EXECUTION COPY
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UNDERWRITING AGREEMENT
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LACLEDE GAS COMPANY
Common Stock
April 29, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
As Representatives of the several
Underwriters named in Schedule I hereto
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Laclede Gas Company, a Missouri corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell severally
to you (the "Representatives") and the other several Underwriters named in
Schedule I hereto (collectively, including any underwriter substituted as
hereinafter provided in Section 4 hereof, the "Underwriters") the aggregate
number of shares of the Common Stock, par value $1 per share, of the Company
("Common Stock") set forth on Schedule I hereto (the "Firm Shares"). The Company
also proposes, subject to the terms and conditions stated herein, to issue and
sell severally to the Underwriters not more than an additional 150,000 shares of
Common Stock ("Option Shares"), if and to the extent that the Representatives,
on behalf of the Underwriters, shall have determined to exercise the right to
purchase Option Shares pursuant to Section 2(c) hereof. As used herein, the term
"Securities" shall mean, collectively, the Firm Shares and Option Shares.
1. Representations and Warranties of the Company. The Company represents
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and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-74423) with
respect to the Securities has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations of the Securities and Exchange
Commission (the "Commission") under the Act (the "Regulations"), has been
filed with the Commission and has become effective. The Company meets the
requirements for the use of Form S-3 under the Act. Copies of such
registration statement, together with all amendments, if any, and the
prospectus contained therein, in the form in which it became effective,
including the documents incorporated in such prospectus by reference, have
heretofore been delivered to the Underwriters. Such registration statement
in the form in which it most recently became effective, including all
exhibits thereto and the information deemed to be a part thereof, if any,
pursuant to Rule 430A(b) of the Regulations, is referred to hereinafter as
the "Registration Statement." The prospectus, including the documents
incorporated therein by reference, contained in the Registration Statement
is referred to hereinafter as the "Prospectus"; provided, however, that, as
used in this Agreement (except in this Section 1), upon the completion of
the Prospectus on or after the date hereof (whether by filing the
Prospectus as so completed with the Commission pursuant to Rule 424(b) of
the Regulations or an amendment to the Registration Statement with the
Commission under the Act in accordance with Rule 430A of the Regulations or
as a result of any other revision thereof or supplement thereto provided to
the Underwriters for use in connection with the offering of the Securities
that differs from the Prospectus on file with the Commission at the time
the Registration Statement became effective, whether or not such revision
or supplement is required to be filed with the Commission pursuant to Rule
424(b) of the Regulations), the term "Prospectus" shall mean the Prospectus
as so completed (the "Completed Prospectus"). All references in this
Agreement to amendments or supplements to the Registration Statement, the
Prospectus or the Completed Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of this Agreement that is or
is deemed to be incorporated by reference in the Prospectus; and all
references to the Registration Statement, the Prospectus or the Completed
Prospectus, or any amendment or supplement to any of the foregoing, shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
(b) No stop order with respect to the Registration Statement has been
issued by the Commission under the Act and no proceeding therefor is
pending before, or to the knowledge of the Company threatened by, the
Commission; the Registration Statement, at the time it became effective,
complied in all material respects with the requirements of the Act and the
Regulations and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus, on the date
hereof, and the Completed Prospectus, at the time it is filed with the
Commission pursuant to Rule 424(b) of the
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Regulations or first used and at the Time of Delivery and an Option Shares
Time of Delivery (each as defined in Section 4 hereof), as the case may be,
complied and will comply in all material respects with the requirements of
the Act and the Regulations and neither the Prospectus, on the date hereof,
nor the Completed Prospectus, at any such times, contains or will contain
an untrue statement of a material fact or omits or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and each document incorporated by reference in the
Prospectus, at the time it was or will be filed with the Commission under
the Exchange Act, conformed or will conform when so filed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act Regulations");
provided, however, that the representations and warranties contained in
this Section 1(b) shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company, through
the Representatives by any Underwriter, expressly for use in the
Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole and
there has not been any material transaction entered into by the Company,
other than transactions in the ordinary course of business and transactions
referred to in, or contemplated by, the Prospectus; and the Company does
not have any material contingent obligation that is not disclosed in the
Prospectus.
(d) Neither the Company or any of its subsidiaries is, or with the
giving of notice or the lapse of time or both would be, in breach of any of
the terms and provisions of, or in default under, nor will the consummation
by the Company of the transactions herein contemplated or the fulfillment
of the terms hereof result in a breach of any of the terms or provisions
of, or constitute a default under, the Articles of Incorporation or By-Laws
of the Company, each as amended, or any statute, indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a party
or by which it is bound or to which any of the property of the Company is
subject, or any order, rule or regulation applicable to the Company of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties, nor will any such action result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to the terms of
any such agreement or instrument; the Missouri Public Service Commission of
the State of Missouri (the "MPSC") has issued orders authorizing the
issuance and sale of the Securities, which orders are in full force and
effect; and no other approval, authorization, consent or order of any
public board or body is legally required for the issuance and sale of the
Securities by the Company hereunder, except such as may be required under
the Act or state securities laws.
(e) The financial statements, together with related notes,
incorporated by reference in the Prospectus present fairly the financial
position and the results of
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operations of the Company on the bases set forth in such statements and
related notes at the dates or for the periods to which they apply; such
statements and related notes have been prepared in accordance with
generally accepted principles of accounting, consistently applied
throughout the periods involved, except as otherwise stated therein; and
the supporting schedule incorporated by reference in the Prospectus
presents fairly the information required to be stated therein.
(f) The Company is a validly organized and existing corporation in
good standing under the laws of the State of Missouri, with full power and
authority to own or lease its properties and conduct its business as
described in the Prospectus; each of the Company's subsidiaries has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full power
and authority to own or lease its properties and conduct its business; and
each of the Company and its subsidiaries is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
business conducted by it or the location of the properties owned or leased
by it makes such qualification necessary, except where the failure to so
qualify would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole.
(g) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (except for changes that the
Registration Statement discloses have occurred or may occur or that were
occasioned by the declaration of dividends and for Common Stock offered
under the Company's shareholder and employee plans, including, without
limitation, the Company's Dividend Reinvestment and Stock Purchase Plan);
all of the outstanding shares of the capital stock of the Company (other
than the Securities) have been duly and validly authorized and issued and
are fully paid and non-assessable; when the Securities shall have been
delivered against payment therefor as provided herein, they will have been
duly and validly authorized and issued and fully paid and non-assessable
and entitled to the rights set forth in the Company's Articles of
Incorporation, as amended, and the Rights Agreement dated as of April 3,
1996 between the Company and UMB Bank, National Association (successor
rights agent to Boatmen's Trust Company), as rights agent thereunder; other
than as set forth in the Prospectus, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, any shares of Common Stock pursuant to the Articles
of Incorporation or By-Laws of the Company, each as amended, or other
agreement or instrument to which the Company is a party or by which it is
bound or to which any of the property of the Company is subject; and the
Common Stock, including the Securities, conforms to the description thereof
contained in the Prospectus.
(h) No labor dispute with any employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors, which labor dispute or disturbance in each case might
reasonably be expected to result in any material adverse change in the
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condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole.
(i) Other than as set forth in the Prospectus, there are no legal,
governmental or administrative proceedings pending to which the Company is
a party or of which any property of the Company is the subject, the outcome
of which, singly or in the aggregate, might reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(j) The Company and its subsidiaries have all valid material
franchises, licenses and permits as are required for the conduct of their
business as now conducted, and no franchise, license or permit is subject
to any deficiency, exception, restriction, condition or limitation, except
deficiencies, exceptions, restrictions, conditions and limitations that do
not materially adversely affect the conduct, business and operation of the
Company and its subsidiaries taken as a whole; and the Company and its
subsidiaries have complied with such terms and provisions of franchises,
licenses and permits the non-compliance with which would materially
adversely affect the conduct, business and operation of the Company and its
subsidiaries taken as a whole.
(k) To the knowledge of the Company, no person or corporation that is
a "holding company" or a "subsidiary of a holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended,
directly or indirectly owns, controls or holds with power to vote ten
percent or more of the outstanding voting securities of the Company.
(l) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of any proceedings relating to the revocation or
modification of any such certificate, authority or permit that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, might reasonably be expected to materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole.
2. Purchase and Sale. (a) On the basis of the representations and
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warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of $19.3875 per share, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
(b) In addition, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, the Company agrees to grant to the
Underwriters an option to purchase
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from the Company the number of Option Shares set forth in the notice referred to
in Section 2(c) hereof (the "Option"). If the Option is exercised by the
Underwriters, on 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 of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$19.3875 per share, the number of Option Shares (subject to such adjustments as
the Representatives may determine in order to avoid fractional shares) that
bears the same proportion to the aggregate number of Option Shares to be
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto bears to the aggregate number of Firm Shares.
(c) The Option may be exercised, in whole or in part from time to time,
within the period of 30 days from the date hereof, by written notice from the
Representatives, on behalf of the Underwriters, to the Company. Such notice
shall set forth the aggregate number of Option Shares as to which the Option is
being exercised and the date of delivery of, and payment for, such Option
Shares, which date shall be neither earlier than the later of the Time of
Delivery and the second Business Day (as defined below) after the date of such
exercise nor later than the seventh Business Day after the date of such
exercise. As used herein, "Business Day" shall mean any day on which the New
York Stock Exchange (the "NYSE") and banks in the City of New York are open.
3. Offering. Subject to the terms and conditions herein set forth,
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the Underwriters will make a public offering of the Securities upon the terms
and conditions set forth in the Prospectus.
4. Payment and Delivery; Defaulting Underwriters. Delivery of the Firm
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Shares, against payment therefor in immediately available funds by wire transfer
to an account designated in writing by the Company, shall be made at the offices
of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, at 10:00 A.M., New York City time, on the third Business Day after the
date hereof, unless the price referred to in Section 2(a) hereof is determined
after 4:30 P.M., New York City time on the date hereof, in which case on the
fourth Business Day after the date hereof, or at such other place, time and date
as shall be agreed upon in writing by the Company and the Representatives. The
hour and date of such delivery and payment are herein called the "Time of
Delivery."
The Firm Shares shall be delivered to the Underwriters, for their
respective accounts in fully registered form, in such authorized denominations
and registered in such names as the Representatives may reasonably request in
writing not later than 2:00 P.M., New York City time, on the second Business Day
after the date hereof, or to the extent not so requested, registered in the
respective names of the Underwriters in such authorized denominations as the
Company shall determine. The Company agrees to make the certificates for the
Firm Shares available to the Representatives for checking purposes not later
than 2:00 P.M., New York City time, on the last full Business Day preceding the
Time of Delivery, at the offices of The Depository Trust Company, New York, New
York, or at such other place, time or date as may be agreed upon between the
Company and the Representatives.
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Delivery of any Option Shares, against payment therefor in immediately
available funds by wire transfer to an account designated in writing by the
Company, shall be made at the offices of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York City time,
on the date specified by the Representatives in accordance with Section 2(c)
hereof, or at such other place, time and date as shall be agreed upon in writing
by the Company and the Representatives. The hour and date of any such delivery
and payment are herein called an "Option Shares Time of Delivery."
Option Shares shall be delivered to the Underwriters, for their respective
accounts in fully registered form, in such authorized denominations and
registered in such names as the Representatives may reasonably request in
writing not later than 2:00 P.M., New York City time, on the second Business Day
preceding the Option Shares Time of Delivery with respect to such Option Shares,
or to the extent not so requested, registered in the respective names of the
Underwriters in such authorized denominations as the Company shall determine.
The Company agrees to make the certificates for such Option Shares available to
the Representatives for checking purposes not later than 2:00 P.M., New York
City time, on the last full Business Day preceding such Option Shares Time of
Delivery, at the offices of The Depository Trust Company, New York, New York, or
at such other place, time or date as may be agreed upon between the Company and
the Representatives.
If any one or more of the Underwriters shall default on its obligation or
their obligations to purchase and pay for the Securities that it has or they
have agreed herein to purchase and pay for (such Underwriter or Underwriters
that shall have so defaulted being referred to herein as the "Defaulting
Underwriters"), the Company shall immediately give written notice of such
default to the Representatives and the Underwriters that shall not have so
defaulted (the "Non-defaulting Underwriters") shall have the right, within 24
hours after the receipt of such notice by the Representatives, to determine to
purchase or to procure one or more others, which shall be members of the
National Association of Securities Dealers, Inc. (the "NASD") and reasonably
satisfactory to the Company, to purchase, upon the terms herein set forth, all
(but not less than all) of the Securities that the Defaulting Underwriters so
agreed to purchase (the "Defaulted Securities"). If the Non-defaulting
Underwriters shall determine to exercise such right, the Representatives shall
give notice to the Company of such determination within 24 hours after their
receipt of notice from the Company of such default. If the Representatives shall
fail to give such notice or, within such 24-hour period, shall give notice to
the Company that the Non-defaulting Underwriters will not exercise such right,
then the Company shall have the right, within a further 24 hours after the
failure of the Representatives to give such notice or within 24 hours after its
receipt of such notice from the Representatives, to procure one or more others,
which shall be members of the NASD and reasonably satisfactory to the
Representatives, to purchase, upon the terms herein set forth, all (but not less
than all) of the Defaulted Securities. In the event that the Non-defaulting
Underwriters or the Company shall have arranged for the purchase of the
Defaulted Securities as provided above, then either the Company or the
Representatives shall have the right to postpone the Time of Delivery or an
Options Shares Time of Delivery, as the case may be, for such period, not
exceeding three Business Days, in order that the required changes in the
Registration Statement, the Prospectus and any other documents or arrangements
may be effected. In the event that neither the Non-defaulting Underwriters nor
the
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Company shall have arranged for the purchase of the Defaulted Securities as
provided above, then:
(a) if the Defaulted Securities do not exceed 10% of the Securities
that the Non-defaulting Underwriters have otherwise agreed to purchase, the
Non-defaulting Underwriters shall be obligated to purchase and pay for the
respective amounts of the Securities that they have severally agreed to
purchase hereunder and, in addition, to purchase and pay for (in proportion
to their respective obligations hereunder except as may be otherwise
determined by the Non-defaulting Underwriters) the Defaulted Securities; or
(b) if the Defaulted Securities exceed 10% of the Securities that the
Non-defaulting Underwriters have otherwise agreed to purchase, this
Agreement shall terminate.
Termination of this Agreement pursuant to this Section 4 shall not relieve
any of the Defaulting Underwriters from liability in respect of its obligations
under this Agreement, but shall be without liability on the part of the Company
and the Non-defaulting Underwriters; provided, however, that such termination
shall not affect the payment obligations set forth in Section 5 hereof.
5. Covenants of the Company. The Company agrees with each of the
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Underwriters that it will:
(a) Promptly deliver to the Representatives a copy of each of the
Registration Statement and all amendments thereto (in each case including
copies of all documents (other than exhibits) incorporated in the
Prospectus by reference and all exhibits filed therewith), either signed or
certified by an officer of the Company, and including a copy of each
consent and opinion included therein or filed as an exhibit thereto, either
signed or certified by an officer of the Company, and as many unsigned
copies of the Registration Statement and such amendments, as the
Representatives may reasonably request. The Company also will deliver to
the Representatives as soon as possible after the date of this Agreement
and thereafter from time to time, during such period of time as a
prospectus relating to the Securities is required to be delivered under the
Act, as many copies of the Prospectus, including any amendments or
supplements thereto, as the Representatives may reasonably request for the
purposes of the Act. The copies of the Registration Statement and all
amendments thereto, and the copies of the Prospectus, including any
amendments or supplements thereto, that are furnished to the
Representatives will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(b) Promptly advise the Representatives (i) when any amendment of the
Registration Statement shall have become effective, (ii) of any request by
the Commission for any amendment of the Registration Statement or the
Prospectus and (iii) of the issuance of any stop order under the Act with
respect to the Registration Statement or the institution of any proceedings
therefor of which the Company shall have received
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notice. 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.
The Company will neither file nor use any amendment or supplement to the
Registration Statement or the Prospectus to which the Representatives or
counsel for the Underwriters shall object.
(c) Pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation and filing by it of the
Registration Statement and the Prospectus, (ii) the preparation and
delivery of this Agreement, (iii) the corporate and regulatory actions
precedent to the issuance and delivery of the Securities, (iv) the issuance
and delivery of the Securities, (v) the fees and disbursements of the
Company's counsel and accountants, (vi) except as provided in Section 5(d)
hereof, the printing and delivery to the Underwriters of reasonable
quantities of the Registration Statement, the Prospectus and any amendment
or supplement thereto, (vii) the fees and expenses of any transfer agent
and registrar, (viii) the qualification of the Securities for offering and
sale under state securities laws, including the fees, not to exceed $5,000,
and disbursements of counsel for the Underwriters in connection with such
qualification and blue sky surveys relating thereto, (ix) the fees and
expenses in connection with the listing of the Securities on the NYSE and
the Chicago Stock Exchange and (x) the filing fees incident to any required
review by the NASD of the terms of the sale of the Securities.
(d) During such period of time (not exceeding nine months) after the
effective date of the Registration Statement as a prospectus relating to
the Securities is required to be delivered under the Act, if (i) any event
shall occur as a result of which it is necessary, in the opinion of the
Company and its counsel or the Representatives and counsel for the
Underwriters, to amend or supplement the Prospectus in order to make the
Prospectus not misleading, in the light of then existing circumstances, or
(ii) it shall be necessary to amend or supplement the Registration
Statement or the Prospectus to comply with the Act or the Regulations or
the Exchange Act or the Exchange Act Regulations, forthwith, at its
expense, prepare and furnish to the Representatives a reasonable number of
copies of a supplement or an amendment to the Prospectus that will
supplement or amend the Prospectus so that as so supplemented or amended it
will not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of then existing circumstances, not misleading or it will comply with
the Act or the Regulations or the Exchange Act or the Exchange Act
Regulations. In case any of the Underwriters shall be required to deliver a
prospectus relating to the Securities after the expiration of nine months
from the date of this Agreement, the Company, upon the request of the
Representatives, will furnish to the Underwriters, at the expense of the
Underwriters, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Prospectus, complying with
Section 10(a) of the Act.
(e) Make generally available to its security holders, as soon as
practicable, an earning statement (which need not be audited) covering a
period of 12 months beginning on the first day of the Company's fiscal
quarter next succeeding the effective date of the Registration Statement
that will satisfy the provisions of Section 11(a) of the Act (including
Rule 158 of the Regulations).
9
(f) 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
Representatives may reasonably designate, and file and make such statements
or reports as are or may be required by the laws of such jurisdictions;
provided, however, that the Company shall not be required to qualify as a
foreign corporation or dealer in securities or to file any consents to
service of process under the laws of any jurisdiction.
(g) Except for sales of Common Stock pursuant to its shareholder and
employee plans (including, without limitation, the Company's Dividend
Reinvestment and Stock Purchase Plan), during the period beginning on the
date of this Agreement and continuing to and including the 120th day
following the Time of Delivery, not sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any Common Stock or any security
convertible into or exchangeable for Common Stock without the prior consent
of the Representatives.
All fees and disbursements of counsel for the Underwriters (exclusive of
fees and expenses of such counsel that are to be paid by the Company as set
forth in clause (viii) of Section 5(c) hereof) shall be paid by the
Underwriters; provided, however, that if this Agreement shall be terminated in
accordance with the provisions of Section 6, 7, 8 or 10 hereof, the Company
shall reimburse the Underwriters for their out-of-pocket costs and expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
The Company shall not be required to pay any amount for any expenses of the
Underwriters except as provided in the preceding sentence. The Company shall not
in any event be liable to any of the Underwriters for damages on account of the
loss of anticipated profits.
6. Conditions of Obligations of the Underwriters to Purchase the Firm
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Shares. The several obligations of the Underwriters to purchase and pay for the
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Firm Shares shall be subject to the accuracy of the representations and
warranties of the Company set forth in Section 1 hereof as of the date hereof,
to the accuracy of the statements of officers of the Company made in any
certificate given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder to be performed at or prior to the Time of
Delivery, and to the following additional conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at the Time of Delivery and no order of the
Commission directed to the adequacy or accuracy of any document
incorporated by reference in the Prospectus shall be in effect at such
date; no proceedings for any such purpose shall be pending before, or
threatened by, the Commission at the Time of Delivery; if the Completed
Prospectus is required to be filed with the Commission pursuant to Rule
424(b) of the Regulations, the Completed Prospectus shall have been filed
in the manner and within the time period required by Rule 424(b) of the
Regulations and the Company shall have provided evidence reasonably
satisfactory to the Representatives thereof; and the Representatives shall
have received a certificate dated the Time of Delivery and signed by an
executive officer of the Company to the effect that no such order is in
effect and that no proceedings for any such purpose are pending before, or
to the knowledge of the
10
Company threatened by, the Commission; (ii) there shall not have been any
change in the matters described in the letter furnished pursuant to Section
6(d) hereof the effect of which would, in the opinion of the
Representatives, materially and adversely affect the market for the Firm
Shares; (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), except as may otherwise be stated
in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole; and (iv)
the Company and its subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and its subsidiaries taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto).
(b) At the Time of Delivery, there shall be in full force and effect
orders of the MPSC authorizing the issuance and sale of the Securities on
the terms and conditions herein set forth and containing no provisions
unacceptable to the Representatives by reason of the fact that they are
materially adverse to the Company (it being understood that the MPSC's
orders in effect on the date hereof contain no such unacceptable
provisions).
(c) At the Time of Delivery, the Representatives shall have received
from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President--Finance and
General Counsel of the Company, and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Underwriters, opinions, dated the Time of Delivery, in
substantially the form and substance prescribed in Exhibits A and B,
respectively, hereto.
(d) At the date of this Agreement, Deloitte & Touche LLP shall have
furnished to the Representatives a letter, dated the date of this
Agreement, to the effect that:
(i) they are independent public accountants with respect to the
Company within the meaning of the Act and the Regulations;
(ii) in their opinion, the consolidated financial statements
examined by them and incorporated by reference in the Prospectus comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Regulations and the Exchange Act and the
Exchange Act Regulations;
(iii) on the basis of limited procedures, not constituting an
examination made in accordance with generally accepted auditing
standards, including a reading of the unaudited consolidated financial
information incorporated by reference in the Prospectus, the latest
available interim financial statements of the Company, if any, a reading
of the minute books of the shareholders and the Board of Directors of
the Company since the close of the Company's most recent fiscal year
through a specified date not more than five days prior to the date of
such letter, inquiries of officials of the Company responsible for
financial and accounting matters and such
11
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that (A) (1)
any material modifications should be made to the unaudited consolidated
financial statements incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting principles
or (2) the unaudited consolidated financial statements incorporated by
reference in the Prospectus do not comply with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
Exchange Act Regulations; (B) at the date of the latest available
interim balance sheet of the Company and at a subsequent specified date
not more than five days prior to the date of such letter, there has been
any change in the capital stock, or any increase in the long-term debt,
or any decrease in net assets, in each case of the Company and as
compared with amounts shown in the balance sheet as of the date of the
latest financial statements incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases that the
Registration Statement discloses have occurred or may occur, that were
occasioned by the declaration of dividends or that are described in such
letter identifying the same and specifying the amount thereof (in which
case such letter shall be accompanied by an explanation of the Company
as to the significance thereof unless such explanation is not deemed
necessary by the Representatives); or (C) for the twelve months ended as
of the date of the latest available unaudited financial statements,
there were any decreases, as compared with the comparable period of the
preceding year, in the Company's operating revenues, net income or
earnings available for common stock, except in each case for decreases
that the Registration Statement discloses have occurred or may occur,
that were occasioned by the declaration of dividends or that are
described in such letter identifying the same and specifying the amount
thereof (in which case such letter shall be accompanied by an
explanation of the Company as to the significance thereof unless such
explanation is not deemed necessary by the Representatives); and
(iv) they have performed certain other specified procedures with
respect to certain amounts and percentages set forth in the Registration
Statement or in the documents incorporated by reference in the
Prospectus, as have been reasonably requested by the Representatives or
counsel for the Underwriters and approved by the Company, and have found
them to be in agreement with the records of the Company and the
computations to be arithmetically correct.
(e) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished to the Representatives a letter, dated the Time of Delivery, to
the effect that the statements set forth in the letter furnished pursuant
to Section 6(d) hereof are reaffirmed, except that the specified date
referred to therein shall be a date not more than five days prior to the
Time of Delivery.
(f) At the Time of Delivery, the Representatives shall have received a
certificate, dated the Time of Delivery and signed by an executive officer
of the Company, to the effect that (i) the Company's representations and
warranties set forth in Section 1 hereof are true and correct at and as of
the Time of Delivery with the same effect as if made at
12
and as of the Time of Delivery; provided, however, that (A) if any post-
effective amendment to the Registration Statement shall have been filed
subsequent to the date hereof, the Registration Statement referred to in
Section 1(b) hereof shall be deemed, for the purposes of such certificate,
to include such amendment and (B) if the Completed Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) of the Regulations,
the Prospectus referred to in Sections 1(c), (e), (f), (g) and (i) hereof
shall be deemed, for the purposes of such certificate, to be the Completed
Prospectus, (ii) the Company shall have performed all of its obligations
hereunder to be performed at or prior to the Time of Delivery, (iii) if the
Company shall have been required to file the Completed Prospectus with the
Commission pursuant to Rule 424(b) of the Regulations, the Company shall
have done so and (iv) the orders described in Section 6(b) hereof shall be
in full force and effect.
(g) All legal proceedings to be taken in connection with the issuance
and sale of the Firm Shares shall be reasonably satisfactory in form and
substance to counsel for the Underwriters.
(h) Subsequent to the date of this Agreement, there shall not have
occurred (i) any material change in or affecting the business, properties,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole not contemplated by the Prospectus or any
amendment or supplement thereto (including the documents incorporated by
reference therein at the date thereof) that, in the opinion of the
Representatives, would materially and adversely affect the market for the
Firm Shares or (ii) any event or development relating to or involving the
Company or any officer or director of the Company that, in the opinion of
the Company and its counsel or the Representatives and counsel for the
Underwriters, requires the making of any addition to or change in the
Prospectus or any amendment or supplement thereto in order to state a
material fact required by the Act to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in
the opinion of the Representatives, adversely affect the market for the
Firm Shares.
(i) The Firm Shares shall have been listed (subject to official notice
of issuance) on the NYSE.
(j) The NASD shall have confirmed that it has not raised any objection
with respect to the fairness or reasonableness of the underwriting terms
and arrangements of the offering of the Securities.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled at the Time of Delivery, this Agreement may be terminated by
the Representatives upon notice thereof to the Company at any time at or prior
to the Time of Delivery. Any such termination shall be without liability of any
party to any other party hereunder, except as otherwise provided in Section 5
hereof and provided that the provisions of Sections 1, 5 and 9 hereof shall
survive such termination and remain in full force and effect.
13
7. Conditions to Obligations of the Underwriters to Purchase Option
----------------------------------------------------------------
Shares. The several obligations of the Underwriters to purchase and pay
------
for any Option Shares shall be subject to the accuracy of the representations
and warranties of the Company set forth in Section 1 hereof as of the date
hereof, to the accuracy of the statements of the officers of the Company made in
any certificate given pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder to be performed at or prior to the
Option Shares Time of Delivery with respect to such Option Shares, and to the
following additional conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at such Option Shares Time of Delivery and no
order of the Commission directed to the adequacy or accuracy of any
document incorporated by reference in the Prospectus shall be in effect at
such Option Shares Time of Delivery; no proceedings for any such purpose
shall be pending before, or threatened by, the Commission on such date; if
the Completed Prospectus, or any supplement thereto or to the Prospectus,
is required to be filed with the Commission pursuant to Rule 424(b) of the
Regulations, the Completed Prospectus, or any such supplement, shall have
been filed in the manner and within the time period required by Rule 424(b)
of the Regulations and the Company shall have provided evidence reasonably
satisfactory to the Representatives thereof; and the Representatives shall
have received a certificate dated such Option Shares Time of Delivery and
signed by an executive officer of the Company to the effect that no such
order is in effect and that no proceedings for any such purpose are pending
before, or to the knowledge of the Company threatened by, the Commission;
(ii) there shall not have been any change in the matters described in the
letter furnished pursuant to Section 6(d) hereof the effect of which would,
in the opinion of the Representatives, materially and adversely affect the
market for such Option Shares; (iii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
except as may otherwise be stated in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
taken as a whole; and (iv) the Company and its subsidiaries shall not have
any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and its
subsidiaries taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto).
(b) At such Option Shares Time of Delivery, there shall be in full
force and effect orders of the MPSC authorizing the issuance and sale of
the Securities on the terms and conditions herein set forth and containing
no provisions unacceptable to the Representatives by reason of the fact
that they are materially adverse to the Company (it being understood that
the MPSC's orders in effect on the date hereof contain no such unacceptable
provisions).
(c) At such Option Shares Time of Delivery, the Representatives shall
have received from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President--
Finance and General Counsel of the Company, and Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the
14
Underwriters, opinions, dated such Option Shares Time of Delivery, with
respect to such Option Shares in substantially the form and substance
prescribed in Exhibits A and B, respectively, hereto.
(d) At such Option Shares Time of Delivery, Deloitte & Touche LLP
shall have furnished to the Representatives a letter, dated such Option
Shares Time of Delivery, to the effect that the statements set forth in the
letter furnished pursuant to Section 6(d) hereof are reaffirmed, except
that the specified date referred to therein shall be a date not more than
five days prior to such Option Shares Time of Delivery.
(e) At such Option Shares Time of Delivery, the Representatives shall
have received a certificate, dated such Option Shares Time of Delivery and
signed by an executive officer of the Company, to the effect that (i) the
Company's representations and warranties set forth in Section 1 hereof are
true and correct at and as of such Option Shares Time of Delivery with the
same effect as if made at and as of such Option Shares Time of Delivery;
provided, however, that (A) if any post-effective amendment to the
Registration Statement shall have been filed subsequent to the date hereof,
the Registration Statement referred to in Section 1(b) hereof shall be
deemed, for the purposes of such certificate, to include such amendment and
(B) if the Completed Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) of the Regulations, the Prospectus referred to in
Sections 1(c), (e), (f), (g) and (i) hereof shall be deemed, for the
purposes of such certificate, to be the Completed Prospectus, (ii) the
Company shall have performed all of its obligations hereunder to be
performed at or prior to such Option Shares Time of Delivery, (iii) if the
Company shall have been required to file the Completed Prospectus with the
Commission pursuant to Rule 424(b) of the Regulations, the Company shall
have done so and (iv) the orders described in Section 7(b) hereof shall be
in full force and effect.
(f) All legal proceedings to be taken in connection with the issuance
and sale of the Securities shall be reasonably satisfactory in form and
substance to counsel for the Underwriters.
(g) Subsequent to the date of this Agreement, there shall not have
occurred (i) any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole not contemplated by the
Prospectus or any amendment or supplement thereto (including the documents
incorporated therein by reference at the date thereof) that, in the opinion
of the Representatives, would materially, adversely affect the market for
the Securities or (ii) any event or development relating to or involving
the Company or any officer or director of the Company that, in the opinion
of the Company and its counsel or the Representatives and counsel for the
Underwriters, requires the making of any addition to or change in the
Prospectus or any amendment or supplement thereto in order to state a
material fact required by the Act to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in
the opinion of the Representatives, adversely affect the market for the
Securities.
15
(h) Such Option Shares shall have been listed (subject to official
notice of issuance) on the NYSE.
In case any of the conditions specified above in this Section 7 shall not
have been fulfilled at such Option Shares Time of Delivery, this Agreement may
be terminated by the Representatives upon notice thereof to the Company at any
time at or prior to such Option Shares Time of Delivery. Any such termination
shall be without liability of any party to any other party hereunder, except as
otherwise provided in Section 5 hereof and provided that the provisions of
Sections 1, 5 and 9 hereof shall survive such termination and remain in full
force and effect.
8. Conditions of Company's Obligation. The obligation of the Company to
----------------------------------
deliver the Firm Shares at the Time of Delivery and any Option Shares at the
Option Shares Time of Delivery with respect to such Option Shares shall be
subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at the Time of Delivery or such Option Shares
Time of Delivery, as the case may be, and no order of the Commission
directed to the adequacy or accuracy of any document incorporated by
reference in the Prospectus shall be in effect at such date; and no
proceedings for any such purpose shall be pending before, or threatened by,
the Commission at the Time of Delivery or such Option Shares Time of
Delivery, as the case may be.
(b) At the Time of Delivery or such Option Shares Time of Delivery, as
the case may be, there shall be in full force and effect orders of the MPSC
authorizing the issuance and sale of the Securities on the terms and
conditions herein set forth and containing no provisions unacceptable to
the Company by reason of the fact that they are materially adverse to the
Company (it being understood that the MPSC's orders in effect on the date
hereof contain no such unacceptable provisions).
In case any of the conditions specified above in this Section 8 shall not
have been fulfilled at the Time of Delivery or such Option Shares Time of
Delivery, as the case may be, this Agreement may be terminated by the Company,
upon notice thereof to the Representatives. Any such termination shall be
without liability of any party to any other party hereunder, except as otherwise
provided in Section 5 hereof and provided that the provisions of Sections 1, 5
and 9 hereof shall survive such termination and remain in full force and effect.
9. Indemnification; Contribution. (a) The Company agrees to indemnify and
-----------------------------
hold harmless each of the Underwriters and each person, if any, who controls any
of the Underwriters within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against (i) any and all losses, claims, damages, liabilities
and expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including any information deemed to be a
part thereof pursuant to Rule 430A(b) of the Regulations, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus relating to the Securities or the Prospectus (or any
16
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; (ii) any and all losses, claims, damages, liabilities and
expenses whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to the last sentence of Section
9(c) hereof) any such settlement is effected with the written consent of the
Company; and (iii) any and all expense whatsoever, as incurred (including,
subject to Section 9(c) hereof, the fees and disbursements of counsel chosen by
the Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
clause (i) or (ii) above; provided, however, that the indemnity agreement
contained in this Section 9(a) shall not (A) apply to any such losses, claims,
damages, liabilities or expenses to the extent arising out of any such untrue
statement or alleged untrue statement, or any such omission or alleged omission,
made in reliance upon and in conformity with information furnished in writing to
the Company, through the Representatives by any Underwriter, expressly for use
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus relating to the Securities or the Prospectus (or any amendment or
supplement thereto) or (B) inure to the benefit of any Underwriter or any person
who controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act on account of any such losses, claims, damages,
liabilities or expenses arising from the sale of any of the Securities to any
person if any amendment or supplement to the Prospectus (excluding any document
incorporated or deemed to be incorporated by reference therein), furnished to
the Representatives by the Company prior to the sending or giving of written
confirmation of such sale to such person, was not sent or given by or on behalf
of such Underwriter to such person with or prior to such written confirmation
and any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, was corrected in such Prospectus.
(b) Each of the Underwriters, severally, agrees to indemnify and hold
harmless the Company, its directors, each of its officers who shall have signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, claims, damages, liabilities and expenses described
in Section 9(a) hereof, as incurred, but only with respect to the untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
relating to the Securities or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company, through the Representatives by such Underwriter,
expressly for use in connection with the Registration Statement (or any
amendment thereto) or any preliminary prospectus relating to the Securities or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may
17
be sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability on account of this indemnity
agreement except to the extent that such indemnifying party has been prejudiced
in any material respect by such failure or from any liability that such
indemnifying party may have to such indemnified party otherwise than on account
of this indemnity agreement. In the case of parties indemnified pursuant to
Section 9(a) hereof, counsel to the indemnified parties shall be selected by the
Representatives and, in the case of parties indemnified pursuant to Section 9(b)
hereof, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party shall be entitled to participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 9 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. If at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section
9(a)(ii) hereof effected without its written consent if (A) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request, (B) such indemnifying party shall have received notice of the
terms of such settlement at least 75 days prior to such settlement being entered
into and (C) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in Section 9(a) or (b) hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, claims, damages, liabilities and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the
18
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, or if such indemnified party failed to give the notice
required under Section 9(c) hereof and such indemnifying party was prejudiced in
a material respect by such failure, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above 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, 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 in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on such cover. 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 any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by 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 9(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above in this Section 9(d). The aggregate
amount of losses, claims, damages, liabilities and expenses incurred by an
indemnified party and referred to above in this Section 9(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9(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 it 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 any such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(d), each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who shall have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company.
The Underwriters' respective obligations to contribute pursuant to this Section
9(d) are several in proportion to the number of Firm Shares set forth opposite
their respective names in Schedule I hereto and not joint.
10. Termination. (a) The Representatives may terminate this Agreement
-----------
at any time at or prior to the Time of Delivery, or rescind the exercise of the
Option by the Underwriters at any time prior to an Option Shares Time of
Delivery, by notice to the Company, if prior to the Time of Delivery or such
Option Shares Time of Delivery, as the case may be, (i) there has been, since
the date of this Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the business or the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries
19
taken as a whole, whether or not arising in the ordinary course of business, or
(ii) there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or escalation of any existing
hostilities or calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) trading in the Common
Stock has been suspended or materially limited by the Commission or the NYSE, or
trading generally on the NYSE or the American Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by the NYSE, the American Stock Exchange or the Nasdaq National Market
System or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal, New
York or Missouri authorities.
(b) Notwithstanding any termination of this Agreement pursuant to this
Section 10, such termination will be without liability of any party to any other
party hereunder, except as otherwise provided in Section 5 hereof and provided
that the provisions of Sections 1, 5 and 9 hereof shall survive such termination
and remain in full force and effect.
11. Notices. All statements, requests, notices and agreements hereunder
-------
shall be in writing or by telephone if confirmed in writing within 24 hours and,
if to the Underwriters, shall be sufficient in all respects if delivered or sent
by registered mail to the Representatives at the address given on the last page
hereof; and, if to the Company, shall be sufficient in all respects if delivered
or sent by registered mail to the Company, c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.,
Senior Vice President--Finance and General Counsel, Laclede Gas Company, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; provided, however, that any notice to
any of the Underwriters pursuant to Section 9(c) hereof shall be delivered or
sent by registered mail to such party at its principal executive offices.
12. Information for Use in Prospectuses. The information with respect
-----------------------------------
to the price to the public of the Securities to be set forth on, and the
information to be set forth in the last paragraph of, the cover page of, and the
information to be set forth in the second paragraph under the table under
"Underwriting" in, the Prospectus shall be deemed to have been furnished in
writing to the Company through the Representatives by or on behalf of the
Underwriters specifically for use therein.
13. Representations and Warranties of Representatives. Each of the
-------------------------------------------------
Representatives represents and warrants to the Company that it full power and
authority (a) to enter into this Agreement on behalf of each of the Underwriters
listed in Schedule I hereto and (b) to act on behalf of each of the Underwriters
with respect to the performance of this Agreement. In all dealings hereunder,
the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of all of the Underwriters made or given either by
the Representatives jointly or by either of the Representatives individually.
14. Miscellaneous. (a) This Agreement shall be binding upon the
-------------
Underwriters and the Company and shall inure solely to the benefit of the
Underwriters, the Company and, to
20
the extent provided in Section 9 hereof, the directors and officers of the
Company and each person who controls the Company or any of the Underwriters, and
in each case 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 purchaser of any of the Securities from any of the
Underwriters shall be deemed a successor or assign by reason merely of such
purchase.
(b) This Agreement shall be construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed in the State
of New York.
(c) 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 counterparts shall together constitute one and the same instrument.
(d) All representations and warranties, at and as of the respective dates
made, and all agreements contained in this Agreement, or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or any controlling person, and shall survive
delivery of the Securities to the Underwriters.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the counterparts hereof enclosed, and upon the
acceptance hereof by you, this letter and such acceptance hereof shall
constitute a binding agreement between the several Underwriters and the Company.
Very truly yours,
LACLEDE GAS COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board, President and
Chief Executive Officer
Accepted at New York, New York
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
For themselves and as Representatives of
the other Underwriters named in Schedule I
to this Underwriting Agreement.
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Authorized Signatory
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
22
SCHEDULE I
Number of Shares
Underwriters to be Purchased
------------ ----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 325,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 325,000
BT Alex. ▇▇▇▇▇ Incorporated 50,000
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. 50,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. 50,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 50,000
PaineWebber Incorporated 50,000
Prudential Securities Incorporated 50,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 50,000
▇▇▇▇▇▇ ▇. ▇▇▇▇ & Company 25,000
Huntleigh Securities Corporation 25,000
▇▇▇▇▇, ▇▇▇▇▇ & Co. 25,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 25,000
---------
Total 1,100,000
=========
Exhibit A
---------
[Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.]
[Letterhead of the Company]
May 5, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement referred
to below (the "Underwriters")
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am Senior Vice President--Finance and General Counsel of Laclede Gas
Company (the "Company") and have acted in that capacity in connection with the
issuance and sale by the Company pursuant to the Underwriting Agreement dated
April 29, 1999 between the Company and you, as Representatives of the
Underwriters (the "Underwriting Agreement"), of 1,250,000 shares of the
Company's Common Stock, par value $1 per share (the "Shares"). The terms
"Registration Statement" and "Prospectus" as used herein have the same meanings
as when used in the Underwriting Agreement.
I am familiar with the Articles of Incorporation, as amended, and the By-
Laws, as currently in effect, of the Company (the "Articles" and the "By-Laws,"
respectively) and the records of various corporate and other proceedings,
including the actions taken by the
Company's Board of Directors relating to the authorization, issuance and sale of
the Shares. I have participated in the preparation of or reviewed (a) the
Underwriting Agreement; (b) the Registration Statement and the Prospectus; and
(c) the proceedings before the Public Service Commission of the State of
Missouri (the "MPSC") for authority to issue and sell the Shares and the order
dated January 12, 1999 and the supplemental order dated January 27, 1999 for
authority to issue and sell the Shares entered by the MPSC in respect thereto
(such orders, the "MPSC Orders").
I have examined the Annual Report on Form 10-K of the Company for the
fiscal year ended September 30, 1998, the Quarterly Reports on Form 10-Q of the
Company for the quarterly periods ended December 31, 1998 and March 31, 1999,
the Current Report on Form 8-K of the Company, dated January 28, 1999 and the
Form 8-A Registration Statement of the Company dated April 3, 1996 (the
"Exchange Act Documents"), each as filed with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in the Prospectus.
I have been advised by the Staff of the Commission of the issuance of an
order from the Commission to the Company as to the effectiveness of the
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"). I have also examined such documents and satisfied myself as
to such other matters as I have deemed necessary to render this opinion. In the
course of such examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. I have also relied upon
information submitted to me by certain officers of the Company with respect to
the existence or non-existence of certain facts that form the basis for the
opinions set forth herein. Although I have not conducted any independent
investigations of the accuracy of various of the matters covered by such
information supplied by officers of the Company, I have no reason to believe
that any of the matters covered thereby are inaccurate. I have also relied on
certain documents, instruments and certificates of public officials. I have not
examined the certificates for the Shares, except a specimen thereof, and have
relied upon a certificate of the transfer agent and registrar for the Shares as
to the issuance, registration and countersignature thereof. With respect to the
matters relating to the outstanding shares of capital stock of the Company
(other than the Shares) expressed in paragraph 3. below, I have relied upon the
opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, dated July 8, 1960, as to such
counsel's opinion with respect to the due and valid authorization and issuance
of, and the fully paid and non-assessable nature of, any such shares that were
issued on or prior to the date of such opinion. Upon the basis of my familiarity
with the foregoing and with the Company's properties and affairs generally, and
as limited by the qualifications and limitations stated herein, I am of the
opinion that:
1. Each of the Company, Laclede Pipeline Company, Laclede Investment
Corporation and Laclede Energy Resources, Inc. is a corporation duly
organized and validly existing in good standing under the laws of the State
of Missouri.
2. The Company is a public utility corporation, is duly authorized by
the Articles to conduct the utility business that it is described in the
Prospectus as
A-2
conducting, and, by virtue of its possession of valid and subsisting
licenses, franchises and permits, and its compliance with the laws of the
State of Missouri, is duly authorized to conduct such business in that
State. In this regard, it should be noted that the Company has not renewed
its franchise in Florissant, Missouri, which franchise expired in 1992; and
that since that time the Company has continued to provide service in that
community without a formal franchise.
3. All of the outstanding shares of capital stock of the Company
(other than the Shares) have been duly and validly authorized and issued
and are fully paid and non-assessable.
4. The Shares have been duly and validly authorized and, when the
Shares shall have been delivered against payment therefor as provided in
the Underwriting Agreement, they will have been duly and validly issued and
will be fully paid and non-assessable and entitled to the rights set forth
in the Articles and the Rights Agreement dated as of April 3, 1996 between
the Company and UMB Bank, National Association (successor rights agent to
Boatmen's Trust Company), as rights agent thereunder; and, other than as
set forth in the Prospectus, there are no preemptive rights or other rights
to subscribe for or to purchase, or any restriction upon the voting or
transfer of, the Shares pursuant to the Articles or the By-Laws, or other
agreement or instrument known to me to which the Company is a party or by
which it is bound or to which any of the property of the Company is
subject.
5. The statements made in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute
summaries of the terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material respects.
6. The Shares have been listed (subject to official notice of
issuance) on the New York Stock Exchange.
7. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
8. The Registration Statement has become and is effective under the
Securities Act; and, to the best of my knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8(d) of
the Securities Act.
9. The MPSC has issued the MPSC Orders authorizing the issuance and
sale by the Company of the Shares; the issuance and sale of the Shares in
accordance with the Underwriting Agreement are in conformity with the terms
of the MPSC Orders; and no further approval, authorization, consent or
other order of any public board or body (other than in connection or in
compliance with the provisions of the securities or blue sky laws of any
jurisdiction) is legally required for the issuance and sale of the Shares
on the terms and conditions set forth in the Underwriting Agreement.
A-3
10. There are no legal, governmental or administrative proceedings
pending to which the Company is a party or of which any property of the
Company is the subject, other than as set forth in the Prospectus
(including the Exchange Act Documents) and other than proceedings incident
to the kind of business conducted by the Company, the outcome of which,
singly or in the aggregate, might reasonably be expected to have a
materially adverse effect on the financial position, stockholders' equity
or results of operations of the Company; and, to the best of my knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
11. The consummation of the transactions contemplated in the
Underwriting Agreement and the fulfillment of the terms thereof will not
result in a breach of any of the terms or provisions of, or constitute a
default under, (i) any indenture, mortgage, deed of trust or other material
agreement or instrument known to me to which the Company is a party or by
which it is bound or to which any of the property of the Company is
subject, (ii) the Articles or the Bylaws or (iii) any order, rule or
regulation of any court or other governmental body having jurisdiction over
the Company or any of its property, or any statute, in each case of the
United States of America or the State of Missouri, or, to the best of my
knowledge, any order, rule or regulation of any other court or other
governmental body having jurisdiction over the Company or any of its
property or any other statute.
I have not independently verified the accuracy, completeness or fairness of
the statements made or included in the Registration Statement, the Prospectus or
the Exchange Act Documents and take no responsibility therefor, except insofar
as such statements relate to me and as and to the extent expressly set forth
herein. In the course of the preparation of the Registration Statement and the
Prospectus, I and other members of the Company's legal department (the "Legal
Department") have participated in conferences with certain of the Company's
officers and employees, with representatives of Deloitte & Touche LLP, the
independent accountants for the Company, with your representatives and with
counsel for the Underwriters. Based on my examination of the Registration
Statement and the Prospectus, and the investigations made in connection with the
preparation of the Registration Statement and the Prospectus and the Legal
Department's participation in the conferences referred to above, (i) I am of the
opinion that the Registration Statement, as of the date it was declared
effective by the Commission, and the Prospectus, as of the date it was filed
with the Commission pursuant to Rule 424(b) under the Securities Act, complied
as to form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder and that
the Exchange Act Documents complied as to form when filed in all material
respects with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that in each case I express no
opinion with respect to the financial statements or schedules or other financial
data contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents, and (ii) I have no reason to believe
that the Registration Statement (including the Exchange Act Documents), as of
the date it was declared effective by the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus (including the Exchange Act Documents), as of
the date it was filed with the Commission pursuant to Rule 424(b) under the
A-4
Securities Act or as of the date hereof, 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 made therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case I express no opinion or belief with respect to the financial statements or
schedules or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act Documents.
In passing upon the form of the Registration Statement, the form of the
Prospectus and the forms of the Exchange Act Documents, I necessarily assume the
correctness and completeness of the statements made by the Company and
information included therein and take no responsibility therefor, except insofar
as such statements relate to me and as set forth in paragraph 5. above.
I have examined the portions of the information contained in the
Registration Statement that are stated therein to have been made on my authority
and, upon my review thereof, I believe such information to be correct.
I am a member of the Bar of the State of Missouri and, except with respect
to the matters expressed in paragraphs 9., 10. and 11. above, I do not express
any opinion herein as to any matters governed by any laws other than the laws of
the State of Missouri and the Federal laws of the United States of America.
I am also delivering this opinion to Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
who is entitled to rely upon this opinion to the same extent as if such opinion
were addressed to such firm. This opinion is rendered to you and Winthrop,
Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in connection with the above-described transaction.
This opinion may not be relied upon by you or Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ for any other purpose, or relied upon by or furnished to any other
person, firm or corporation (other than the Underwriters), without my prior
written consent.
This opinion speaks only as of its date. I have no obligation to the
Underwriters (including you, as their Representatives) or to Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ of changes in law or fact that occur after the date of this
opinion, even where such change may affect the legal analysis, a legal
conclusion or an informational confirmation in this opinion.
Very truly yours,
A-5
Exhibit B
---------
[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
May 5, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below (the "Underwriters")
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance and sale by
Laclede Gas Company (the "Company") of 1,250,000 shares of the Company's Common
Stock, par value $1 per share (the "Shares"), pursuant to the Underwriting
Agreement dated April 29, 1999 between the Company and you, as Representatives
of the Underwriters (the "Underwriting Agreement"). The terms "Registration
Statement" and "Prospectus" as used herein have the same meanings as when used
in the Underwriting Agreement.
We have reviewed the Registration Statement and the Prospectus, which
pursuant to Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended September 30, 1998, the Quarterly Reports
on Form 10-Q of the Company for the quarterly
periods ended December 31, 1998 and March 31, 1999, the Current Report on
Form 8-K of the Company dated January 28, 1999 and the Form 8-A Registration
Statement of the Company dated April 3, 1996 (the "Exchange Act Documents"),
each as filed with the Securities and Exchange Commission (the "Commission")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In
addition, we have reviewed, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificates for the
Shares, of which we have reviewed a specimen, and have relied upon a certificate
of the transfer agent and registrar for the Shares as to the issuance,
registration and countersignature thereof) and upon originals or copies,
certified or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In such review, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
We are members of the Bar of the State of New York and we do not express
any opinion herein as to any matters governed by any laws other than the laws of
the State of New York, the Federal laws of the United States of America and, to
the extent set forth herein, the laws of the State of Missouri. With respect to
legal matters governed by the laws of the State of Missouri, we understand that
you are relying upon the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice
President--Finance and General Counsel of the Company, of even date, addressed
to you. We believe that such opinion is satisfactory in form and that you are
justified in relying thereon and we, on our part, have relied solely on said
opinion as to such matters. We do not pass upon legal matters regarding the
incorporation of the Company or its qualification to do business in any
jurisdiction, as to which we understand you are relying upon the aforesaid
opinion of ▇▇. ▇▇▇▇▇▇▇.
Based upon the foregoing and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Shares have been duly authorized by the Company and, upon
payment and delivery in accordance with the Underwriting Agreement, will be
validly issued, fully paid and nonassessable.
2. The statements made in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute
summaries of the terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material respects.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
B-2
4. The Registration Statement has become and is effective under the
Securities Act; and, to the best of our knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under Section
8(d) of the Securities Act.
5. No approval, authorization, consent or other order of any
governmental agency or body of the United States of America or the State of
New York is legally required for the issuance and sale by the Company of
the Shares on the terms and conditions set forth in the Underwriting
Agreement (other than the order of the Commission declaring the
Registration Statement effective and except that we express no opinion as
to any such approval, authorization, consent or other order as may be
required under the provisions of the securities or blue sky laws of the
State of New York in connection with the purchase and distribution of the
Shares by the Underwriters).
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Registration Statement, the Prospectus
or the Exchange Act Documents and take no responsibility therefor, except
insofar as such statements relate to us and to the extent expressly set forth
herein. In the course of the preparation by the Company of the Registration
Statement and the Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain of its officers and employees, with
counsel for the Company, with representatives of Deloitte & Touche LLP, the
independent accountants who audited certain of the financial statements included
in the Exchange Act Documents, and with your representatives. We did not
participate in the preparation of, or in the selection by the Company of the
information included or excluded from, the Exchange Act Documents. Based on our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement and the Prospectus (excluding the Exchange Act Documents)
and our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of the date it was declared
effective by the Commission, and the Prospectus, as of the date it was filed
with the Commission pursuant to Rule 424(b) under the Securities Act, complied
as to form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder, except
that in each case we express no opinion with respect to the financial statements
or schedules or other financial data contained or incorporated by reference in
the Registration Statement, the Prospectus or the Exchange Act Documents, and
(ii) we have no reason to believe that the Registration Statement, as of the
date it was declared effective by the Commission, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
that the Prospectus, as of the date it was filed with the Commission pursuant to
Rule 424(b) under the Securities Act or as of the date hereof, 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 made therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the financial
statements or schedules or other financial data contained or incorporated by
reference in the Registration Statement, the Prospectus or the Exchange Act
Documents.
In passing upon the form of the Registration Statement and the form of the
Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company
B-3
and the information included or incorporated by reference in the Registration
Statement and the Prospectus and take no responsibility therefor, except insofar
as such statements relate to us and as set forth in paragraph 2. above.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person, firm or corporation (other
than the Underwriters), without our prior written consent.
Very truly yours,
B-4