EXHIBIT 1.2
WSP&R
DRAFT
11/22/96
UNION ELECTRIC COMPANY
Subordinated Deferrable Interest Debt Securities
UNDERWRITING AGREEMENT
December __, 1996
Xxxxxx Brothers Inc.
As Representative of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
Union Electric Company, a Missouri corporation (the
"Company"), confirms its agreement with you and each of the other underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representative") are acting as representative, with respect to the sale by the
Company and the several purchases by the Underwriters of a series of the
Company's subordinated deferrable interest debt securities having the terms and
to be issued in the amount specified in Schedule I hereto (the "Securities").
The Securities will be issued under the Company's Indenture, dated as of
December __, 1996, to Boatmen's Trust Company, as trustee (the "Trustee"), as
supplemented by a supplemental indenture, resolutions of the Board of Directors
of the Company, or a duly authorized committee thereof, or certificate of an
officer of the Company relating to the Securities (any such supplemental
indenture, resolution or certificate being hereinafter referred to as the
"Supplemental Indenture"), in substantially the form heretofore delivered to the
Representative. The term "Indenture", as used herein, shall be deemed to refer
to such Indenture as so supplemented by the Supplemental Indenture. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representative", as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (File No. 33-45008) ("Registration Statement No.
33-45008") on such form for the registration under the Act of
$200,000,000 principal amount of the Company's first mortgage bonds.
Registration Statement No. 33-45008 was declared effective by the
Commission on January 17, 1992. While an aggregate of $100,000,000 of
such first mortgage bonds remained unsold, the Company also filed with
the Commission a registration statement (File No. 33-52914)
("Registration Statement No. 33-52914") on Form S-3 for the
registration under the Act of an additional $700,000,000 principal
amount of the Company's first mortgage bonds, including a combined
prospectus relating, pursuant to Rule 429 under the Act, to an
aggregate of $800,000,000 principal amount of the Company's first
mortgage bonds. Registration Statement No. 33-52914 was declared
effective by the Commission on October 13, 1992. Thereafter, while an
aggregate of $90,000,000 of such first mortgage bonds remained unsold,
the Company also filed with the Commission a registration statement
(File No. 33-66116) ("Registration Statement No. 33-66116") on Form S-3
for the registration under the Act of an additional $310,000,000
principal amount of the Company's first mortgage bonds, including a
combined prospectus relating, pursuant to Rule 429 under the Act, to an
aggregate of $400,000,000 principal amount of the Company's first
mortgage bonds. Registration Statement No. 33-66116 was declared
effective by the Commission on July 26, 1993. On November __, 1996, the
Company filed Post-Effective Amendment No. 1 to Registration Statement
No. 33-66116 in order to facilitate the offering of one or more series
of unsecured debt securities, including the Securities, in addition to
the Company's first mortgage bonds. Post-Effective Amendment No. 1 to
Registration Statement No. 33-66116, as so amended, was declared
effective by the Commission on _________ __, 1996. As of the date of
effectiveness of said Post-Effective Amendment No. 1, an aggregate of
$225,000,000 principal amount of debt securities was available for
issuance under Registration Statement No. 33-66116. The Company may
have filed one or more other amendments to Registration Statement No.
33-66116, and may have used a Preliminary Prospectus, each of which has
previously been furnished to you. The offering of the Securities is a
Delayed Offering and, although the combined prospectus forming a part
of Registration Statement No. 33- 66116, as amended, may not include
all the information with respect to the Securities and the offering
thereof required by the Act and the rules thereunder to be included in
the Final Prospectus, such combined Prospectus includes all such
information required by the Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of combined prospectus included in Registration
Statement No. 33-66116, as amended, relating to the Securities and the
offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and the
offering thereof and, except to the extent the Representative shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in such combined prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein.
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(b) On the Effective Date, the Registration Statement did and
when the Final Prospectus is first filed in accordance with Rule
424(b), the Final Prospectus (and any supplement thereto) will comply
in all material respects with the applicable requirements of the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the respective rules thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date (as
hereinafter defined), the Indenture did and will comply in all material
respects with the requirements of the Trust Indenture Act and the rules
thereunder; and on the date of its filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any supplement
thereto) will 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; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the Trustee;
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representative specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. With respect to each of Registration
Statement No. 33-45008, Registration Statement No. 33-52914 and
Registration Statement No. 33-66116, the term "Effective Date" shall
mean the later of each date that such registration statement initially
became effective, each date that any post-effective amendment or
amendments thereto became or become effective and the date of the
filing of the Company's most recent Annual Report on Form 10-K.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall
mean the combined prospectus referred to in paragraph (a) above
contained in and forming a part of Registration Statement No. 33-66116
at the Effective Date. "Preliminary Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus. "Registration Statement" shall mean Registration
Statement No. 33-45008, Registration Statement No. 33-52914 and
Registration Statement No. 33-66116, including in each case
incorporated documents, exhibits and financial statements, each as
amended to the Execution Time and, in the event any post-effective
amendment to any Registration Statement becomes effective after the
Execution Time and prior to the Closing Date, shall also mean such
Registration Statement as so amended. "Rule 415", "Rule 424", "Rule
429" and "Regulation S-K" refer to such rules and regulation under the
Act. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
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reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the date Post-Effective Amendment
No. 1 to Registration Statement No. 33-66116 became effective or the
issue date of the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
effective date of such Post-Effective Amendment No. 1 or the issue date
of the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto, the respective principal amounts of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representative shall designate), which date and time may
be postponed by agreement between the Representative and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the respective purchase prices thereof by wire transfer of
immediately available funds. Delivery of the Securities shall be made at such
location as the Representative shall reasonably designate at least one business
day in advance of the Closing Date and payment for the Securities shall be made
at the office specified in Schedule I hereto. Certificates for the Securities
shall be registered in such names and in such denominations as the
Representative may request not less than two full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) The Company will use its best efforts to cause any
post-effective amendment to the Registration Statement, if not
effective at the Execution Time, to become effective. Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement
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(including the Final Prospectus or any Preliminary Prospectus) to the
Basic Prospectus (other than a prospectus supplement relating solely to
an offering of first mortgage bonds or debt securities other than the
Securities) unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representative of such timely filing. The Company will promptly advise
the Representative (i) when any post-effective amendment to the
Registration Statement, if not effective at the Execution Time, shall
have become effective; (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b); (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective; (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information; (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose; and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earning
statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel
for the Underwriters, without charge, copies of Registration Statement
No. 33-45008, Registration Statement No. 33-52914 and Registration
Statement No. 33-66116, as amended, as originally filed (including, in
the case of Registration Statement No. 33- 66116, as amended, exhibits
thereto; provided that the Company will, upon the request of the
Underwriters, furnish copies of the exhibits to Registration Statement
No. 33- 45008 and Registration Statement No. 33-52914), all amendments
thereto relating to the Securities and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
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many copies of any Preliminary Prospectus and the Final Prospectus and
any supplement thereto as the Representative may reasonably request.
The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Company will cooperate in good faith with the
Representative in qualifying the Securities for offer and sale under
the laws of such jurisdictions as the Representative may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities, and, upon the request of the
Representative, will arrange for the determination of the legality of
the Securities for purchase by institutional investors.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the Representative, offer,
guarantee, sell or contract to sell, or otherwise dispose of, by public
offering, or announce the public offering of, any long-term unsecured
debt securities other than the Securities.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representative the
opinion of Xxxxxxx X. Xxxxxx, Vice President and General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly organized and
validly existing and in good standing under the laws of
Missouri and has due corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to conduct in Illinois and
Iowa the businesses in which it is engaged in those States,
which are the only States in which it is required to be so
qualified;
(ii) the Company has full power and authority to
execute the Indenture and to issue the Securities thereunder,
and the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act, and constitutes a valid and legally
binding instrument by the Company enforceable against the
Company in accordance with its terms;
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(iii) Boatmen's Trust Company is authorized and
qualified under the laws of the States of Missouri, Illinois
and Iowa to act as Trustee under the Indenture;
(iv) the Securities have been duly authorized,
executed and issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment and
delivery in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to
the Company fairly summarize such matters;
(vi) Registration Statement No. 33-45008,
Registration Statement No. 33- 52914 and Registration
Statement No. 33-66116, and each post-effective amendment
thereto, have each become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary
Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose have been instituted or
threatened; at the respective Effective Dates thereof, the
Registration Statement and, at the time first filed pursuant
to Rule 424(b), the Final Prospectus (in each case including
the documents then incorporated by reference therein but
excluding the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act, as applicable,
and the respective rules thereunder; and such counsel has no
reason to believe that, at the respective Effective Dates
thereof, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, at the time first filed pursuant to Rule 424(b)
and at the Closing Date, includes any untrue statement of a
material fact 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;
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(vii) the Company has full power and authority to
execute this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company;
(viii) the Missouri Public Service Commission and the
Illinois Commerce Commission have duly authorized the issue
and sale of the Securities; such authorizations are sufficient
for the issue and sale of the Securities and are in full force
and effect; no other approval or consent of or filing with any
other governmental body, including without limitation any
regulatory body of the State of Iowa (other than, under the
Act or the Trust Indenture Act, which have been obtained, or
in connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which
such counsel expresses no opinion), is legally required in
connection with the execution and delivery of this Agreement
and the Indenture or the authorization, issuance and sale of
the Securities;
(ix) the execution and delivery of the Indenture, the
Securities and this Agreement, and the fulfillment of the
terms thereof and hereof by the Company, will not result in a
breach of any of the terms or provisions of, or constitute a
default under any provision of, the Company's articles of
incorporation or by-laws or any indenture, mortgage, deed of
trust or other agreement or instrument, of which such counsel
has knowledge, to which the Company is now a party or, to the
best of such counsel's knowledge, any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its activities or
properties;
(x) the provisions of the Securities and the
Indenture conform in all material respects as to legal matters
to the statements concerning them contained in the Final
Prospectus under "The Offering" and "Certain Terms of the
Capital Securities";
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement;
(xii) the franchises, permits and licenses under
which the Company operates in the States of Missouri, Illinois
and Iowa are adequate to permit the Company to engage in the
businesses which it presently conducts in those States and do
not contain any unduly burdensome provisions; in those
municipalities where the Company operates without franchises
or where expired franchises have not been renewed, the lack of
such franchises does not materially affect the Company's
operations in such municipalities and no actions or
proceedings are pending or, to such counsel's knowledge,
threatened by such municipalities which would materially
affect the Company's operations[; and
(xiii) the Company is exempt from all of the
provisions of the Public Utility Holding Company Act of 1935,
except Sections 9(a)(2) and 11(b)(2) thereof].
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Such counsel's opinion set forth in paragraphs (ii) and (iv)
above is subject to the qualifications that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally, by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of good faith and
fair dealing.
Such opinion shall also state that such counsel has no
knowledge of any litigation, pending or threatened, which challenges the
validity of the Securities, the Indenture, or this Agreement, or which seeks to
enjoin the performance of the Company's obligations thereunder or which might
have a material adverse effect on the business, properties or financial
condition of the Company except as disclosed in or contemplated by the Final
Prospectus.
In rendering such opinion, such counsel may rely as to factual
matters upon certificates or written statements from others or other appropriate
representatives of the Company or upon certificates of public officials. In such
opinion, such counsel may state that while such counsel has examined the
Registration Statement and the Final Prospectus, such counsel necessarily
assumes the correctness and completeness of the statements made and information
included therein and takes no responsibility therefor, except insofar as such
statements relate to him and as set forth in paragraph (x) above.
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 Winthrop, Stimson,
Xxxxxx & Xxxxxxx to the extent stated in its opinion to the Underwriters as of
the Closing Date) without such counsel's prior written consent.
(c) The Representative shall have received from Winthrop,
Stimson, Xxxxxx & Xxxxxxx, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Indenture, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
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(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Price Waterhouse shall have furnished
to the Representative a letter or letters, dated as of the Closing
Date, in form and substance satisfactory to the Representative,
confirming that they are independent accountants with respect to the
Company within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion, the audited financial
statements and financial statement schedules incorporated in
the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) based on the performance of the procedures
specified by the American Institute of Certified Public
Accountants for review of interim financial information as
described in Statement of Auditing Standards No. 71, Interim
Financial Information, on unaudited financial statements
incorporated in the Registration Statement and the Final
Prospectus (if any), inquiries of officials of the Company
responsible for financial and accounting matters and reading
the minutes of the meetings of the stockholders, directors and
principal committees of the Company, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements
incorporated in the Registration Statement and the
Final Prospectus do not comply as to form in all
material respects with applicable accounting
requirements of the Act and the Exchange Act, and
with the published rules and regulations of the
Commission thereunder, or any material modifications
should be made for them to be in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the most
recent audited financial statements incorporated in
the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
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than five business days prior to the date of the
letter, in the capital stock or the long-term debt of
the Company as compared with the amounts shown in the
most recent financial statements included or
incorporated by reference in the Registration
Statement and the Final Prospectus except in all
instances for changes which the Registration
Statement discloses have occurred or may occur or as
may result from the retirement of preferred stock to
satisfy a mandatory sinking fund requirement, the
issuance of common stock pursuant to the Company's
Employee Stock Ownership Plan, and its issuance or
retirement of long-term debt through the nuclear fuel
lease, or for the twelve-month period ended not more
than five days prior to the date hereof there were
any decreases in excess of 3%, as compared with the
comparable information for the twelve months ended as
of the date of the most recent financial statements
referred to above, in operating revenues, operating
income, net income, earnings on common stock,
earnings per share of common stock, or ratio of
earnings to fixed charges, except in all instances
for decreases which the Registration Statement
discloses have occurred or may occur, in which case
the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless
said explanation is not deemed necessary by the
Representative; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements incorporated by reference in the
Registration Statement and the Final Prospectus;
(iii) the pro forma financial statements relating to
the Company's proposed merger with CIPSCO Incorporated
included or incorporated by reference in the Registration
Statement and the Final Prospectus comply as to form with the
applicable accounting requirements of Article 11 of Regulation
S-X under the Exchange Act; and
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement and the Final
Prospectus Supplement, including the information included or
incorporated in the Company's Annual Report on Form 10-K or
any Form 8-K, incorporated in the Registration Statement and
the Final Prospectus, and the information included in the
"Management's Discussion and Analysis of the Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus, agrees with
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the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, at the Execution Time, Price Waterhouse shall
have furnished to the Representative a letter or letters, dated as of the
Execution Time, in form and substance satisfactory to the Representative, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Prior to the Closing Date, the Securities shall have
received ratings of ________ or higher by Standard & Poor's and
________ or higher by Xxxxx'x Investors Service, Inc., and such ratings
shall be in effect on the Closing Date.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) The orders of the Missouri Public Service Commission and
the Illinois Commerce Commission duly authorizing and approving the
issuance and sale of the Securities as contemplated in this Agreement
and in the Final Prospectus shall be in full force and effect at the
Closing Date, and no authorization or approval of any other
governmental regulatory authority shall be required in connection with
the authorization, issuance and sale of the Securities by the Company.
(j) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
-12-
may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or electronic transmittal confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
Registration Statement No. 33-45008, Registration Statement No.
33-52914 or Registration Statement No. 33-66116, or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus, or in any amendment thereof 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 agrees to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action, provided, however, that the Company will 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 any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the
Representative specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signed Registration Statement No. 33-45008, Registration Statement No.
33-52914 or Registration Statement No. 33- 66116 or any amendment
thereof, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
-13-
Company by or on behalf such Underwriter through the Representative
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in [the first sentence of
the last paragraph of the cover page, the top paragraph on page S-2 and
the third and fourth paragraphs] under the caption "Underwriting" in
the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in
the documents referred to in the foregoing indemnity, and you, as the
Representative, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
-14-
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if
contributions were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d). The obligations of the Underwriters
to contribute hereunder are several in proportion to their respective
underwriting obligations and not joint.
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
-15-
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of such
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representative shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on such
Exchange; (ii) a banking moratorium shall have been declared by Federal,
Missouri, Illinois or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and shall survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder shall be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or electronically transmitted and confirmed, to Xxxxxx
Brothers Inc., 3 World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxxx Xxxxxxxx, Senior Vice President; or, if sent to the
Company, shall be mailed, delivered or telegraphed and confirmed to it at 0000
Xxxxxxxx Xxxxxx, Xxxx Xxxxxx Xxx 000, Xx. Xxxxx, Xxxxxxxx 00000; attention of
Xxxxxx X. Xxxxxx, Senior Vice President, Finance and Corporate Services and
Chief Financial Officer.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, directors and officers
referred to in Section 7, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained; this Agreement
-16-
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of the parties hereto and their respective successors
and said controlling persons, directors and officers and for the benefit of no
other person, firm or corporation.
No purchaser of any Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
13. Applicable Law. The rights and duties of the parties
hereto under this Agreement shall, pursuant to New York General Obligations Law
Section 5-1401, be governed by the law of the State of New York.
14. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
such counterpart, when so executed and delivered, shall be deemed to be an
original, and all of such counterparts shall, taken together, constitute one and
the same agreement.
-17-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
UNION ELECTRIC COMPANY
By:---------------------------
Title:------------------------
CONFIRMED AND ACCEPTED as of the date first above written.
XXXXXX BROTHERS INC.
By: Xxxxxx Brothers Inc.
--------------------
By:-----------------------
Title:--------------------
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
-18-
SCHEDULE I
Underwriting Agreement dated December __, 1996
Representative: Xxxxxx Brothers Inc.
Designation, Purchase price and Description of the Securities:
Designation: Series A SKISSM, [___]% Subordinated Capital Income
Securities (Series A Subordinated Deferrable Interest Debentures). Each
$1,000 principal amount of such [___]% Subordinated Capital Income
Securities is referred to below as a "Security".
Principal amount: $[_________]
Supplemental Indenture: Resolutions, dated June 9, 1995 of the Board of
Directors of Union Electric Company and dated December __, 1996 of the
Executive Committee thereof.
Date of Maturity: December 15, 2045
Purchase price: $[____] per Security.
Public Offering Price: $[1,000] per Security.
Sinking fund provisions: None
Redemption provisions: The Securities will not be redeemable prior to
December __, 2006; thereafter, the Securities will be redeemable at the
option of the Company, in whole or in part, at any time on or after
December __, 2006 at the following redemption prices (in each case
expressed in percentages of principal amount):
If Redeemed During 12 Month Period Redemption
Beginning December , Price
2006........................... %
2007...........................
2008...........................
2009...........................
2010...........................
2011...........................
2012...........................
2013...........................
2014...........................
2015...........................
2016 and thereafter................... 100%
in each case, upon not less than 30 nor more than 60 days' notice,
together with accrued interest to, but not including, the date fixed
for redemption;
Closing Date, Time and Location: 10:00 A.M. on December __, 1996, at the
offices of
Winthrop, Stimson, Xxxxxx & Xxxxxxx,
Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Date referred to in Section 4(f) after which the Company may offer or sell by
public offering long-term unsecured debt securities issued or guaranteed by
the Company without the consent of the Representative: [____________], 199_
SCHEDULE II
Principal Amount
of Securities to be
Underwriters Purchased
Xxxxxx Brothers Inc. ...............................................$
Total ................................................$
