies of exhibits thereto (other than any exhibits
incorporated by reference therein), (ii) conformed copies of any amendments and
supplements to the Registration Statement, including copies of the Incorporated
Documents (other than exhibits thereto), and (iii) a conformed copy of each
consent and certificate included or incorporated by reference in, or filed as an
exhibit to, the Registration Statement as so amended and supplemented; the
Company will deliver to the Underwriters as soon as practicable after the date
of this Agreement as many copies of the Prospectus as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act; the Company
will promptly advise the Underwriters of the issuance of any stop order under
the 1933 Act with respect to the Registration Statement (as amended or
supplemented) or the institution of any proceedings therefor, or the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, of which the
Company shall have received notice or otherwise have knowledge prior to the
completion of the distribution of the Securities; and the Company will use its
best efforts to prevent the issuance of any such stop order and, if issued, to
secure the prompt removal thereof.
(c) FILING OF AMENDMENTS OR SUPPLEMENTS. During the period when a
prospectus relating to any of the Securities is required to be delivered under
the 1933 Act by any Underwriter or any dealer, the Company will not file any
amendment or supplement to the Registration Statement, the Prospectus (or any
other prospectus relating to the Securities filed pursuant to Rule 424(b) under
the 1933 Act that differs from the Prospectus as filed pursuant to such Rule
424(b)) or any Incorporated Document to which the Underwriters or Underwriters'
Counsel shall reasonably object.
(d) COMPLIANCE WITH 1933 ACT. During the period when a prospectus
relating to any of the Securities is required to be delivered under the 1933 Act
by any Underwriter or any dealer, the Company will comply, at its own expense,
with all requirements imposed by the 1933 Act, as now and hereafter amended, and
by the rules and regulations of the SEC thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealing in
the Securities during such period in accordance with the provisions hereof and
as contemplated by the Prospectus.
7
(e) CERTAIN EVENTS AND AMENDMENTS OR SUPPLEMENTS. If, during the
period when a prospectus relating to any of the Securities is required to be
delivered under the 1933 Act by any Underwriter or any dealer, (i) any event
relating to or affecting the Company or of which the Underwriters shall advise
the Company in writing shall occur as a result of which, in the opinion of the
Underwriters or in the opinion of the Company, the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or (ii) it
shall be necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the 1933 Act, the 1934 Act or the 1939 Act or the
rules and regulations of the SEC thereunder, the Company will forthwith at its
expense prepare and furnish to the Underwriters a reasonable number of copies of
such amendment or supplement that will correct such statement or omission or
effect such compliance. Neither the Underwriters' consent to, nor the
Underwriters' delivery of, any such amendment or supplement prior to the Closing
Date shall constitute a waiver of any of the conditions set forth in Section 5
hereof.
(f) BLUE SKY QUALIFICATIONS. During the period when a prospectus
relating to any of the Securities is required to be delivered under the 1933 Act
by any Underwriter or any dealer, the Company will furnish such proper
information as may be lawfully required and otherwise cooperate in qualifying
the Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as the Underwriters may reasonably designate and will file and
make in each year such statements or reports as are or may be reasonably
required by the laws of such jurisdictions; PROVIDED, HOWEVER, that the Company
shall not be required to qualify as a foreign corporation, qualify as a dealer
in securities or file a general consent to service of process under the laws of
any jurisdiction.
(g) EARNING STATEMENT. In accordance with Rule 158 under the 1933
Act, the Company will make generally available to its security holders and to
holders of the Securities, as soon as practicable, an earning statement (which
need not be audited) in reasonable detail covering the 12 months beginning not
later than the first day of the month next succeeding the month in which
occurred the effective date (within the meaning of Rule 158 under the 0000 Xxx)
of the Registration Statement.
(h) EXCHANGE ACT DOCUMENTS; RATINGS NOTIFICATION. During the period
when a prospectus relating to any of the Securities is required to be delivered
under the 1933 Act by any Underwriter or any dealer, the Company will file
promptly all documents required to be filed with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act; and the Company will promptly notify
the Underwriters of any written notice given to the Company by any "nationally
recognized statistical rating organization" within the meaning of Rule 436(g)(2)
under the 1933 Act (a RATING AGENCY) of any intended decrease in any rating of
any securities of the Company or of any intended change in any such rating that
does not indicate the direction of the possible change of any such rating, in
each case by any such Rating Agency.
(i) RESTRICTION ON SALE OF SECURITIES. During a period of 90 days
from the date of the Prospectus, the Company will not, without the prior written
consent of ___________, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the
8
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the Securities
to be sold hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a security outstanding
on the date hereof, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the Company
or (D) any shares of Common Stock issued pursuant to any nonemployee director
stock plan or dividend reinvestment and stock repurchase plan in effect on the
date of the filing of the Registration Statement.
(j) PAYMENT OF EXPENSES. Whether or not any sale of the Securities
is consummated, the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of counsel for the Company and the Accountants
in connection with the registration of the Securities under the 1933 Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments or supplements thereto and the mailing and delivering of copies
thereof to you and any dealers; (ii) the cost of printing or producing this
Agreement, any blue sky memorandum, closing documents (including any
compilations thereof) and other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 4(f) hereof, including the fees and
disbursements of Underwriters' Counsel in connection with such qualification and
in connection with any such blue sky memorandum; (iv) the fees and expenses
incurred in connection with the listing of the Securities on the NYSE; (v) any
filing fees incident to, and the fees and disbursements of Underwriters' Counsel
in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and disbursements of any
transfer agent or registrar for the Securities; and (viii) all other costs and
expenses incident to the performance of the Company's obligations hereunder that
are not otherwise specifically provided for in this Section 4(j); but, if for
any reason the Securities are not delivered by or on behalf of the Company as
provided herein (other than due to a default by the Underwriters), the Company
will reimburse the Underwriters for all out-of-pocket expenses, including fees
and disbursements of Underwriters' Counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to the
Underwriters with respect to the Securities except as provided in this Section
4(j) and Section 6 hereof. It is understood that, except as provided in this
Section 4(j) and Section 6 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of Underwriters' Counsel and any
advertising expenses in connection with any offers the Underwriters may make.
(k) LISTING. The Company will use its best efforts to effect the
listing of the Securities on the NYSE.
(l) USE OF PROCEEDS. The Company will use the net proceeds from the
issuance and sale of the Securities in the manner described in the Prospectus
under "Use of Proceeds".
5. CONDITIONS TO UNDERWRITER'S OBLIGATIONS. The obligations of the
several Underwriters under this Agreement shall be subject to the condition that
all representations and warranties of the Company contained in this Agreement
are, at and as of the Closing Date, true
9
and correct, the condition that the Company shall have performed all of its
obligations hereunder on or prior to the Closing Date and the following
additional conditions:
(a) FILING OF PROSPECTUS WITH SEC; NO STOP ORDER; 1935 ACT ORDER IN
FULL FORCE AND EFFECT. The Prospectus, and any supplements thereto, shall have
been filed with the SEC within the time period prescribed for such filing by
Rule 424(b) under the 1933 Act and in accordance with Section 4(a) hereof; all
requests for additional information on the part of the SEC shall have been
complied with to the reasonable satisfaction of the Underwriters; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the SEC; and the 1935 Act Order shall be in full
force and effect and sufficient to authorize the transactions contemplated by
this Agreement.
(b) OPINION OF UNDERWRITERS' COUNSEL. At the Closing Date,
Underwriters' Counsel shall have furnished to you an opinion, dated the Closing
Date, with respect to the validity of the Securities, the Prospectus and the
Registration Statement and such other related matters as you may reasonably
request, and Underwriters' Counsel shall have received such documents and
information as it may reasonably request to enable it to pass upon such matters.
In rendering such opinion, such counsel (A) may rely as to matters involving the
application of the laws of the State of Missouri upon the opinion of Xxxxxx X.
Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, rendered
pursuant to Section 5(c) hereof and (B) may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials.
(c) OPINION OF COMPANY COUNSEL. At the Closing Date, Xxxxxx X.
Xxxxxxxx, Vice President, General Counsel and Secretary of the Company, shall
have furnished to you an opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Missouri,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing would not
reasonably be expected to have a Material Adverse Effect;
(ii) each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with all power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; each such subsidiary is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing would not reasonably
be expected to have a Material Adverse Effect; and all of the issued and
outstanding common stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable, and all
of such common stock (except with regard to 40% of the common stock of
Electric Energy, Inc.) is owned by the Company, directly or indirectly,
free from liens, encumbrances and defects of title;
10
(iii) other than as described in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or such
subsidiaries is the subject which, if determined adversely to the Company
or such subsidiaries, would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and the statements
included or incorporated by reference in the Prospectus describing any
legal proceedings or material contracts or agreements relating to the
Company or any of its subsidiaries fairly summarize such matters;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company;
(v) the Securities have been duly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued,
fully paid and non-assessable; the Common Stock conforms in all material
respects to all statements relating thereto contained in the Prospectus
and such description conforming to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to personal
liability solely by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights of any
securityholder of the Company or any of its subsidiaries;
(vi) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the articles of
incorporation and by-laws of the Company and the requirements of the NYSE;
(vii) the issue and sale of the Securities by the Company, and the
compliance by the Company with all of the provisions of this Agreement,
and the consummation of the transactions herein contemplated, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the articles of
incorporation or by-laws of the Company or any statute or any order, rule
or regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and
the execution, delivery and performance of this Agreement will not require
the approval or consent of any holder or trustee of any debt or other
obligations or securities of the Company which will not have been
obtained;
(viii) the Company is not, and, after giving effect to the offering
and sale of the Securities, the Company will not be, an "investment
company," or an entity "controlled" by an investment company, as such
terms are defined in the Investment Company Act of 1940, as amended;
11
(ix) the SEC has issued the 1935 Act Order authorizing the issuance
and sale of the Securities by the Company; the 1935 Act Order is in full
force and effect and is sufficient to authorize the transactions
contemplated by this Agreement; and no other consent, approval,
authorization, order, registration, filing or qualification of or with any
court or governmental agency or body is required for the issue and sale of
the Securities by the Company, or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act and the 1939 Act and such consents, approvals,
authorizations, orders, registrations, filings or qualifications as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; and
(x) the Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the SEC pursuant to Rule 424(b)
under the 1933 Act (except in each case as to financial statements and
other financial data contained or incorporated by reference therein, upon
which such counsel need not pass), complied as to form in all material
respects with the requirements of the 1933 Act and the 1939 Act and the
respective rules and regulations of the SEC thereunder; each Incorporated
Document as originally filed pursuant to the 1934 Act (except as to
financial statements and other financial data contained or incorporated by
reference therein, upon which such counsel need not pass) complied as to
form when so filed in all material respects with the requirements of the
1934 Act and the rules and regulations of the SEC thereunder; the
Registration Statement has become, and on the Closing Date is, effective
under the 1933 Act and, to the best of such counsel's knowledge, no
proceedings for a stop order with respect thereto are threatened or
pending under Section 8 of the 1933 Act; and nothing has come to the
attention of such counsel that has caused it to believe that the
Registration Statement (except as to financial statements and other
financial data contained or incorporated by reference therein, upon which
such counsel need not pass), at the Effective Date, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (except as to financial statements and
other financial data contained or incorporated by reference therein, upon
which such counsel need not pass), at the time it was filed with the SEC
pursuant to Rule 424(b) under the 1933 Act or on the Closing Date,
included or includes any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Such opinion shall also state that such counsel has no knowledge of any
litigation, pending or threatened, that challenges the validity of the
Securities or this Agreement, or that seeks to enjoin the performance of the
Company's obligations hereunder or thereunder or that might reasonably be
expected to have a Material Adverse Effect except as described in the
Prospectus.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials. Such counsel's opinion may further state that it is addressed
to the Underwriters and is rendered solely for their benefit and may not be
relied upon in any manner by any other person (other than Underwriters' Counsel
as to certain matters involving the application of the laws of the State of
Missouri in its opinion to the Underwriters on the date of such opinion) without
such counsel's prior written consent.
12
(d) LETTERS OF ACCOUNTANTS. On the date of this Agreement, and at
the Closing Date, the Accountants shall have furnished to the Underwriters
letters, dated the date of this Agreement and the Closing Date, respectively, in
form and substance satisfactory to the Underwriters, confirming that they are
independent accountants within the meaning of the 1933 Act and the rules and
regulations of the SEC thereunder with respect to the Company and its
subsidiaries and stating in effect that:
(i) in the opinion of the Accountants, the consolidated financial
statements and schedules included or incorporated by reference in the
Prospectus and audited by them comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1934
Act and the respective rules and regulations of the SEC thereunder; and
(ii) on the basis of a reading of the unaudited consolidated
financial statements included or incorporated by reference in the
Prospectus and the latest available interim unaudited consolidated
financial statements of the Company, the performance of the procedures
specified by the American Institute of Certified Public Accountants for a
review of any such financial statements as described in Statement on
Auditing Standards No. 71, inquiries of officials of the Company
responsible for financial and accounting matters and a reading of the
minutes of meetings of the stockholders and the Board of Directors of the
Company and the Audit Committee thereof through a specified date not more
than five days prior to the date of the applicable letter, nothing came to
the attention of the Accountants that caused them to believe that: (A) any
material modification should be made to the unaudited consolidated
financial statements included or incorporated by reference in the
Prospectus for them to be in conformity with generally accepted accounting
principles or any such financial statements do not comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act or the 1934 Act and the respective rules and regulations of the
SEC thereunder; (B) for the period from the date of the latest
consolidated financial statements included or incorporated by reference in
the Prospectus through the date of the most recent available consolidated
financial statements of the Company and at a subsequent date not more than
five days prior to the date of such letter, there were any decreases in
total consolidated net sales, income from operations or net income as
compared with the comparable period of the preceding year; or (C) at the
date of the most recent available financial statements of the Company and
at a subsequent date not more than five days prior to the date of such
letter, there was any change in the capital stock of the Company, any
increase in long-term debt of the Company, any decrease in consolidated
net current assets (working capital) of the Company or any decrease in
common shareholders' equity of the Company as compared with the amounts
shown in the most recent consolidated balance sheet included or
incorporated by reference in the Prospectus, except in all instances for
changes, increases or decreases that the Prospectus discloses have
occurred or may occur, or for changes, increases or decreases that are
described in such letter that are reasonably satisfactory to you.
Such letter shall also cover such other matters as you shall reasonably request,
including but not limited to the Company's "Management's Discussion and Analysis
of Financial Condition and Results of Operations" contained in the Company's
financial statements included or incorporated by reference in the Prospectus and
any other information of an accounting or financial nature included or
incorporated by reference therein that is derived from the accounting records of
the Company.
13
(e) NO MATERIAL CHANGES. (i) Neither the Company nor any of its
subsidiaries shall have sustained, since the date of the most recent audited
consolidated financial statements included or incorporated by reference in the
Prospectus, any loss or interference with their business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus, there shall not have been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity or consolidated results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as described in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), in the judgment of the Underwriters makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus or to enforce contracts
for the sale of any Securities.
(f) APPROVAL OF LISTING. At the Closing Date, the Securities shall
have been approved for listing on the NYSE, subject only to official notice of
issuance.
(g) LOCK-UP AGREEMENTS. At the date of this Agreement, the
Underwriters shall have received an agreement substantially in the form of
Exhibit A attached hereto signed by the persons listed on Schedule III attached
hereto.
(h) NONOCCURRENCE OF CERTAIN EVENTS. On or after the date of this
Agreement, there shall not have occurred any of the following: (i) a suspension
or limitation of trading in securities of the Company or generally on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market or
any setting of minimum or maximum prices for trading thereon; (ii) a general
moratorium on commercial banking activities in New York, New York declared by
the relevant authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, which, in the case of
either clause (iii) or (iv), in the judgment of the Underwriters, makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus
or to enforce contracts for the sale of any of the Securities.
(i) OFFICERS' CERTIFICATE. At the Closing Date, the Company shall
have furnished or caused to be furnished to the Underwriters a certificate,
dated the Closing Date, of (i) the chief executive officer, the President or
any Senior Vice President of the Company and (ii) the Treasurer of the
Company in which such officers shall state that the representations and
warranties of the Company in this Agreement are true and correct in all
material respects at and as of the Closing Date, and that the Company has
complied with all agreements and has satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date and that,
subsequent to the respective dates as of which information is given in the
Prospectus, there has been no material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or consolidated
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as described in the Prospectus.
14
(j) CONDITIONS TO PURCHASE OF OPTION SECURITIES. In the event that
the Underwriters exercise their option provided in Section 1(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary hereunder shall be true
and correct as of each Date of Delivery and, at such Date of Delivery, the
Underwriters shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of (x) the chief executive officer, the President or any Senior
Vice President of the Company and (y) the Treasurer of the Company
confirming that the certificate delivered at the Closing Date pursuant to
Section 5(i) hereof remains true and correct as of such Date of Delivery.
(ii) OPINION OF COMPANY COUNSEL. The favorable opinion of
Xxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of the
Company, in form and substance satisfactory to Underwriters' Counsel,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(iii) OPINION OF UNDERWRITERS' COUNSEL. The favorable opinion
of Underwriters' Counsel, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(iv) BRING-DOWN LETTER OF ACCOUNTANTS. A letter from the
Accountants, in form and substance satisfactory to the Underwriters and
dated such Date of Delivery, substantially in the same form and substance
as the letter furnished to the Underwriters pursuant to Section 5(d)
hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than five business days prior
to such Date of Delivery.
(k) OTHER DOCUMENTS AND CERTIFICATES. At the Closing Date and each
Date of Delivery, if any, Underwriters' Counsel shall have been furnished with
all such documents, certificates and opinions as Underwriters' Counsel may
reasonably request and that are customary for transactions of a similar nature,
and of which the Company has been notified in writing prior to the date hereof,
in order to evidence the accuracy and completeness of any of the
representations, warranties, certificates or other written statements of the
Company provided to the Underwriters pursuant to this Agreement, the performance
of any of the covenants of the Company, or the fulfillment of any of the
conditions herein contained. All proceedings taken by the Company at or prior to
the Closing Date or any Date of Delivery in connection with the authorization,
issuance and sale of the Securities as contemplated by this Agreement,
including, without limitation, the execution of this Agreement, shall be
reasonably satisfactory in form and substance to the Underwriters and
Underwriters' Counsel.
In case any of the conditions specified above in this Section 5
shall not have been fulfilled, this Agreement may be terminated by you upon
mailing or otherwise delivering written notice thereof to the Company. Any such
termination shall be without liability of either party to the other party except
as otherwise provided in Section 4(j) hereof and except for any liability under
Section 6 hereof.
15
6. INDEMNIFICATION AND CONTRIBUTION
(a) INDEMNIFICATION BY COMPANY. The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages, liabilities or
expenses, as and when incurred, to which such Underwriter may become subject,
joint or several, under the 1933 Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or claims in respect
thereof), arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will promptly reimburse such Underwriter for any reasonable expenses
(including reasonable fees and expenses for no more than one law firm for the
Underwriters) when and as incurred by such Underwriter in connection with
investigating or defending any such action or claim; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to an Underwriter to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or any other prospectus relating to the Securities or any such
amendment or supplement thereto in reliance upon and in conformity with the
Underwriter Information.
(b) INDEMNIFICATION BY THE UNDERWRITERS. Each Underwriter,
severally, will indemnify and hold harmless the Company against any losses,
claims, damages, liabilities or expenses to which the Company may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or claims in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Securities or
any amendment or supplement thereto, or arise out of are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Securities or any such amendment or supplement, in reliance upon
and in conformity with the Underwriter Information, and will reimburse the
Company for any reasonable expenses (including reasonable fees and expenses for
no more than one law firm for the Company) when and as incurred by the Company
in connection with investigating or defending any such action or claim.
(c) GENERAL. Promptly after receipt by an indemnified party under
Section 6(a) or 6(b) hereof of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under Section 6(a) or 6(b) hereof, notify such indemnifying
party in writing of the commencement thereof, but the omission so to notify such
indemnifying party shall not relieve such indemnifying party from any liability
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have to any such indemnified party
otherwise than under Section 6(a) or 6(b) hereof. In case any such action shall
be brought against any such indemnified party and it shall notify such
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party under Section 6(a) or (b) hereof similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of such indemnified
party, be counsel to such indemnifying party), and, after notice
16
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party under Section 6(a) or 6(b) hereof for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the foregoing, the indemnified party
shall have the right to employ separate counsel at the indemnifying party's
expense and to control its defense of such action if (i) the indemnifying party
and the indemnified party agree to the retention of that counsel, (ii) the
indemnifying party does not assume the defense of such action in a timely manner
or (iii) the indemnified party reasonably objects to such assumption on the
ground that there may be legal defenses available to it that are different from
or in addition to those available to the indemnifying party or another
indemnified party. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (x) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (y) does not include a statement as to, or an admission
of, fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 6 is unavailable to or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) hereof in respect of any losses, claims,
damages, liabilities or expenses (or actions or claims in respect thereof)
referred to therein, then each indemnifying party under Section 6(a) or 6(b)
hereof shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (or actions
or claims in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each such indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses (or actions or claims in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions the Underwriters
received. The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were
determined by PRO RATA allocation or by any other method of allocation that does
not take account of the equitable considerations referred to above in this
Section 6(d). The amount paid or payable by such an indemnified party as a
result of the losses, claims, damages, liabilities or expenses (or actions or
claims in respect thereof) referred to above in this Section 6(d) shall be
deemed to include any legal or other expenses incurred by such indemnified party
in connection with investigating or defending any such action or claim. The
obligations of the Underwriters to contribute hereunder are several and not
joint.
17
Notwithstanding the provisions of this Section 6(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by such Underwriter and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) SCOPE OF OBLIGATIONS. The obligations of the Company under this
Section 6 shall be in addition to any liability that the Company may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
director, employee, agent or other representative and to each person, if any,
who controls each Underwriter within the meaning of the 1933 Act or the 1934
Act; and the obligations of the Underwriters under this Section 6 shall be in
addition to any liability that the Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director, employee,
agent or other representative and to each person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriters, as set forth in this Agreement
or made by or on behalf of the Company or the Underwriters, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of the Underwriters, any of their officers, directors, employees, agents
or other representatives or controlling persons, or the Company, any officer or
director of the Company who signed the Registration Statement or any controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
8. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to ___________________ at the address set forth on the first page of
this Agreement, attention of _______________; and notices to the Company shall
be directed to Ameren Corporation, 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, attention of Treasurer.
9. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail at the Closing
Date to purchase the Securities which it is obligated to purchase under this
Agreement (the DEFAULTED SECURITIES), the non-defaulting Underwriter or
Underwriters shall have the right, but not the obligation, within 24 hours
thereafter, to purchase, or to make arrangements for the appointment of another
purchaser to purchase, the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the non-defaulting
Underwriter or Underwriters shall not have completed such arrangements within
such 24-hour period, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriter or Underwriters. No action taken
pursuant hereto shall relieve any defaulting Underwriter from liability in
respect of its default. In the event of any such default which does not result
in a termination of this Agreement, either the non-defaulting Underwriter or
Underwriters or the Company shall have the right to postpone the Closing Date
for a period not exceeding 7 days in order to effect any required changes in the
Registration Statement, the Prospectus or in any other documents or arrangements
related thereto. The term "Underwriter" for purposes of this Agreement includes
any such person substituted for the defaulting Underwriter.
18
Notwithstanding any termination pursuant to this Section 9, the provisions of
Sections 4(j), 6, 7 and 10 hereof shall remain in effect.
10. MISCELLANEOUS. The rights and duties of the parties to this Agreement
shall, pursuant to New York General Obligations Law Section 5-1401, be governed
by the law of the State of New York. This Agreement shall be binding upon, and
inure solely to the benefit of, the Company and the Underwriters except to the
extent provided in Section 6(e) hereof, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No person who purchases any
of the Securities from the Underwriters shall be deemed a successor or assign by
reason merely of such purchase. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument. The word "or" shall not be exclusive,
and all references in this Agreement to the words "herein," "hereof,"
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Section or subdivision hereof, and the captions to
such Sections and subdivisions are for convenience only and shall not affect the
construction hereof.
19
If the foregoing is in accordance with your understanding, please sign and
return to the Company the enclosed duplicate hereof, whereupon this Agreement
will become a binding agreement between the Company and the Underwriters in
accordance with its terms.
Very truly yours,
AMEREN CORPORATION
By:
---------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
BY: [LEAD UNDERWRITER]
By:
---------------------------
Name:
Title:
20
SCHEDULE I
NUMBER OF
INITIAL
NAME OF UNDERWRITER SECURITIES
--------------------------------------------- --------------
_______
TOTAL..................................
=======
SCHEDULE II
1. The initial public offering price per share for the Securities shall
be $_____.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $____, being an amount equal to the initial public
offering price set forth above less $____ per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
overallotment option described in Section 1(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
Sch II-1
SCHEDULE III
List of persons subject to lock-up
Exhibit A
__________, 200_
[Names of Underwriters]
c/o [Name and Address of
Lead Underwriter]
Re: PROPOSED PUBLIC OFFERING BY
AMEREN CORPORATION
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
Ameren
Corporation, a Missouri corporation (the "Company"), understands that
_________________ ("_________") proposes to enter into an
Underwriting Agreement
(the "
Underwriting Agreement") with the Company providing for the public
offering of shares (the "Securities") of the Company's common stock, $.01 par
value per share (the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder and an officer and/or
director of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter named in the
Underwriting Agreement that, during a period
of 90 days from the date of the
Underwriting Agreement, the undersigned will
not, without the prior written consent of _______________, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:
---------------------
Print Name:
-------------------
A-1
