NORTHWEST NATURAL GAS COMPANY880,000 Shares of Common StockUNDERWRITING AGREEMENTDated: November 10, 2016
Exhibit
1.1
880,000 Shares of Common Stock Dated: November 10,
2016 |
TABLE OF
CONTENTS
Page |
||
SECTION 1. Representations and
Warranties.................................................................................. |
2 |
|
SECTION 2. Sale and Delivery to
Underwriters; Closing............................................................... |
18 |
|
SECTION 3. Covenants of the
Company......................................................................................... |
19 |
|
SECTION 4. Payment of
Expenses.................................................................................................. |
24 |
|
SECTION 5. Conditions of
Underwriters’ Obligations.................................................................... |
25 |
|
SECTION 6.
Indemnification........................................................................................................... |
28 |
|
SECTION 7.
Contribution................................................................................................................ |
31 |
|
SECTION 8. Representations, Warranties and
Agreements to Survive Delivery............................. |
32 |
|
SECTION 9. Termination of
Agreement........................................................................................... |
32 |
|
SECTION 10. Default by One or More of the
Underwriters.............................................................. |
33 |
|
SECTION 11.
Notices......................................................................................................................... |
34 |
|
SECTION 12.
Parties.......................................................................................................................... |
34 |
|
SECTION 13. GOVERNING LAW AND
TIME............................................................................... |
34 |
|
SECTION 14. Effect of
Headings....................................................................................................... |
34 |
|
SECTION 15.
Definitions................................................................................................................... |
35 |
|
SECTION 16. Permitted Free Writing
Prospectuses.......................................................................... |
38 |
|
SECTION 17. Absence of Fiduciary
Relationship............................................................................. |
39 |
|
SECTION 18. Research Analyst
Independence.................................................................................. |
39 |
|
SECTION 19. Trial By
Jury................................................................................................................ |
39 |
|
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EXHIBITS
Exhibit A |
-
Underwriters |
Exhibit B |
-
Significant Subsidiaries of the Company |
Exhibit C |
-
List of Persons Subject to Lock-Up |
Exhibit D |
-
Form of Lock-Up Agreement |
Exhibit E |
-
Form of Opinion of In-House Counsel |
Exhibit F |
-
Form of Opinion of Company Counsel |
Exhibit G |
-
Form of Opinion of Washington Counsel |
Exhibit H |
-
Price-Related Information |
Exhibit I |
-
Issuer General Use Free Writing
Prospectuses |
ii
880,000 Shares of Common
Stock
November 10, 2016
▇▇▇▇▇ Fargo
Securities, LLC
▇.▇. ▇▇▇▇▇▇ Securities
LLC
RBC Capital Markets,
LLC
As Representatives of the several
Underwriters
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
RBC Capital Markets, LLC
Three World Financial
Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
Ladies and
Gentlemen:
Northwest Natural Gas Company, an Oregon corporation (the “Company”), confirms its agreement with ▇▇▇▇▇ Fargo Securities, LLC (“▇▇▇▇▇ Fargo”) and each of the other Underwriters named in Exhibit A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇ Fargo, ▇.▇. ▇▇▇▇▇▇ Securities LLC (“▇.▇. ▇▇▇▇▇▇”) and RBC Capital
Markets, LLC (“RBC”) are acting as representatives (in such capacity, the “Representatives”), with respect to the issue and sale by the Company of a total of 880,000 shares (the
“Initial Securities”) of the Company’s common stock, no par value (the “Common Stock”), and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of
Initial Securities set forth in said Exhibit A hereto, and with respect to the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of
132,000 additional shares of Common Stock to cover over‑allotments, if any. The Initial Securities to be purchased by the Underwriters and all or any part of the 132,000 shares of Common Stock subject to the option described in
Section 2(b) hereof (the “Option Securities”) are hereinafter called, collectively,
the “Securities.” Certain terms used in this Agreement are defined in Section 15
hereof.
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The Company has prepared and previously delivered to you a preliminary prospectus supplement dated November 10, 2016 relating to the Securities and a related prospectus dated November 8, 2016
(the “Base Prospectus”). Such preliminary prospectus supplement and Base Prospectus, including
the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are hereinafter called, collectively, the “Pre-Pricing Prospectus.” Promptly after the execution and delivery of this Agreement, the Company will prepare and
file with the Commission a prospectus supplement dated November 10, 2016 (the “Prospectus
Supplement”) and will file the Prospectus Supplement and the Base Prospectus with the Commission, all in accordance with the provisions of Rule 430B and Rule 424(b), and the
Company has previously advised you of all information (financial and other) that will be set forth therein. The Prospectus Supplement and the Base Prospectus, in the form first furnished to the Underwriters for use in connection with the offering of
the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S‑3 under the
1933 Act, are herein called, collectively, the
“Prospectus.”
SECTION 1. Representations and Warranties.
(a)Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, as of the Applicable Time, as of the Closing
Date referred to in Section 2(c) hereof, and as of each Option Closing Date (if any) referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(1)Status as a Well-Known Seasoned Issuer. (A) At the respective times the Registration Statement or any amendments thereto were filed with the Commission, (B) at the time of the most recent amendment to the Registration Statement for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at any time
the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163 and (D) at the date hereof, the Company was
and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405 (without taking into account any determination made by the
Commission pursuant to paragraph (2) of the definition of such term in Rule 405). The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Securities, since their
registration on the Registration Statement, have been and remain eligible for registration by the Company on such an “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) objecting to the use of the automatic shelf registration statement form. Any written communication that was an offer relating to the Securities made by the Company or any person acting on its behalf (within the meaning, for this
sentence only, of Rule 163(c)) prior to the filing of the Registration Statement has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the
legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
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(2)Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the 1933 Act and the Securities have been duly registered under the 1933 Act pursuant to the Registration Statement. The Registration
Statement and any post-effective amendments thereto have become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Registration Statement was initially filed
with the Commission on November 8,
2016.
(3)Registration Statement, Prospectus and Disclosure at Time of Sale. At the respective times that the Registration Statement and any
amendments thereto became effective, at each time subsequent to the filing of the Registration Statement that the Company filed an Annual Report on Form 10-K (or any amendment thereto) with the Commission, at each deemed effective date with
respect to the Underwriters pursuant to Rule 430B(f)(2), and at the Closing Date (and, if any Option Securities are purchased, at the applicable Option Closing Date), the Registration Statement and any amendments to any of the foregoing
complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
At the respective times the Prospectus or any amendment or supplement thereto was filed pursuant to Rule 424(b) or issued, at the Closing Date (and, if any Option Securities are purchased, at
the applicable Option Closing Date), and at any time when a prospectus is required (or, but for the provisions of Rule 172, would be required) by applicable law to be delivered in connection with sales of Securities (whether to meet the
requests of purchasers pursuant to Rule 173(d) or otherwise), neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading.
As of the Applicable Time (except in the case of clause
(z) below) and as of each time prior to the Closing Date that an investor agrees (orally or in writing) to purchase or, if applicable, reconfirms (orally or in writing) an agreement to purchase any Securities from the Underwriters, neither (x) any
Issuer General Use Free Writing Prospectuses, if any, issued at or prior to the Applicable Time, the Pre‑Pricing Prospectus as of the Applicable Time and the information, if any, included on Exhibit H hereto, all considered together
(collectively, the “General Disclosure Package”), nor (y) any individual Issuer Limited Use
Free Writing Prospectus, when considered together with the General Disclosure Package, nor (z) any Issuer General Use Free Writing Prospectuses issued subsequent to the Applicable Time, when considered together with the General Disclosure Package,
included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading.
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Each preliminary prospectus and the Prospectus and any amendments or supplements to any of the foregoing filed as part of the Registration Statement or any amendment thereto, or filed pursuant to
Rule 424 under the 1933 Act, or delivered to the Underwriters for use in connection with the offering of the Securities, complied when so filed or when so delivered, as the case may be, in all material respects with the 1933 Act and the 1933
Act Regulations.
The representations and warranties in the
preceding paragraphs of this Section 1(a)(3) do not apply to statements in or omissions from the Registration Statement, any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any the
foregoing made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by
the Underwriters as aforesaid consists of the information described as such in Section 6(b) hereof.
At the respective times that the Registration Statement or any amendment to any of the foregoing were filed and as of the earliest time after the filing of the Registration Statement that the Company or
any other offering participant made a bona fide offer of the Securities within the meaning of Rule 164(h)(2), and at the date hereof, the Company was not and is not an “ineligible issuer” as defined in Rule 405, in each case
without taking into account any determination made by the Commission pursuant to paragraph (2) of the definition of such term in Rule 405; and without limitation to the foregoing, the Company has at all relevant times met, meets and will
at all relevant times meet the requirements of Rule 164 for the use of a free writing prospectus (as defined in Rule 405) in connection with the offering contemplated
hereby.
The copies of the Registration Statement and any amendments
to any of the foregoing and the copies of each preliminary prospectus, each Issuer Free Writing Prospectus that is required to be filed with the Commission pursuant to Rule 433 and the Prospectus and any amendments or supplements to any of the
foregoing, that have been or subsequently are delivered to the Underwriters in connection with the offering of the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise) were and will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. For purposes of this Agreement, references to the “delivery” or “furnishing” of any of
the foregoing documents to the Underwriters, and any similar terms, include, without limitation, electronic
delivery.
Each Issuer Free Writing Prospectus (if any), as of its
issue date and at all subsequent times through the completion of the public offering and sale of the Securities did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, any preliminary prospectus or the Prospectus that has not been superseded or
modified.
(4)Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, any preliminary prospectus and the Prospectus, at the respective times when they were or hereafter are filed with the
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Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not
misleading.
(5)Independent Accountants. The accountants who certified the financial statements and any supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus are independent public
accountants as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the PCAOB.
(6)Financial Statements. The financial statements of the Company included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules (if any) and notes, present fairly the
financial position of the Company and its consolidated subsidiaries at the dates indicated and the results of operations, changes in stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods
specified; and all such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and comply with all applicable accounting requirements under the 1933 Act and the 1933 Act
Regulations, or the 1934 Act and the 1934 Act Regulations, as applicable. The supporting schedules, if any, included in the Registration Statement present fairly, in accordance with GAAP, the information required to be stated therein. The
information in the Pre‑Pricing Prospectus and the Prospectus under the caption “-Summary-Summary Consolidated Financial Information” presents fairly the information shown therein and has been compiled on a basis consistent with
that of the audited financial statements of the Company included in the Registration Statement, the General Disclosure Package and the Prospectus. The Company’s ratios of earnings to fixed charges and, if applicable, ratios of earnings to
combined fixed charges and preferred stock dividends (actual and, if any, pro forma) included in the Registration Statement, the General Disclosure Package and the Prospectus comply with Item 503(d) of Regulation S-K of the Commission. All
“non-GAAP financial measures” (as such term is defined in the rules and regulations of the Commission), if any, contained in the Registration Statement, the General Disclosure Package and the Prospectus comply with Item 10 of Regulation
S-K of the Commission, to the extent
applicable.
(7)No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), (A) there has been no material adverse change or any development that could reasonably be expected to result in a material adverse change, in the condition (financial or other), results of
operations, business, properties, management or prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business (in any such case, a “Material Adverse Effect”); (B) except as otherwise disclosed in the General Disclosure Package and the
Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), neither the Company nor any of its subsidiaries has incurred any liability or
5
obligation or entered into any transaction or agreement that, individually or in the aggregate, is material with respect to the Company and its subsidiaries taken as a whole, and neither the Company
nor any of its subsidiaries has sustained any loss or interference with its business or operations from fire, explosion, flood, earthquake or other natural disaster or calamity, whether or not covered by insurance, or from any labor dispute or
disturbance or court or governmental action, order or decree which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and (C) except for regular quarterly cash dividends on the Common Stock in amounts per share that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(8)Valid Existence and Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation under the laws of the State of Oregon and has power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact
business in Washington and is so qualified and is in good standing and each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except (solely in the case
of jurisdictions other than the State of Oregon) where the failure so to qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse
Effect.
(9)Good Standing of Significant Subsidiaries. Each Significant Subsidiary of the Company has been duly organized and is validly existing as a corporation, limited or general partnership or limited liability company, as the case may be, in good
standing under the laws of the jurisdiction of its organization, has power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package or the
Prospectus and is duly qualified as a foreign corporation, limited or general partnership or limited liability company, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of each such subsidiary that is a corporation, all of the issued and outstanding
partnership interests of each such subsidiary that is a limited or general partnership and all of the issued and outstanding limited liability company interests, membership interests or other similar interests of each such subsidiary that is a
limited liability company have been duly authorized and validly issued, are fully paid and (except in the case of general partnership interests) non-assessable and are owned by the Company, directly or through subsidiaries, free and clear of any
Lien; and none of the issued and outstanding shares of capital stock of any such subsidiary that is a corporation, none of the issued and outstanding partnership interests of any such subsidiary that is a limited or general partnership, and none of
the issued and outstanding limited liability
6
company interests, membership interests or other similar interests of any such subsidiary that is a limited liability company was issued in violation of any preemptive rights, rights of first refusal
or other similar rights of any securityholder of such subsidiary or any other person. Exhibit 21 to the Company’s most recent Annual Report on Form 10-K filed with the Commission accurately sets forth the name of each subsidiary of the Company
and its jurisdiction of organization, other than subsidiaries omitted from such exhibit in accordance with the first sentence of clause (ii) of Section 21 of Item 601 of Regulation S-K of the Commission. The term “Significant Subsidiary”
means any subsidiaries of the Company which are “significant subsidiaries” as defined by Rule 1‑02 of Regulation S‑X. The Company has no Significant Subsidiaries other than the Significant Subsidiaries that are
listed on Exhibit B hereto under the caption “Significant Subsidiaries of the Company.”
(10)Capitalization. The
authorized, issued and outstanding capital stock of the Company as of the date of this Agreement is as set forth in the column entitled “Actual” and in the corresponding line items under the caption “Capitalization” in the
Pre-Pricing Prospectus and the Prospectus and, at the time of the purchase of the Initial Securities by the Underwriters on the Closing Date and as of each Option Closing Date (if any), the authorized, issued and outstanding capital stock of the
Company will be as set forth in the column entitled “As Adjusted” and in the corresponding line items under such caption (in each case except for any Option Securities issued by the Company pursuant to this Agreement and issuances, if
any, subsequent to November 7, 2016 pursuant to employee or director stock option, stock purchase or other equity incentive plans or any dividend reinvestment plan described in the Pre-Pricing Prospectus and the Prospectus, upon the exercise of
options issued pursuant to any such stock option, stock purchase or other equity incentive plans as so described, or upon the exercise of options described in the General Disclosure Package and the Prospectus). The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued and are fully paid and non‑assessable and were issued in compliance with all applicable foreign, state and federal securities and “blue-sky” laws; and none
of the outstanding shares of capital stock of the Company was issued in violation of any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other
person.
(11)Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(12)Authorization of Securities. The Securities to be sold by the Company under this Agreement have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and
non‑assessable; no holder of the Securities is or will be subject to personal liability by reason of being such a holder; and the issuance and sale of the Securities to be sold by the Company under this Agreement are not subject to any
preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other person.
7
(13)Description of
Securities. The Common Stock, the authorized but unissued preferred stock and the Company’s charter and bylaws conform in all material respects to the respective statements relating
thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such statements conform to the rights set forth in the respective instruments and agreements defining the
same.
(14)Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any Company Document, except for such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Pre-Pricing
Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default, Termination Event or Repayment Event under, or result in the creation or imposition of any Lien upon any property or assets of the Company or any of its subsidiaries pursuant to, any Company
Documents, except for such conflicts, breaches, defaults or Liens that would not, individually or in the aggregate, result in a Material Adverse Effect or materially and adversely affect the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations under this Agreement, nor will such action result in any violation of (i) the provisions of the Organizational Documents of the Company or any of its subsidiaries or (ii) except for such
violations that would not, individually or in the aggregate, result in a Material Adverse Effect or materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company of its
obligations under this Agreement, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their respective assets, properties or
operations.
(15)Absence of Labor Dispute. No general labor dispute with the employees of the Company or any subsidiary of the Company 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 the principal suppliers, manufacturers, customers or contractors of the Company or any of its subsidiaries which might reasonably be expected, individually or in the aggregate, to result in a
Material Adverse
Effect.
(16)Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries which is required to be disclosed in the Registration Statement, the Pre‑Pricing Prospectus or the Prospectus (other than as disclosed therein),
8
or (other than as disclosed therein) which might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations under this Agreement; the aggregate of all pending legal or governmental proceedings to which the Company or any of its subsidiaries
is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement, the Pre‑Pricing Prospectus and the Prospectus, including ordinary routine litigation incidental to the
business, would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(17)Accuracy of Descriptions and Exhibits. The information in the Pre‑Pricing Prospectus and the Prospectus under the
captions “Description of Common Stock,” and “Certain United States Federal Income Tax Considerations for Non-U.S. Holders” and the information in the Company’s Annual Report on Form 10-K for the fiscal year ended
2015 under the captions “Business-Regulation and Rates,” “Risk Factors-Risks Related to our Business Generally-Regulatory Risk,” “Legal Proceedings,” and “Management’s Discussion and Analysis of
Financial Condition and Results of Operations-Liquidity and Capital Resources,” in each case to the extent that it constitutes matters of law, summaries of legal matters, summaries of provisions of the Company’s charter or bylaws or any
other instruments or agreements, summaries of legal proceedings, or legal conclusions, is correct in all material respects; all descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of any other Company
Documents are accurate in all material respects; and there are no franchises, contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments, agreements
or documents required to be described or referred to in the Registration Statement, the Pre‑Pricing Prospectus or the Prospectus or the documents incorporated or deemed to be incorporated by reference therein or to be filed as exhibits to the
Registration Statement or the documents incorporated or deemed to be incorporated by reference therein which have not been so described and filed as
required.
(18)Possession of Intellectual Property. Except as described in the General Disclosure Package and the Prospectus or except as would not, individually or in the aggregate, result in a Material Adverse Effect, (A) the Company and its
subsidiaries own and possess or have valid and enforceable licenses to use, all patents, patent rights, patent applications, licenses, copyrights, inventions, know‑how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trade marks, service marks, trade names, service names, software, internet addresses, domain names and other intellectual property (collectively, “Intellectual Property”)
that is described in the Registration Statement, the General Disclosure Package or the Prospectus or that is necessary for the conduct of their respective businesses as currently conducted, as proposed to be conducted and as described in the
Registration Statement, the General Disclosure Package and the Prospectus, (B) neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to
9
protect the interests of the Company or any
of its subsidiaries therein; there are no third parties who have or, to the knowledge of the Company, will be able to establish rights to any Intellectual Property of the Company or any of its subsidiaries, except for, and to the extent of, the
ownership rights of the owners of the Intellectual Property which the Registration Statement, the General Disclosure Package and the Prospectus disclose is licensed to the Company or any of its subsidiaries, (C) there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the Company’s or any subsidiary’s rights in or to any such Intellectual Property, or challenging the validity, enforceability or scope of any
such Intellectual Property, or asserting that the Company or any subsidiary infringes or otherwise violates, or would, upon the commercialization of any product or service described in the Registration Statement, the General Disclosure Package or
the Prospectus, infringe or violate, any Intellectual Property of others, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim, (D) the Company and its subsidiaries have complied
with the terms of each agreement pursuant to which any Intellectual Property has been licensed to the Company or any subsidiary, all such agreements are in full force and effect, and no event or condition has occurred or exists that gives or, with
notice or passage of time or both, would give any person the right to terminate any such agreement and (E) there is no patent or patent application that contains claims that interfere with the issued or pending claims of any such Intellectual
Property of the Company or any of its subsidiaries or that challenges the validity, enforceability or scope of any such Intellectual Property.
(19)Absence of Further Requirements. (A) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or consent of any holder of capital stock or other securities of the Company or creditor of the
Company or any of its subsidiaries, (C) no authorization, approval, waiver or consent under any Company Document, and (D) no authorization, approval, vote or consent of any other person or entity, is necessary or required for the
authorization, execution, delivery or performance by the Company of this Agreement, for the offering of the Securities as contemplated by this Agreement, for the issuance, sale or delivery of the Securities to be sold by the Company pursuant to this
Agreement, or for the consummation of any of the other transactions contemplated by this Agreement, in each case on the terms contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, except such order or orders
of the Oregon Public Utility Commission (the “OPUC”) as shall have been obtained and which are in
full force and effect and the filings as shall have been made with the Washington Utilities and Transportation Commission (the “WUTC”) to establish compliance with applicable statutory provisions and such as have been obtained under the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and except that
no representation is made as to such as may be required under state or foreign securities
laws.
(20)Possession of Licenses and Permits. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or except as would not, individually or in the aggregate, result in a Material Adverse Effect, the
Company and its
10
subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them; and the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, all such Governmental Licenses are valid and in full
force and effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental
Licenses.
(21)Title to
Property. Except such as (a) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (b) are not, individually or in the aggregate, material to the
Company and its subsidiaries taken as a whole and are not required to be disclosed in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus, (A) the Company and its subsidiaries have good and marketable title in fee simple to all
real property owned by any of them (if any) and good title to all other properties and assets owned by any of them, in each case, free and clear of all Liens, (B) all real property, buildings and other improvements, and all equipment and other
property held under lease or sublease by the Company or any of its subsidiaries is held by them under valid, subsisting and enforceable leases or subleases, as the case may be, with, solely in the case of leases or subleases relating to real
property, buildings or other improvements, and all such leases and subleases are in full force and effect, and (C) neither the Company nor any of its subsidiaries has received any notice of any claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any of its subsidiaries under any of the leases or subleases mentioned above or affecting or questioning the rights of the Company or any of its subsidiaries to the continued possession of the leased or
subleased premises or to the continued use of the leased or subleased equipment or other property except for such claims which would not, individually or in the aggregate, result in a Material Adverse Effect.
(22)Investment Company Act. The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the receipt and application of the net proceeds therefrom as described in the General Disclosure Package
and the Prospectus under the caption “Use of Proceeds,” will not be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the 1940
Act.
(23)Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or except as would not, individually or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
11
of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, Liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(24)Absence of Registration Rights. There are no persons with registration rights or other similar rights to have any
securities (debt or equity) (A) registered pursuant to the Registration Statement or included in the offering contemplated by this Agreement or (B) otherwise registered by the Company under the 1933 Act, and there are no persons with co-sale
rights, tag-along rights or other similar rights to have any securities (debt or equity) included in the offering contemplated by this Agreement or sold in connection with the sale of Securities, except in each case for such rights that have been
duly waived in writing; and the Company has given all notices required by, and has otherwise complied with its obligations under, all registration rights agreements, co-sale agreements, tag-along agreements and other similar agreements in connection
with the transactions contemplated by this
Agreement.
(25)Parties to Lock-Up Agreements. Each of the persons listed on Exhibit C hereto has executed and delivered to the Representatives a lock-up agreement in the form of Exhibit D hereto. Exhibit C hereto contains a true,
complete and correct list of all directors and executive officers of the
Company.
(26)NYSE. The
outstanding shares of Common Stock are listed on the NYSE and the Securities being sold hereunder by the Company have been approved for listing, subject only to official notice of issuance, on the
NYSE.
(27)FINRA Matters.
The Company was, at the time the Registration Statement was first filed with the Commission, and at all times thereafter has been, eligible to use Form S‑3 pursuant to the standards for that form in effect immediately prior to
October 21, 1992. There is and, at all times since the time that the Registration Statement was first filed with the Commission, there has been a “bona fide public market,” as defined in FINRA Rule 5121, for the Common
Stock.
(28)Tax Returns. The
Company and its subsidiaries have filed all foreign, federal, state and local tax returns that are required to be filed as of the Applicable Time, Closing or Option Closing Date, as applicable, or have obtained extensions thereof, except where the
failure so to file would not, individually or in the aggregate, result in a Material Adverse Effect, and have paid all taxes (including, without limitation, any estimated taxes) required to be paid and any other assessment, fine or penalty, to the
extent that any of the foregoing
12
is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith by appropriate actions and except for such taxes, assessments, fines or
penalties the nonpayment of which would not, individually or in the aggregate, result in a Material Adverse Effect.
(29)Insurance. The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or except as would not, individually
or in the aggregate, result in a Material Adverse Effect, (A) all policies of insurance and any fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects, (B) there are no claims by the Company or any of its subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending under a reservation of rights clause and (C) neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers at a cost that would not, individually or in the
aggregate, result in a Material Adverse
Effect.
(30)Accounting and Disclosure Controls. The Company and its subsidiaries maintain and have established and maintained effective “internal control over financial reporting” (as defined in Rule 13a-15 of the 1934 Act Regulations).
The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, there has not been (1) at any time during the Company’s five consecutive fiscal years ended with and including the Company’s most recent fiscal year for which audited
financial statements are included in the Registration Statement, the General Disclosure Package and the Prospectus or at any time subsequent thereto, any material weakness (as defined in Rule 1-02 of Regulation S-X of the Commission) in the
Company’s internal control over financial reporting (whether or not remediated), or (2) any fraud, whether or not material, involving management or other employees who have a role in the Company’s internal control over financial
reporting and, since the end of the Company’s most recent fiscal year for which audited financial statements are included in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no change in the
Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
13
reporting. The Company and its subsidiaries have established, maintained and periodically evaluate the effectiveness of “disclosure controls and procedures” (as defined in Rules 13a-15
and 15d-15 under the 1934 Act); such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act and the interactive data in eXtensible
Business Reporting Language included as an exhibit to the Registration Statement or incorporated by reference in the Registration Statement are recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
The Company’s independent public accountants and the audit committee of the
Company’s board of directors have been advised of all material weaknesses, if any, and significant deficiencies (as defined in Rule 1-02 of Regulation S-X of the Commission), if any, in the Company’s internal control over financial
reporting and of all fraud, if any, whether or not material, involving management or other employees who have a role in the Company’s internal control over financial reporting, in each case that occurred or existed, or was first detected, at
any time during the Company’s five consecutive fiscal years ended with and including the Company’s most recent fiscal year for which audited financial statements are included in the Registration Statement, the General Disclosure Package
and the Prospectus or at any time subsequent
thereto.
(31)Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with which any of them is required to comply, including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(32)Pending Proceedings and Examinations; Comment Letters. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under
Section 8A of the 1933 Act. The Company has provided the Representatives with true, complete and correct copies of any written comments received from the Commission by the Company or its legal counsel or accountants, and of any transcripts made
by the Company, its legal counsel or accountants of any oral comments received from the Commission, with respect to the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus or any document
incorporated or deemed to be incorporated by reference therein and of all written responses thereto (in each case other than comment letters or written responses that are publicly available on ▇▇▇▇▇), and no such comments remain
unresolved.
(33)Absence of Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably
14
be expected to cause or result in the stabilization or manipulation of the price of any security to facilitate the sale or resale of the
Securities.
(34)Statistical and Market-Related Data. Any statistical, demographic, market-related and similar data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate and accurately reflect the materials upon which such data is based or from which it was derived, and the Company has delivered true, complete and correct copies of such materials to the Representatives to
the extent requested by the
Representatives.
(35)No Unlawful
Payments. Neither the Company nor any of its subsidiaries nor any director, officer, or employee of the Company or any of its subsidiaries nor, to the knowledge of the Company, any agent,
affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that has resulted or would result in (i) the use of any funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) the making or taking of an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign
or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or
any political party or party official or candidate for political office; (iii) a violation by any such person of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) the
making, offering, requesting or taking of, or the agreement to take, an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper
payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and
anti-corruption
laws.
(36)Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to
the Anti-Money Laundering Laws is pending or, to the knowledge of the Company or any of its subsidiaries is, threatened.
15
(37)No Conflicts with Sanctions Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees, nor, to the knowledge of the Company, any agent, employee or affiliate or other person associated with or acting on
behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, OFAC or the U.S. Department of State and including, without
limitation, the designation as a “specially designated national” or “blocked person”), the UNSC, the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company, any of its subsidiaries located, organized or resident in a country or territory
that is the subject or the target of Sanctions, including, without limitation, Cuba, Burma (Myanmar), Iran, North Korea, Sudan and Syria (each, a “Sanctioned
Country”); and the Company will not directly or indirectly use any of the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of any Sanctions, (ii) to fund or facilitate any
activities of or any business in any Sanctioned Country or (iii) in any other manner that could result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of
any Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any person that at the time of the dealing or
transaction is or was the subject or the target of any Sanctions or with any Sanctioned
Country.
(38)ERISA Compliance. None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum
funding standards of Section 302 of ERISA with respect to a Plan (as defined below) determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue
Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal, state or foreign governmental or regulatory agency with respect to the employment or compensation of employees by the Company or any of its
subsidiaries that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with
respect to the employment or compensation of employees by the Company or any of its subsidiaries that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. None of the following events has occurred
or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made
in the Company’s most recently completed fiscal year that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; (ii) a material increase in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared to the amount of such obligations in the Company’s most recently completed fiscal year that might
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; (iii) any event or
16
condition giving rise to a liability under
Title IV of ERISA that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or any of its
subsidiaries related to its or their employment that might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. For purposes of this paragraph and the definition of ERISA, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) with respect to which the Company or any of
its subsidiaries may have any
liability.
(39)Lending and Other Relationships. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (i) neither the Company
nor any of its subsidiaries has any lending or similar relationship with any Underwriter or any bank or other lending institution affiliated with any Underwriter; (ii) the Company will not, directly or indirectly, use any of the proceeds from the
sale of the Securities by the Company hereunder to reduce or retire the balance of any loan or credit facility extended by any Underwriter or any of its “affiliates” or “associated persons” (as such terms are used in FINRA
Rule 5121) or otherwise direct any such proceeds to any Underwriter or any of its “affiliates” or “associated persons” (as so defined); and (iii) there are and have been no transactions, arrangements or dealings between the
Company or any of its subsidiaries, on the one hand, and any Underwriter or any of its “affiliates” or “associated persons” (as so defined), on the other hand, that, under FINRA Rule 5110 or 5121, must be disclosed in a
submission to FINRA in connection with the offering of the Securities contemplated hereby or disclosed in the Registration Statement, the General Disclosure Package or
Prospectus.
(40)Transfer
Taxes. There are no stock or other transfer taxes, stamp duties, capital duties or other similar duties, taxes or charges payable in connection with the execution or delivery of this
Agreement by the Company or the issuance or sale by the Company of the Securities to be sold by the Company to the Underwriters hereunder.
(41)Related Party Transactions. There are no business relationships or related party transactions involving the Company or any
of its subsidiaries or, to the knowledge of the Company, any other person that are required to be described in the Pre-Pricing Prospectus or the Prospectus that have not been described as
required.
(42)Offering
Materials. Without limitation to the provisions of Section 16 hereof, the Company has not distributed and will not distribute, directly or indirectly (other than through the
Underwriters), any “written communication” (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) or other offering materials in connection with the offering or sale of the Securities, other than the Pre-Pricing Prospectus, the Prospectus, any
amendment or supplement to any of the foregoing that are filed with the SEC and any Permitted Free Writing Prospectuses (as defined in Section 16).
(43)No Restrictions on Dividends. The Company is not a party to or otherwise bound by any instrument or agreement that limits
or prohibits or could limit or prohibit, directly or indirectly, the Company from paying any dividends or making other distributions
17
on its capital stock, except as described
in the Registration Statement, the General Disclosure Package and the
Prospectus.
(44)Brokers. There is
not a broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any of the transactions contemplated by this Agreement, except for underwriting discounts
and commissions in connection with the sale of the Securities to the Underwriters pursuant to this Agreement.
(45)Interactive Data. The interactive data in eXtensible Business Reporting Language included as an exhibit to the
Registration Statement or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable
thereto.
(b)Certificates. Any certificate signed by any officer of the Company (whether signed on behalf of such officer or the Company) and
delivered to the Representatives or to counsel for the Underwriters pursuant to or relating to this Agreement shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters;
Closing.
(a)Initial Securities. 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 the Underwriters, severally and not jointly, the Initial Securities, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite its name in
Exhibit A hereto plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives
in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a price of $52.58 per share (the “Purchase
Price”).
(b)Option Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to the number of Option Securities which bears the same proportion to the total number of Option Securities to be purchased on such
Option Closing Date (as defined below) as the number of Initial Securities set forth in Exhibit A hereto opposite the name of such Underwriter bears to the total number of Initial Securities at a price per share equal to the Purchase Price referred
to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared, paid or payable by the Company on the Initial Securities but not
payable on such Option Securities. The option hereby granted will expire at 11:59 P.M. (New York City time) on the 30th day after the date hereof and may be exercised in whole or in part from time to time only for the purpose of covering
over‑allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the
18
Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (an “Option Closing Date”) shall be determined by the
Representatives, but shall not be earlier than two, nor later than seven, full business days after the exercise of said option (unless postponed in accordance with the provisions of Section 10), nor in any event prior to the Closing Date.
(c)Payment.
Payment of the purchase price for, and delivery of, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on November 16, 2016 (unless postponed in accordance with the provisions of Section 10), or such other time not later
than five business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Date”).
In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of, such Option Securities shall be made at the above‑mentioned offices at 9:00 A.M. (New York City time), or at such other
place as shall be agreed upon by the Representatives and the Company, on each Option Closing Date as specified in the notice from the Representatives to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a single bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of the Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. ▇▇▇▇▇ Fargo, individually and
not as Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by
the Closing Date or the relevant Option Closing Date, as the case may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d)Delivery of Securities. Delivery of
the Initial Securities and any Option Securities shall be made through the facilities of DTC unless the Representatives shall otherwise instruct.
SECTION 3.
Covenants of the Company. The Company covenants with each Underwriter as
follows:
(a)Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B and Rule 433 and will
notify the Representatives immediately, and confirm the notice in writing, (i) when the Registration Statement or any post-effective amendment to the Registration Statement shall be declared or become effective, or when any preliminary
prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing shall have been filed, (ii) of the receipt of any comments from the Commission (and shall promptly furnish the
Representatives with a copy of any comment
19
letters and any transcript of oral comments, and shall furnish the Representatives with copies of any written responses thereto a reasonable amount of time prior to the proposed filing thereof with
the Commission and will not file any such response to which the Representatives or counsel for the Underwriters shall object), (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement
to any preliminary prospectus or the Prospectus, any document incorporated or deemed to be incorporated by reference therein or any Issuer Free Writing Prospectus or for additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any of the
foregoing, or any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction
or of the loss or suspension of any exemption from any such qualification, or of the initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will make every reasonable effort to prevent the issuance of
any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, and if any such stop order is issued, or any such suspension or loss
occurs, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1993 Act Regulations, except to the extent such filing fees have been paid prior to the date
hereof.
(b)Filing of Amendments. The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration
Statement, any Issuer Free Writing Prospectus or any amendment, supplement or revision to any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus, whether pursuant to the 1933 Act or otherwise, and the Company will furnish
the Representatives with copies of any such documents within a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the
Underwriters shall object. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations within 48 hours prior to the Applicable Time. The Company will give the Representatives notice of
its intention to make any filing pursuant to the 1934 Act or the 1934 Act Regulations from the Applicable Time through the Closing Time (or, if later, through the end of the period during which the Prospectus is required (or, but for the provisions
of Rule 172, would be required) to be delivered by applicable law (whether to meet the requests of purchasers pursuant to Rule 173(d) or otherwise)) and will furnish the Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall
object.
20
(c)Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, copies
of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part
thereof) and copies of all consents and certificates of
experts.
(d)Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus and any
amendments or supplements thereto as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of
the Pre‑Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus and any amendments or supplements to any of the foregoing as such Underwriter may reasonably
request.
(e)Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated by this Agreement, the General Disclosure Package and the Prospectus. If at any time when a prospectus is required (or, but for the provisions of Rule 172, would be
required) by the applicable law to be delivered in connection with sales of the Securities (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), any event shall occur or condition shall exist as a result of which it
is necessary (or if the Representatives or counsel for the Underwriters shall notify the Company that, in their judgment, it is necessary) to amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus so
that the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made or then prevailing, not misleading or if it is necessary (or, if the Representatives or counsel for the Underwriters shall notify the Company that, in their judgment, it is necessary) to
amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus in order to comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company will
promptly notify the Representatives of such event or condition and of its intention to file such amendment or supplement (or, if the Representatives or counsel for the Underwriters shall have notified the Company as aforesaid, the Company will
promptly notify the Representatives of its intention to prepare such amendment or supplement) and will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct
such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Company will use its best efforts to have such amendment declared or become
effective as soon as practicable, and
21
the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. If at any time an Issuer Free Writing Prospectus
conflicts with the information contained in the Registration Statement or if an event shall occur or condition shall exist as a result of which it is necessary (or, if the Representatives or counsel for the Underwriters shall notify the Company
that, in their judgment, it is necessary) to amend or supplement such Issuer Free Writing Prospectus so that it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made or then prevailing, not misleading, or if it is necessary (or, if the Representatives or counsel for the Underwriters shall notify the Company that, in their judgment, it is
necessary) to amend or supplement such Issuer Free Writing Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly notify the Representatives of such event or condition and of its
intention to file such amendment or supplement (or, if the Representatives or counsel for the Underwriters shall have notified the Company as aforesaid, the Company will promptly notify the Representatives of its intention to prepare such amendment
or supplement) and will promptly prepare and, if required by the 1933 Act or the 1933 Act Regulations, file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to eliminate or correct such
conflict, untrue statement or omission or to comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f)Blue Sky and Other Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and
sale, or to obtain an exemption for the Securities to be offered and sold, under the applicable securities laws of such states and other jurisdictions as the Representatives may reasonably designate and to maintain such qualifications and exemptions
in effect for so long as required for the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so
qualified or exempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the
Securities.
(g)Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h)Use of Proceeds.
The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Pre‑Pricing Prospectus and the Prospectus under “Use of
Proceeds.”
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(i)
Listing. The Company will use its
best efforts to effect the listing of the Securities on the NYSE as and when required by this
Agreement.
(j)Restriction on Sale of Securities. During the Lock-Up Period, the Company will not, without the prior written consent of ▇▇▇▇▇ Fargo, directly or
indirectly:
(i)issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any shares of Common Stock or other capital stock or any securities convertible into or exercisable or exchangeable for Common Stock
or other capital stock,
(ii)file or cause the filing of any registration statement under the 1933 Act with respect to any Common Stock
or other capital stock or any securities convertible into or exercisable or exchangeable for any Common Stock or other capital stock, or
(iii) enter into any swap or other agreement, arrangement, hedge or transaction that transfers to another, in whole or in part, directly or indirectly, any of the economic consequences of ownership of any
Common Stock or other capital stock or any securities convertible into or exercisable or exchangeable for any Common Stock or other capital stock,
whether any transaction described in clause (i)
or (iii) above is to be settled by delivery of Common Stock, other capital stock, other securities, in cash or otherwise, or publicly announce any intention to do any of the foregoing.
Notwithstanding the provisions set forth in the immediately
preceding paragraph, the Company may, without the prior written consent of ▇▇▇▇▇ Fargo:
(1) issue Securities to the Underwriters pursuant to this Agreement
and
(2) issue shares, and options to
purchase shares, of Common Stock and restricted stock units pursuant to employee benefit plans or other employee, executive or director compensation plans or any dividend reinvestment and direct stock purchase plan, in each case as described in the
General Disclosure Package and the Prospectus, as those plans are in effect on the date of this Agreement.
(k)Reporting Requirements. The Company, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be
required) by applicable law to be delivered (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), will file all documents required to be filed with the Commission pursuant to the 1934 Act and the 1934 Act Regulations
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
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(l)Preparation of Prospectus. Immediately following the execution of this Agreement, the Company will, subject to Section 3(b) hereof, prepare the
Prospectus, which shall contain the selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Representatives and the Company may deem
appropriate, and if requested by the Representatives, will prepare an Issuer Free Writing Prospectus containing the information set forth in Exhibit H hereto and such other information as may be required by Rule 433 or as the Representatives and the
Company may deem appropriate, and will file or transmit for filing with the Commission the Prospectus in accordance with the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) (without reliance on
Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433.
(m)New Registration Statement. If,
immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”), any of the Securities remains unsold by the Underwriters, the Company will, prior to the Renewal Deadline,
if it has not already done so and is eligible to do so, file a new automatic shelf registration statement relating to the Securities, and notify the Representatives when such filing has been made. If the Company is no longer eligible to file an
automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new registration statement relating to the Securities, and notify the Representatives when such filing has been made and
use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will furnish the Representatives with copies of any such new registration statement a reasonable amount of
time prior to such proposed filing and, notwithstanding the foregoing provisions of this paragraph, will not file any such proposed registration statement to which the Representatives or counsel for the Underwriters shall object. In any such case,
the Company will take all other action as is necessary or appropriate to permit the public offering and sale of the Securities to continue from and after the Renewal Deadline as contemplated in the expired registration statement relating to the
Securities. References in this Agreement to the “Registration Statement” shall include any such new registration statement from and after the time it is filed with the Commission, mutatis mutandis.
SECTION 4. Payment of Expenses.
(a)Expenses. The Company will pay all out-of-pocket expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement and each amendment thereto (in each case including exhibits) and any costs associated with electronic delivery of any of the foregoing, (ii) the word
processing and delivery to the Underwriters of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Securities and the issuance and delivery of the Securities to be sold by the Company to the Underwriters, including any stock or other transfer taxes and any stamp or other taxes or duties payable in connection with the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the counsel, accountants
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and other advisors to the Company,
(v) the qualification or exemption of the Securities under securities laws in accordance with the provisions
of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplements thereto, (vi) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, any
Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing and any costs associated with electronic delivery of any of the foregoing, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any Canadian “wrapper” and any supplements thereto and any costs associated with electronic delivery of any of the foregoing, (viii) the fees and expenses of the transfer agent and
registrar for the Securities, (ix) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters, such fees and disbursements together with the fees and disburements described in clause (v) above, not to
exceed $15,000, in connection with, the review, if any, by FINRA of the terms of the sale of the Securities, (x) the fees and expenses incurred in connection with the listing of the Securities on the NYSE, (xi) the costs and expenses of
the Company and any of its officers, directors, counsel or other representatives in connection with presentations or meetings undertaken in connection with the offering of the Securities, including, without limitation, expenses associated with the
production of road show slides and graphics and the production and hosting of any electronic road shows, fees and expenses of any consultants engaged in connection with road show presentations, and travel, lodging, transportation, and other expenses
of the officers, directors, counsel and other representatives of the Company incurred in connection with any such presentations or meetings, and (xii) the reasonable fees and disbursements of counsel for the Underwriters in connection with the copying and delivery of closing documents and other documents relating to the offering
contemplated hereby (and in connection with the preparation and delivery of any electronic versions or compilations of such documents) to the Company, the Company’s accountants and counsel and the Underwriters. It is understood, however, that
except as provided in this Section 4, the Underwriters will pay all of their own costs and expenses, including the fees of Underwriters’ Counsel.
(b)Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of
Sections 5, 9(a)(i), 9(a)(iii)(A) or 9(a)(v) hereof, the Company shall reimburse the Underwriters for all of their out‑of‑pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained in this Agreement, or in certificates signed by any
officer of the Company or any subsidiary of the Company (whether signed on behalf of such officer, the Company or such subsidiary) delivered to the Representatives or counsel for the Underwriters, to the performance by the Company of its covenants
and other obligations hereunder, and to the following further conditions:
(a)Effectiveness of Registration Statement. The Registration Statement and any post-effective amendments thereto shall have become effective and no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Company, threatened
25
by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives and the Commission shall
not have notified the Company of any objection to the use of the form of the Registration Statement. The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) (without reliance
upon Rule 424(b)(8)) and each Issuer Free Writing Prospectus required to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 433, and, prior to the Closing Date, the Company shall have
provided evidence reasonably satisfactory to the Representatives of such timely
filings.
(b)Opinion of Counsel for Company. At the Closing Date, the Representatives shall have received the favorable opinions and 10b-5 statements, as applicable,
dated as of the Closing Date, of (i) MardiLyn ▇▇▇▇▇▇▇▇, Esquire, Senior Vice President, Regulation and General Counsel of NW Natural, together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect set
forth in Exhibit E hereto, (ii) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Company (“Company Counsel”), together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect set forth in Exhibit F hereto and (iii) Stoel Rives LLP, Washington counsel to the
Company, together with signed or reproduced copies of such opinion for each of the other Underwriters, to the effect set forth in Exhibit G hereto.
(c)Opinion of Counsel for Underwriters. At
the Closing Date, the Representatives shall have received the favorable opinion and 10b-5 statement, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters (“Underwriters’ Counsel”), together with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the Securities to be sold by the Company pursuant to this Agreement, this Agreement, the Registration Statement, the General Disclosure Package and the Prospectus and any amendments or supplements thereto and such other
matters as the Representatives may reasonably
request.
(d)Officers’ Certificate. At the Closing Date or the applicable Option Closing Date, as the case may be, there shall not have been, since the
date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), any material adverse change or any development that could reasonably be expected to result in a
material adverse change in the condition (financial or other), results of operations, business, properties, management or prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, and,
at the Closing Date, the Representatives shall have received a certificate, signed on behalf of the Company by the President or the Chief Executive Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company,
dated as of the Closing Date, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement are true and correct at and as of the Closing Date with the same
force and effect as though expressly made at and as of the Closing Date, (iii) the Company has complied
26
with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing Date under or pursuant to this Agreement, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission and the Commission has not notified the Company of any objection to the use of the form of the Registration
Statement.
(e)Accountant’s Comfort Letter. At the time of the execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP
a letter, dated the date of this Agreement and in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information
of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained in the Registration Statement, the General
Disclosure Package, any Issuer Free Writing Prospectuses (other than any electronic road show) and the Prospectus and any amendments or supplements to any of the
foregoing.
(f)Bring-down Comfort Letter. At the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, dated as of Closing
Date and in form and substance reasonably satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing
Date.
(g)Approval of Listing. At the Closing Date and each Option Closing Date, if any, the Securities to be purchased by the Underwriters from the
Company at such time shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(h)Lock-up Agreements. Prior to the date of this
Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit D hereto signed by each of the persons listed in Exhibit C
hereto.
(i)Conditions to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any
portion of the Option Securities on any Option Closing Date that is after the Closing Date, the obligations of the several Underwriters to purchase the applicable Option Securities shall be subject to the conditions specified in the introductory
paragraph of this Section 5 and to the further condition that, at the applicable Option Closing Date, the Representatives shall have received:
(1)Opinion of Counsel for Company. The favorable opinion and 10b-5 statement, as applicable, of Company Counsel and of each
other counsel named in Section 5(b), to the extent set forth in Exhibit E, Exhibit F or Exhibit G, as applicable, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the respective
opinions required by Section 5(b)
hereof.
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(2)
Opinion of Counsel for Underwriters. The favorable opinion and 10b-5 statement of Underwriters’ Counsel, in
form and substance satisfactory to the Representatives and dated such Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(3)Officers’ Certificate. A certificate, dated such Option Closing Date, to the effect set forth in, and signed on behalf of the Company by the officers specified in, Section 5(d) hereof, except that the references in such
certificate to the Closing Date shall be changed to refer to such Option Closing
Date.
(4)Bring-down Comfort Letter. A letter from PricewaterhouseCoopers LLP, in form and substance reasonably satisfactory to the Representatives and dated such Option Closing Date, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(f) hereof, except that the specified date in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Option Closing Date, and
except that such letter shall also cover any amendments or supplements to the Registration Statement, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus subsequent to the Closing
Date.
(j)Additional Documents. At the Closing Date and each Option Closing Date, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, contained in this Agreement, or as the Representatives or counsel for the Underwriters may otherwise reasonably request; and all proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated and in connection with the other transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the
Representatives.
(k)Termination of Agreement. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities on an Option Closing Date which is after the Closing Date, the obligations of the several Underwriters to purchase the relevant Option Securities on such Option Closing
Date, may be terminated by the Representatives by notice to the Company at any time on or prior to Closing Date or such Option Closing Date, as the case may be, and such termination shall be without liability of any party to any other party except
as provided in Section 4 hereof and except that, in the case of any such termination of this Agreement, Sections 1, 6, 7, 8, 11, 12, 13, 14, 15, 17, 18 and 19 hereof shall survive such termination of this Agreement and remain in full force
and
effect.
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SECTION 6.
Indemnification.
(a)Indemnification by the Company.
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, and its and their officers,
directors, employees, partners and members and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense 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), 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 included in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package
or the Prospectus (or any amendment or supplement to any of the foregoing), or any “issuer information” (as defined in Rule 433), or any “road show” (as defined in Rule 433) that does not constitute an Issuer Free
Writing Prospectus, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense 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 Section 6(d) below) any such settlement is effected with the written consent of
the Company;
and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of
counsel), reasonably incurred in investigating, preparing for 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
statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or
(ii)
above,
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto), or in any preliminary prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or in any amendment or supplement to any of the foregoing), it being understood and agreed that the only such information furnished by the Underwriters as aforesaid
consists of the information described as such in Section 6(b) hereof.
(b)Indemnification by the Underwriters. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
29
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or in any preliminary prospectus, any Issuer Free
Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement to any of the foregoing), in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein. The Company hereby acknowledges and agrees that the information furnished to the Company by the Underwriters through the Representatives expressly for use in the Registration Statement (or any amendment
thereto), or in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement to any of the foregoing), consists exclusively of the following information appearing
under the caption “Underwriting” in the Pre-Pricing Prospectus and the Prospectus: (i) the information regarding the concession and reallowance appearing under the caption “Underwriting-Discounts and Commissions” and
(ii) the information regarding stabilization, syndicate covering transactions and penalty bids appearing under the caption “Underwriting-Stabilization” (but only insofar as such information concerns the
Underwriters).
(c)Actions Against Parties; Notification. 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 be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder or otherwise. Counsel to the indemnified parties shall
be selected as follows: counsel to the Underwriters and the other indemnified parties referred to in Section 6(a) above shall be selected by the Representatives, and counsel to the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Company. An indemnifying party may 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 party be
liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for the Underwriters and the other indemnified parties referred to in Section 6(a) above and the fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own counsel for the Company, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, in each case 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 6 or Section 7 hereof (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
30
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.
(d)Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by this Section 6, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7.
Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims,
damages 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 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, 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 of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages 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 discounts and commissions 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 on the
one hand or by the Underwriters on the other hand 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 7 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 which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified
31
party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing for 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 7, 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 which 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each affiliate of any
Underwriter, each officer, director, employee, partner and member of any Underwriter or any such affiliate, and
each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are
several in proportion to the number of Initial Securities set forth opposite their respective names in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates signed by any officer of the Company or any of its subsidiaries (whether signed on behalf of such officer,
the Company or such subsidiary) and delivered to the Representatives or counsel to the Underwriters, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, any officer, director,
employee, partner, member or agent of any Underwriter or any person controlling any Underwriter, or by or on behalf of the Company, any officer, director or employee of the Company or any person controlling the Company, and shall survive delivery of
and payment for the
Securities.
SECTION 9. Termination of Agreement.
(a)Termination; General. The Representatives may terminate this Agreement, by notice to the Company, at any time on or prior to Closing Date (and,
if any Option Securities are to be purchased on an Option Closing Date which occurs after the Closing Date, the Representatives may terminate the obligations of the several Underwriters to purchase such Option Securities, by notice to the Company at
any time on or prior to such Option Closing Date) (i) if there has been, at any time on or after the date of this Agreement or since the respective dates as of which information is given in the General Disclosure Package or the Prospectus (in
each case exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), any material adverse
32
change or any development that could
reasonably expected to result in a material adverse change, in the condition (financial or other), results of operations, business, properties, management or prospects of the Company and its subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any declaration of a national emergency or war by the United
States, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions (including, without
limitation, as a result of terrorist activities), in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if (A) trading in any securities of the Company has been suspended or materially limited by the Commission or the NYSE, or (B) trading generally on the NYSE, the Nasdaq Global Select Market, the Nasdaq Global
Market, the NYSE Amex, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (C) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United
States or in Europe, or (iv) if a banking moratorium has been declared by either Federal or New York authorities or (v) if there shall have occurred, at any time on or after the date of this Agreement, any downgrading in the rating of any
debt securities of or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) or any public announcement that any such organization has placed its rating
on the Company or any such debt securities under surveillance or review or on a so-called “watch list” (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement by any such organization that the Company or any such debt securities or other securities has been placed on negative
outlook.
(b)Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof and except that Sections 1, 6, 7, 8, 11, 12, 13, 14, 15, 17, 18 and 19 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. (a) If one or more of the Underwriters shall fail at the Closing Date or an Option Closing Date to purchase the Securities which it or they are obligated to purchase under this Agreement (the
“Defaulted Securities”), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non‑defaulting Underwriters, or any other underwriters reasonably satisfactory to the Company, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24‑hour period, then:
(1)if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non‑defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount of such Defaulted Securities
33
in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non‑defaulting Underwriters;
or
(2)if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such
date, this Agreement or, with respect to any Option Closing Date which occurs after the Closing Date, the obligation of the Underwriters to purchase and of the Company to sell the Option Securities that were to have been purchased and sold on such
Option Closing Date, shall terminate without liability on the part of any non‑defaulting
Underwriter.
No action taken pursuant to this Section 10(a) shall relieve any defaulting Underwriter from liability in respect of its
default.
In the event of any such default which does not result in a termination of this Agreement or, in the case of an Option Closing Date which is after the Closing Date, which does not result in a
termination of the obligations of the Underwriters to purchase and the Company to sell the relevant Option Securities, as the case may be, the Representatives shall have the right to postpone the Closing Date or the relevant Option Closing Date, as
the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All
notices and other communications hereunder shall be in writing, shall be effective only upon receipt and shall be mailed, delivered by hand or overnight courier, or transmitted by fax (with the receipt of such fax to be confirmed by telephone).
Notices to the Underwriters shall be directed to the Representatives at ▇▇▇▇▇ Fargo Securities, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention of Equity Syndicate, fax no. ▇▇▇-▇▇▇-▇▇▇▇ (with such fax to be confirmed by telephone to
▇▇▇-▇▇▇-▇▇▇▇), ▇.▇. ▇▇▇▇▇▇ Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention Equity Syndicate Desk, fax no. ▇▇▇-▇▇▇-▇▇▇▇ and RBC Capital Markets, LLC, Three World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention Equity Syndicate, fax no. ▇▇▇-▇▇▇-▇▇▇▇; notices to the Company shall be directed to it at Northwest Natural Gas Company, ▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Brody ▇. ▇▇▇▇▇▇, fax no. ▇▇▇-▇▇▇-▇▇▇▇ (with such fax to
be confirmed by telephone to
▇▇▇-▇▇▇-▇▇▇▇).
SECTION 12. Parties. This
Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and their respective successors and the controlling persons and other indemnified parties referred to in Sections 6 and 7 and their successors, heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company
and their respective successors, and said controlling persons and other indemnified parties and their successors, heirs and legal representatives, and for the benefit of no other person or entity. No
34
purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13.
GOVERNING LAW AND TIME. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE RELATING TO OR ARISING UNDER
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
SECTION 15.
Definitions. As used in this Agreement, the following terms have the respective meanings set forth
below:
“Applicable Time” means 6:00 p.m. (New York
City time) on November 10, 2016 or such other time as agreed by the Company and the Representatives.
“Commission” means the Securities and Exchange
Commission.
“Company Documents” means (i) all Subject Instruments and (ii) all other contracts, indentures, mortgages,
deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, swap agreements, hedging agreements, leases or other instruments or agreements to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject.
“DTC” means The Depository Trust
Company.
“▇▇▇▇▇” means the Commission’s Electronic Data Gathering, Analysis and Retrieval
System.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder.
“Existing Credit Agreement” means the Credit Agreement dated as of December 20, 2012 among the Company, JPMorgan
Chase Bank, N.A., as agent, and the other parties thereto, as amended, supplemented or restated, if applicable, and including any promissory notes, pledge agreements, security agreements, mortgages, guarantees and other instruments or agreements
entered into by the Company or any of its subsidiaries in connection therewith or pursuant thereto, in each case as amended, supplemented or restated, if
applicable.
“Existing Indenture” means the Mortgage and Deed of Trust dated as of July 1, 1946 between the Company and Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), as trustee, as amended or
supplemented.
35
“FINRA” means the Financial Industry Regulatory
Authority Inc. or the National Association of Securities Dealers, Inc., or both, as the context shall require.
“GAAP” means generally accepted accounting
principles.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433,
relating to the offering of the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, and any
free writing prospectus that is listed in Exhibit I hereto in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule
433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being specified in Exhibit I hereto.
“Issuer Limited Use Free Writing Prospectus” means
any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Lien” means any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
“Lock-Up Period” means the period beginning on and including the date of this Agreement through and including the
date that is the 60th day after the date of this Agreement, as the same may be extended as provided herein.
“NYSE” means the New York Stock
Exchange.
“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury
Department.
“Organizational Documents” means (a) in the case of a corporation, its charter and by‑laws; (b) in
the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) in the case of a limited liability company, its articles of organization,
certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust, certificate of
formation or similar organizational document and its trust agreement or other similar agreement; and (e) in the case of any other entity, the organizational and governing documents of such
entity.
“Pre-Pricing Prospectus” means the preliminary prospectus dated November 10, 2016 relating to the Securities in the
form first furnished to the Underwriters for use in connection with the offering of the Securities, including the documents incorporated by reference therein under the 1933
Act.
“PCAOB” means the Public Company Accounting Oversight Board (United
States).
36
“preliminary prospectus” means any prospectus
used in connection with the offering of the Securities that omitted the public offering price of the Securities or that was captioned “Subject to Completion,” together with the documents incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇. The term “preliminary prospectus” includes, without limitation, the Pre-Pricing
Prospectus.
“Registration Statement” means the Company’s registration statement on Form S-3 (Registration
No. 333-214496) as amended (if applicable), including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act and the Rule 430B Information; provided that any
Rule 430B Information shall be deemed part of the Registration Statement only from and after the time specified pursuant to
Rule 430B.
“Regulation S-T” means Regulation S-T of the
Commission.
“Repayment Event” means any event or condition which, either immediately or with notice or passage of time or both,
(i) gives the holder of any bond, note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary of the Company, or (ii) gives any counterparty (or any person acting on such counterparty’s behalf) under any swap agreement, hedging agreement or similar agreement or instrument to which the Company or any
subsidiary of the Company is a party the right to liquidate or accelerate the payment obligations, or designate an early termination date under such agreement or instrument, as the case may
be.
“Rule 163,”
“Rule 164,” “Rule 172,”
“Rule 173,” “Rule 401,”
“Rule 405,” “Rule 424(b)” “Rule 430B” and “Rule 433” refer to such rules under the 1933
Act.
“Rule 430B Information” means the information included in any preliminary prospectus or the Prospectus or any
amendment or supplement to any of the foregoing filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) that was omitted from the Registration Statement at the time it first became effective but is deemed to be part of and included in the Registration
Statement pursuant to Rule 430B.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act” means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated thereunder or
implementing the provisions thereof.
“Subject Instruments” means the Existing Credit Agreement, the Existing Indenture and all other instruments, agreements and documents filed or incorporated by reference as exhibits to the Registration Statement
pursuant to Rule 601(b)(10) of Regulation S-K of the Commission; provided that if any instrument, agreement or other document filed or incorporated by reference as an exhibit to the Registration Statement as aforesaid has been redacted or if any
portion thereof has been deleted or is otherwise not included as part of such exhibit (whether pursuant to a request for confidential treatment or otherwise), the term “Subject Instruments” shall nonetheless mean such instrument,
agreement or other document, as the case may be, in its entirety, including any portions thereof which shall have been so redacted, deleted or otherwise not
filed.
37
“Termination Event” means any event or
condition which gives any person the right, either immediately or with notice or passage of time or both, to terminate or limit (in whole or in part) any Company Documents or any rights of the Company or any of its subsidiaries thereunder,
including, without limitation, upon the occurrence of a change of control of the Company or other similar events.
“UNSC” means the United Nations Security Council.
“1933 Act” means the Securities Act of 1933, as
amended.
“1933 Act Regulations” means the rules and regulations of the Commission under the 1933
Act.
“1934 Act” means the Securities Exchange Act of 1934, as
amended.
“1934 Act Regulations” means the rules and regulations of the Commission under the 1934
Act.
“1940 Act” means the Investment Company Act of 1940, as
amended.
All references in this Agreement to the Registration Statement, any
preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the version thereof filed with the Commission pursuant to ▇▇▇▇▇ and all versions thereof
delivered (physically or electronically) to the Representatives or the
Underwriters.
All references in this Agreement to financial statements and schedules
and other information which is “contained,” “included” or “stated” in any preliminary prospectus or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is incorporated
by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may
be.
SECTION 16. Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that it has not made and, unless it
obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that constitutes or would constitute an “issuer free writing prospectus” (as defined in Rule 433) or that otherwise
constitutes or would constitute a “free writing prospectus” (as defined in Rule 405) or portion thereof required to be filed with the Commission or required to be retained by the Company pursuant to Rule 433; provided that the prior
written consent of the Representatives shall be deemed to have been given in respect of the Issuer General Use Free Writing Prospectuses, if any, listed on Exhibit I hereto and, to any electronic road show in the form previously provided by the
Company to and approved by the Representatives. Any such free writing prospectus consented to or deemed to have been consented to as aforesaid
38
is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company represents, warrants and agrees that it has
treated and will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit I hereto are Permitted
Free Writing
Prospectuses.
Each Underwriter represents, warrants and agrees that, without the consent of the Company and the Representative, it has not made and will not make any offer relating to the Securities that would
constitute a free writing prospectus that would be required to be filed with the Commission other than a Permitted Free Writing Prospectus, if any.
SECTION 17.
Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
(a)each of the Underwriters is acting solely as an underwriter in connection with the sale of the Securities
and no fiduciary, advisory or agency relationship between the Company, on the one hand, and any of the Underwriters, on the other hand, has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or
not any of the Underwriters has advised or is advising the Company on other matters;
(b)the public offering price of the Securities and the price to be paid by the Underwriters for the Securities
set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Representatives;
(c)it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this
Agreement;
(d)it is aware that the Underwriters and their respective affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and that none of the Underwriters has any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship or otherwise;
and
(e)it waives, to the fullest extent permitted by law, any claims it may have against any of the Underwriters
for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on its behalf or in right of it or the Company or any stockholders, employees or creditors of Company.
SECTION 18.
Research Analyst Independence. The Company acknowledges that the Underwriters’ respective research
analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ respective research analysts and
research departments may
39
hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment
banking divisions. The Company hereby waives and releases, to the fullest extent permitted by applicable law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that
the views expressed by their respective research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ respective investment banking divisions. The
Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or
short positions in debt or equity securities of the Company and other entities that may be the subject of the transactions contemplated by this Agreement.
SECTION 19.
Trial By Jury. The Company (on its own
behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
[Signature Page
Follows]
40
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title: President & Chief Executive
Officer
41
CONFIRMED AND ACCEPTED, as of the
date
first above
written:
▇▇▇▇▇ FARGO
SECURITIES, LLC
By /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title:
Director
▇.▇. ▇▇▇▇▇▇ SECURITIES
LLC
By /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
RBC CAPITAL MARKETS,
LLC
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
For themselves and as Representatives of the Underwriters named in Exhibit A
hereto.
42
EXHIBIT A
Name of
Underwriter |
Number of
Initial Securities |
▇▇▇▇▇ Fargo
Securities, LLC........................................................................... |
352,000 |
RBC Capital Markets,
LLC............................................................................ |
220,000 |
▇.▇. ▇▇▇▇▇▇ Securities
LLC............................................................................ |
220,000 |
USCA Securities LLC
..................................................................................... |
70,400 |
▇▇▇▇▇▇ & Company,
LLC................................................................................. |
17,600 |
Total................................................................................... |
880,000 |
A-1
EXHIBIT
B
SIGNIFICANT SUBSIDIARIES OF THE
COMPANY
None
B-1
EXHIBIT C
LIST OF PERSONS SUBJECT TO
LOCK-UP
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Ngoni Murandu
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
MardiLyn ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
C. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
C-1
EXHIBIT
D
FORM OF LOCK-UP
AGREEMENT
Public Offering of Common
Stock
Dated as of November 10,
2016
▇▇▇▇▇ Fargo
Securities, LLC
▇.▇. ▇▇▇▇▇▇ Securities LLC
RBC Capital Markets, LLC
As Representatives of the
several Underwriters
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
RBC Capital Markets, LLC
Three World Financial
Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
Ladies and Gentlemen:
This agreement is
being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting
Agreement”) among Northwest Natural Gas Company, an Oregon corporation (the “Company”) and ▇▇▇▇▇ Fargo Securities, LLC (“▇▇▇▇▇
Fargo”), ▇.▇. ▇▇▇▇▇▇ Securities LLC (“▇.▇. ▇▇▇▇▇▇”) and RBC Capital Markets, LLC (“RBC”), as
representatives of a group of underwriters (the “Underwriters”), relating to a proposed
underwritten public offering of common stock (the “Common Stock”) of the
Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, and in light of the benefits that the offering of the Common Stock will confer upon the undersigned in its capacity as a securityholder and/or an officer or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning on and including the date of the Underwriting Agreement through and including the date that
is the 60th day after the date of the Underwriting Agreement (such period, the “Lock-Up Period”), the undersigned will not, without the prior written consent of ▇▇▇▇▇ Fargo, directly or
indirectly:
(i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer
D-1
or dispose of
any shares of the Company’s Common Stock or preferred stock or other capital stock (collectively, “capital stock”) or any securities convertible into or exercisable or exchangeable for Common Stock or other capital stock, whether
now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or
(ii) enter into any swap or other agreement, arrangement or
transaction that transfers to another, in whole or in part, directly or indirectly, any of the economic consequence of ownership of any Common Stock or other capital stock or any securities convertible into or exercisable or exchangeable for any
Common Stock or other capital stock,
whether any transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock, other capital stock, other securities, in cash or otherwise, or publicly announce any intention to do any of the foregoing.
Notwithstanding the provisions set forth in the immediately preceding paragraph, the
undersigned may, without the prior written consent of ▇▇▇▇▇ Fargo, transfer any Common Stock or other capital stock or any securities convertible into or exchangeable or exercisable for Common Stock or other capital
stock:
(1) if the undersigned is a natural person, as a bona
fide gift or gifts or by will, by intestate succession or pursuant to a so-called “living trust” or other revocable trust established to provide for the disposition of property on the undersigned’s death, in each case to any member
of the immediate family (as defined below) of the undersigned or to a trust the beneficiaries of which are exclusively the undersigned or members of the undersigned’s immediate family, or as a bona fide gift or gifts to a charity or
educational institution,
(2) if the undersigned is a
partnership or a limited liability company, to a partner or member, as the case may be, of such partnership or limited liability company if, in any such case, such transfer is not for value,
(3) shares of Common Stock deemed sold to the Company upon a
cashless exercise of options or to satisfy tax withholding obligations in connection with the vesting of equity awards or otherwise deemed sold or transferred in connection with the issuance of shares pursuant to any employee benefit plans or other
employee, executive or director compensation plan or the NW Natural Dividend Reinvestment and Direct Stock Purchase Plan, and
(4) to the Underwriters pursuant to the Underwriting
Agreement;
provided, however, that in the case of any transfer described in clause (1) or
(2) above, it shall be a condition to the transfer that (A) the transferee executes and delivers to ▇▇▇▇▇ Fargo, acting on behalf of the Underwriters, not later than one business day prior to such transfer, a written agreement, in
substantially the form of this agreement (it being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family of the undersigned and not to the
immediate family of the transferee) and otherwise reasonably satisfactory in form and substance to ▇▇▇▇▇ Fargo, (B) in the case of a transfer pursuant to clause (1) above, if the undersigned is required to file a report under
Section 16(a) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), reporting
a reduction in beneficial ownership of shares of Common Stock or other capital stock or any securities convertible into or exercisable or exchangeable for Common Stock or other capital stock by the undersigned during the Lock-Up Period (as the same
may be extended as described above), the undersigned shall include a statement in such report to the effect that such transfer is not a transfer for value and that such transfer is being made as a gift, by will or intestate succession or pursuant to
a so-called “living trust” or other revocable trust established
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to provide for the disposition of property on the undersigned’s death, as the case may be, (C) in the case of a transfer pursuant to clause (2) above, no filing under
Section 16(a) of the 1934 Act reporting a reduction in beneficial ownership of shares of Common Stock or other capital stock or any securities convertible into or exercisable or exchangeable for Common Stock or other capital stock shall be
required to be made during the Lock-Up Period (as the same may be extended as described above) and (D) in the case of a transfer pursuant to clause (1) or (2) above, no voluntary filing with the Securities and Exchange Commission or
other public report, filing or announcement shall be made in respect of such transfer during this Lock-Up Period (as the same may be extended as described
above). For purposes of this paragraph, “immediate family” shall mean any relationship by blood,
marriage or adoption not more remote than the first cousin.
The undersigned further
agrees that (i) it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to the registration under the Securities Act of 1933, as amended (the “1933 Act”), of any shares of Common Stock or other capital stock or any securities convertible into or exercisable
or exchangeable for Common Stock or other capital stock, and (ii) the Company may, with respect to any Common Stock or other capital stock or any securities convertible into or exercisable or exchangeable for Common Stock or other capital stock
owned or held (of record or beneficially) by the undersigned, cause the transfer agent or other registrar to enter stop transfer instructions and implement stop transfer procedures with respect to such securities during the Lock-Up
Period.
The undersigned hereby waives any and all notice requirements and rights with
respect to the registration of any securities pursuant to any agreement, instrument, understanding or otherwise, including any registration rights agreement or similar agreement, to which the undersigned is a party or under which the undersigned is
entitled to any right or benefit and any tag-along rights, co-sale rights or other rights to have any securities (debt or equity) included in the offering contemplated by this agreement or sold in connection with the sale of Securities pursuant to
the Underwriting Agreement, provided that such waiver shall apply only to the public offering of Common Stock pursuant to the Underwriting Agreement and each registration statement filed under the 1933 Act in connection
therewith.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this agreement and that this agreement has been duly authorized (if applicable), executed and delivered by the undersigned and is a valid and binding agreement of the undersigned. This agreement and all
authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned (if a natural person) and shall be binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
If the Underwriting Agreement is not executed by the parties thereto
prior to November 30, 2016, this agreement shall automatically terminate and become null and void.
The undersigned acknowledges and agrees that whether or not any public offering of Common Stock actually occurs depends on a number of factors, including market
conditions.
THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
[Signature Page Immediately
Follows]
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IN WITNESS WHEREOF, the undersigned
has executed and delivered this agreement as of the date first set forth above.
Yours
very
truly,
Print Name:
D-4
EXHIBIT
E
FORM OF OPINION OF MARDILYN
▇▇▇▇▇▇▇▇
▇▇▇▇▇ Fargo Securities, LLC
▇.▇. ▇▇▇▇▇▇ Securities LLC
RBC Capital Markets,
LLC
As Representatives of the several
Underwriters
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
RBC Capital Markets, LLC
Three World Financial
Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
Ladies and
Gentlemen:
I am Senior Vice President, Regulation and General Counsel of Northwest Natural Gas Company, an Oregon corporation (the “Company”), and have acted as counsel to the Company in connection with the issuance and sale by the Company of
[•] shares of its Common Stock (the [Initial/Option] “Securities”) pursuant to an
Underwriting Agreement between the Company and the several underwriters named therein, for whom you are acting as representatives, dated [•], 2016 (the
“Underwriting Agreement”). Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the Underwriting Agreement. This opinion is rendered to you pursuant to Section 5(b) of the Underwriting
Agreement.
In my capacity as such counsel, I have either participated in the
preparation of or have examined and am familiar with:
(a)the Company’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”), and the Company’s Bylaws as amended through May 22, 2014 (the “Bylaws”);
(b)the Underwriting
Agreement;
(c)the Registration Statement;
(d)the General Disclosure Package;
(e)the Prospectus;
(f)a specimen of the Company’s common stock certificate certified as a true and correct representation of the common stock certificate used by the Company when the Company elects pursuant to
E-1
the Bylaws to issue certificates for some or all of any shares of the Common Stock (“Specimen Certificate”); and
(g)the records of various corporate proceedings relating to the authorization and issuance of the Securities by the Company and the authorization, execution and delivery by the Company of the Underwriting
Agreement.
I have also examined or caused to be examined such other documents and have satisfied myself as to such other matters as I have deemed necessary in order to render this opinion. In such examination,
I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, and the conformity to the originals of the documents submitted to me as certified or photostatic copies and the authenticity of the
originals of such latter documents. I have not examined the [Initial/Option] Securities, except a specimen thereof.
As to questions of fact material to the opinions expressed herein, I have relied upon certifications and representations of responsible officers of the Company, the Company’s transfer agent and
registrar, you and appropriate public officials and upon information set forth in the Registration Statement, the General Disclosure Package or the Prospectus, in each case without independent verification of such matters, except as otherwise
described herein.
Subject to
the foregoing and to the further exceptions and qualifications set forth below, I am of the opinion that:
(1)The Company has been duly organized and is validly existing as a corporation under the laws of the State of
Oregon.
(2)The Company has corporate power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the General Disclosure Package and in the Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(3)The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(4)(A) The Company has the authorized capitalization as set forth in the General Disclosure Package and
the Prospectus, (B) the [Initial/Option] Securities have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Company pursuant to the Underwriting Agreement
against payment of the consideration set forth in the Underwriting Agreement, will be validly issued, fully paid and non‑assessable; and (C) no holder of the [Initial/Option] Securities is or will be subject to personal liability by
reason of being such a holder under the charter or by-laws of the Company or the laws of the State of
Oregon.
(5)The sale of the [Initial/Option] Securities to the Underwriters pursuant to the Underwriting Agreement is
not subject to any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other person arising under the charter or bylaws of the Company, the laws of the State of Oregon or, to my knowledge,
otherwise.
(6)The form of certificate used to evidence the Common Stock complies in all material respects with all
applicable requirements of the laws of the State of Oregon, and with any applicable requirements of the charter and by-laws of the Company.
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(7)To my knowledge, except as otherwise disclosed in the General Disclosure Package and the Prospectus, there
is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending or threatened, against or affecting the Company or any of its subsidiaries which is required to
be disclosed in the Pre-Pricing Prospectus or the Prospectus, as the case may be, or which might reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or to materially and adversely affect the consummation
of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations thereunder.
(8)The information in the Pre-Pricing Prospectus and the Prospectus under the captions “Description of Common Stock,” the information
in the Company’s Annual Report on Form 10-K for the fiscal year ended 2015 under the captions “Business-Regulation and Rates” and “Legal Proceedings” (as such information under such captions in such Annual Report
on Form 10-K is modified or supplemented in subsequent reports filed pursuant to the 1934 Act and the 1934 Act Regulations), in each case to the extent that it constitutes matters of law, summaries of legal matters, summaries of provisions of the
Company’s charter or bylaws, summaries of legal proceedings, or legal conclusions, is correct in all material respects.
(9)All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of any Company Documents are accurate in all material
respects.
(10)To my knowledge, there are no franchises, contracts, indentures, mortgages, deeds of trust, loan or credit
agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements required to be described or referred to in the Registration Statement, the Pre-Pricing Prospectus or the Prospectus or the documents
incorporated or deemed to be incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
(11)(A) The OPUC has issued one or more orders authorizing, and the appropriate filing has been made with the WUTC to establish compliance with applicable statutory provisions with respect to, the issuance and
sale by the Company of the [Initial/Option] Securities are in conformity with the terms of such orders and in compliance with such filing, (B) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, which have been obtained, or as may be required under the state securities or blue sky laws, as to
which we have not been called upon to express an opinion), (C) no authorization, approval, vote or other consent of any stockholder of the Company, (D) no authorization, approval, waiver or consent under any Subject Instrument, and
(E) to my knowledge, no other authorization, approval, vote or other consent of any other person or entity, is necessary or required for the authorization, execution or delivery of the Underwriting Agreement by the Company for the offering of
the [Initial/Option] Securities as contemplated by the Underwriting Agreement or for the issuance, sale or delivery of the [Initial/Option] Securities.
(12)The execution, delivery and performance of the Underwriting Agreement and the consummation of the transactions contemplated in the Underwriting Agreement, the Registration Statement, the General Disclosure
Package and the Prospectus (including the issuance and sale of the Securities by the Company and the use of the proceeds from the sale of the [Initial/Option] Securities as described in the Pre-Pricing Prospectus and the Prospectus under the caption
“Use of Proceeds”) and compliance by the Company with its obligations under the Underwriting Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of,
or default, Termination Event or Repayment Event under, or result in the creation or imposition of any Lien upon any property or assets of the Company or any of its subsidiaries pursuant to, (x) any Subject Instrument or (y) any other
E-3
Company Document, except for such conflicts, breaches, defaults or Liens that would not, individually or in the aggregate, result in a Material Adverse Effect, nor will such action result in any violation
of the provisions of the Organizational Documents of the Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to me, of any government, government instrumentality or court having
jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or
operations.
In connection with the transactions contemplated by the Underwriting Agreement, I have participated in conferences with officers and other representatives of the Company, representatives of the
independent public accountants and counsel for the Company and representatives of the Underwriters, at which conferences the contents of the Registration Statement, the General Disclosure Package and the Prospectus, and any supplements or amendments
to any of the foregoing, and related matters were discussed. Although, other than with respect to the opinions expressed in paragraphs (8) and (9), I am not passing upon and do not assume any responsibility for the accuracy, completeness or fairness
of the statements in the Registration Statement, the General Disclosure Package, the Prospectus or any supplements and amendments to any of the foregoing, and have made no independent check or verification thereof, nothing has come to my attention
that would lead me to believe that:
(1)the Registration Statement or any post-effective amendments thereto, at the respective times they first were declared became effective or at any subsequent time that the Company filed an Annual Report on
Form 10-K or any amendment thereto, or the Registration Statement (including the Rule 430B Information), at each deemed new effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(2)the General Disclosure Package, as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
or
(3)the Prospectus and any supplements thereto, as of the date of the Prospectus, as of the date of any such
supplement or the date of this letter, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading,
except in each case that I make no statement nor express any belief with respect to financial statements and schedules and other financial or statistical data included or incorporated by reference in or
omitted from the Registration Statement, the General Disclosure Package, or the Prospectus or any amendment or supplement to any of the foregoing, or as to any information contained therein furnished to the Company in writing by any of you expressly
for use
therein.
This opinion is limited to matters arising under the federal laws of the United States and the laws of the States of Oregon and Washington. As to all matters involving the application of the laws of the State of Washington, I have relied upon the opinion of even
date herewith addressed to you of Stoel Rives LLP, Washington counsel to the
Company.
This opinion is
solely for your benefit and the benefit of the other Underwriters in connection with the Underwriting Agreement and the transactions contemplated thereunder and it may not be relied upon in any manner by any other person or for any other purpose,
without my prior written consent, except that ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely on this opinion as to all matters of Oregon law in rendering its
E-4
opinion required to be delivered
under the Underwriting Agreement. This opinion is expressed as of the date hereof, and I do not assume any obligation to update or supplement it to reflect any fact or circumstance that hereafter comes to my attention, or any change in law that
hereafter
occurs.
Very truly yours,
E-5
EXHIBIT
F
FORM OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇▇ & BOCKIUS
LLP
▇▇▇▇▇ Fargo Securities, LLC
▇.▇. ▇▇▇▇▇▇ Securities LLC
RBC Capital Markets,
LLC
As Representatives of the several
Underwriters
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
RBC Capital Markets, LLC
Three World Financial
Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
Ladies and
Gentlemen:
We have acted as counsel to Northwest Natural Gas Company, an Oregon corporation (the “Company”), in connection with the issuance and sale by the Company of [•] shares of its Common Stock (the [Initial/Option] “Securities”) pursuant to an Underwriting Agreement between the Company and the several underwriters named therein,
for whom you are acting as representatives, dated [•], 2016 (the “Underwriting Agreement”).
Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Underwriting Agreement. This opinion is rendered to you pursuant to Section 5(b) of the Underwriting
Agreement.
In our capacity as such counsel, we have either participated in the
preparation of or have examined and are familiar with:
(a)the Company’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”), and the Company’s Bylaws as amended through May 22, 2014 (the “Bylaws”);
(b)the Underwriting
Agreement;
(c)the Registration Statement;
(d)the General Disclosure
Package;
(e)the Prospectus;
(f)a specimen of the Company’s common stock certificate certified as a true and correct representation of the common stock certificate used by the Company when the Company elects pursuant to
F-1
the Bylaws to issue certificates for some or all of any shares of the Common Stock (“Specimen Certificate”); and
(g)the records of various corporate proceedings relating to the authorization and issuance of the Securities by the Company and the authorization, execution and delivery by the Company of the Underwriting
Agreement.
We have also examined or caused to be examined such other documents and have satisfied ourselves as to such other matters as we have deemed necessary in order to render this opinion. In such
examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to the originals of the documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. We have not examined the [Initial/Option] Securities, except a specimen
thereof.
As to questions of fact material to the opinions expressed herein, we have
relied upon certifications and representations of responsible officers of the Company, the Company’s transfer agent and registrar, you and appropriate public officials and upon information set forth in the Registration Statement, the General
Disclosure Package or the Prospectus, in each case without independent verification of such matters, except as otherwise described
herein.
Subject to the
foregoing and to the further exceptions and qualifications set forth below, we are of the opinion that:
(1)The Company has been duly organized and is validly existing as a corporation under the laws of the State of
Oregon.
(2)The Company has corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the General Disclosure Package and in the Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(3)The Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
(4)(A) The Company has the authorized capitalization as set forth in the General Disclosure Package
and the Prospectus, (B) the [Initial/Option] Securities have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Company pursuant to the Underwriting Agreement
against payment of the consideration set forth in the Underwriting Agreement, will be validly issued, fully paid and non‑assessable; and (C) no holder of the [Initial/Option] Securities is or will be subject to personal liability by
reason of being such a holder under the charter or by-laws of the Company, the laws of the State of Oregon or, to our knowledge, otherwise.
(5)The sale of the [Initial/Option] Securities to the Underwriters pursuant to the Underwriting Agreement is not subject to any preemptive rights, rights of first refusal or other similar rights of any
securityholder of the Company or any other person arising under the charter or bylaws of the Company, or the laws of the State of Oregon.
(6)Each of the Registration Statement and any post-effective amendments thereto has been declared effective under the 1933 Act; the Pre-Pricing Prospectus and the Prospectus and any
F-2
amendments or supplements thereto have been filed with the Commission pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any
required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted by or are pending before the Commission.
(7)The Registration Statement, any post-effective amendments thereto, as of their respective effective dates, and the Prospectus and any amendments or supplements thereto, as of their respective dates (in
each case other than the financial statements and schedules and other financial and statistical data included therein or omitted therefrom, as to which we have not been called upon to express an opinion), complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations.
(8)The documents incorporated or deemed to be incorporated by reference in the Pre-Pricing Prospectus
and the Prospectus (other than the financial statements and schedules and other financial and statistical data
included therein or omitted therefrom, as to which we have not been called upon to express an opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
(9)The form of certificate used to evidence the Common Stock complies in all material respects with all
applicable requirements of the laws of the State of Oregon, and with any applicable requirements of the charter and by-laws of the Company.
(10)The statements set forth in the Pre-Pricing Prospectus and the Prospectus under the caption “Certain United States Federal Income Tax
Considerations for Non-U.S. Holders”, insofar as such statements purport to describe certain federal income or estate tax laws and regulations of the United States, are accurate in all material
respects.
(11)(A) The OPUC has issued one or more orders authorizing, and the appropriate filing has been made
with the WUTC to establish compliance with applicable statutory provisions with respect to, the issuance and sale by the Company of the [Initial/Option] Securities are in conformity with the terms of such orders and in compliance with such filing,
(B) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, which have been obtained, or as may be required under the state securities or blue sky laws, as to which we have not been called upon to express an opinion), (C) no authorization, approval, vote or other consent of any stockholder
of the Company, (D) no authorization, approval, waiver or consent under any Subject Instrument, and (E) to our knowledge, no other authorization, approval, vote or other consent of any other person or entity, is necessary or required for
the authorization, execution or delivery of the Underwriting Agreement by the Company for the offering of the [Initial/Option] Securities as contemplated by the Underwriting Agreement or for the issuance, sale or delivery of the [Initial/Option]
Securities.
(12)The Company is not and, upon the issuance and sale of the [Initial/Option] Securities to be sold by
the Company as contemplated in the Underwriting Agreement and the receipt and application of the net proceeds therefrom as described in the Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds,” will not be an
“investment company” as such term is defined in the 1940 Act.
F-3
In acting as counsel to the
Company in connection with the transactions contemplated by the Underwriting Agreement, we have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants and counsel for
the Company and representatives of the Underwriters, at which conferences the contents of the Registration Statement, the General Disclosure Package and the Prospectus, and any supplements or amendments to any of the foregoing, and related matters
were discussed. Although, other than with respect to the opinions expressed in paragraph (10), we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements in the Registration Statement,
the General Disclosure Package, the Prospectus or any supplements and amendments to any of the foregoing, and have made no independent check or verification thereof, nothing has come to our attention that would lead us to believe
that:
(1)the
Registration Statement or any post-effective amendments thereto, at the respective times they first were declared became effective or at any subsequent time that the Company filed an Annual Report on Form 10-K or any amendment thereto, or the
Registration Statement (including the Rule 430B Information), at each deemed new effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading;
(2)the General Disclosure Package, as of the Applicable Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
or
(3)the Prospectus and any supplements thereto, as of the date of the Prospectus, as of the date of any
such supplement or the date of this letter, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not
misleading,
except in each case that we make no statement nor express any belief with respect to financial statements and schedules and other financial or statistical data included or incorporated by reference
in or omitted from the Registration Statement, the General Disclosure Package, or the Prospectus or any amendment or supplement to any of the foregoing, or as to any information contained therein furnished to the Company in writing by any of you
expressly for use
therein.
This opinion is
limited to matters arising under the federal laws of the United States and the laws of the States of Oregon and Washington. As to all matters involving the application of the laws of the State of Oregon, we have relied upon the opinion of even date
herewith addressed to you of MardiLyn ▇▇▇▇▇▇▇▇, Senior Vice President, Regulation and General Counsel of the Company. As to all matters involving the application of the laws of the State of Washington, we have relied upon the opinion of even date
herewith addressed to you of Stoel Rives LLP, Washington counsel to the
Company.
This opinion is
solely for your benefit and the benefit of the other Underwriters in connection with the Underwriting Agreement and the transactions contemplated thereunder and it may not be relied upon in any manner by any other person or for any other purpose,
without our prior written consent. This opinion is expressed as of the date hereof, and we do not assume any obligation to update or supplement it to reflect any fact or circumstance that hereafter comes to our attention, or any change in law that
hereafter
occurs.
Very truly yours,
F-4
EXHIBIT
G
FORM OF OPINION OF STOEL RIVES
LLP
▇▇▇▇▇ Fargo
Securities, LLC
▇.▇. ▇▇▇▇▇▇ Securities LLC
RBC Capital Markets, LLC
As Representatives of the
several Underwriters
c/o Wells Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities
LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
RBC Capital Markets, LLC
Three World Financial
Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
Ladies and
Gentlemen:
We have acted as special Washington counsel to Northwest Natural Gas Company, an Oregon corporation (the
“Company”), in connection with the issuance and sale by the Company of [•] shares of its
Common Stock (the [Initial/Option] “Securities”) pursuant to an Underwriting Agreement between
the Company and the several underwriters named therein, for whom you are acting as representative, dated November [•], 2016 (the “Underwriting
Agreement”). Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in the Underwriting Agreement. This opinion is rendered to you pursuant to
Section 5(b) of the Underwriting Agreement.
In our capacity as special Washington
counsel, we have reviewed the filings with the Washington Utilities and Transportation Commission (the “WUTC”) with respect to the issuance and sale of the [Initial/Option] Securities and such other matters as we have deemed to be necessary to enable us to render the opinions expressed
herein.
Based on the foregoing
and subject to the qualifications set forth below, we are of the opinion that:
(1) The
Company is authorized to transact business in the State of
Washington.
(2) The Company has filed a statement, dated October 25, 2016, with the WUTC, which was entered by the WUTC in Docket UG-161164 on October 28, 2016, establishing compliance with applicable statutory
provisions with respect to the issuance and sale by the Company of the [Initial/Option] Securities; the statement complied with the terms of the Revised Code of Washington 80.08.040; the issuance and sale of the [Initial/Option] Securities in
accordance with the Underwriting Agreement are in compliance with the statement; and under the laws of the State of Washington, no
G-1
further approval, authorization,
consent or other order of any public board or body is legally required for the issuance and sale of the [Initial/Option] Securities on the terms and conditions set forth in the Underwriting
Agreement.
(3) The consummation of the transactions contemplated in the Underwriting Agreement and the fulfillment of the terms thereof will not violate the provisions of any applicable law, rule or regulation
of the State of
Washington.
The laws, rules and regulations referred to in Paragraph 3 above are those laws, rules and regulations of the State of Washington which, in
our experience, are normally applicable to general business corporations that engage in transactions of the type contemplated by the Underwriting Agreement, except that we express no opinion as to (i) the securities or blue sky laws of any
jurisdiction and (ii) the effect or applicability of the laws, rules and regulations of any other jurisdiction.
This opinion is limited to matters arising under the laws of the State of Washington.
This opinion is solely for
your benefit and the benefit of the other Underwriters in connection with the Underwriting Agreement and the transactions contemplated thereunder and it may not be relied upon in any manner by any other person or for any other purpose, without our
prior written consent, except that MardiLyn ▇▇▇▇▇▇▇▇, Senior Vice President, Regulation and General Counsel of the Company, and ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely on this opinion as to all matters of Washington law in rendering their opinions
required to be delivered under the Underwriting Agreement. This opinion is expressed as of the date hereof, and we do not assume any obligation to update or supplement it to reflect any fact or circumstance that hereafter comes to our attention, or
any change in law that hereafter
occurs.
Very truly yours,
STOEL RIVES
LLP
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EXHIBIT
H
PRICE-RELATED
INFORMATION
Public offering price: $54.63 per
share
Net proceeds, before expenses, to the Company: $52.58 per
share
Settlement date: November 16, 2016
H-1
EXHIBIT
I
ISSUER GENERAL USE FREE WRITING
PROSPECTUSES
None
I-1