8-K
1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 15, 1995
LACLEDE GAS COMPANY
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(Exact name of registrant as specified in its charter)
Missouri 1-1822 43-0368139
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identifica-
tion No.)
720 Olive Street St. Louis, Missouri 63101
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (314) 342-0500
NONE
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(Former name or former address, if changed since last report)
Item 5. Other Events.
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Pursuant to an Underwriting Agreement, dated May 15, 1995 (the
"Underwriting Agreement"), Laclede Gas Company (the "Registrant"), on
May 22, 1995, sold to the Underwriters named on Schedule I of the attached
Underwriting Agreement 1,550,000 shares of its common stock par value $1.00
per share (the "Shares"). The registration statement on Form S-3 with
respect to the Shares of the Registrant (File No. 33-58757), was filed by
the Registrant on April 21, 1995 and declared effective by the Securities
and Exchange Commission on May 15, 1995. A copy of the Underwriting
Agreement is attached hereto as Exhibit 1.01.
Item 7. Exhibits.
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Reference is made to the information contained in the
Index to Exhibits filed as part of this Form 8-K.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LACLEDE GAS COMPANY
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(Registrant)
By: Robert J. Carroll
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Robert J. Carroll
Vice President-Finance
and Chief Financial
Officer
May 23, 1995
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(Date)
Index to Exhibits
Exhibit No.
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1.01 Underwriting Agreement, dated
May 15, 1995, entered into by the
Registrant and the Representatives
of the Underwriters relating to the
Shares.
EX-1.01
2
UNDERWRITING AGREEMENT
LACLEDE GAS COMPANY
Common Stock
May 15, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Laclede Gas Company, a Missouri corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell
severally to you (the "Representatives") and the other several Underwriters
named in Schedule I hereto (collectively, including any underwriter
substituted as hereinafter provided in Section 4 hereof, the "Underwriters")
the aggregate number of shares of the Common Stock, par value $1 per share,
of the Company ("Common Stock") set forth on Schedule I hereto (the "Firm
Shares"). The Company also proposes, subject to the terms and conditions
stated herein, to issue and sell severally to the Underwriters not more than
an additional 200,000 shares of Common Stock ("Option Shares"), if and to
the extent that the Representatives, on behalf of the Underwriters, shall
have determined to exercise the right to purchase Option Shares pursuant to
Section 2(c)
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hereof. As used herein, the term "Securities" shall mean, collectively, the
Firm Shares and Option Shares.
1. Representations and Warranties of the Company. The
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Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-58757)
with respect to the Securities has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations of the Securities
and Exchange Commission (the "Commission") under the Act (the
"Regulations"), has been filed with the Commission and has become
effective. The Company meets the requirements for the use of Form S-3
under the Act. Copies of such registration statement, together with
all amendments, if any, and the prospectus contained therein, in the
form in which it became effective, including the documents
incorporated in such prospectus by reference, have heretofore been
delivered to the Underwriters. Such registration statement in the
form in which it most recently became effective, including all
exhibits thereto and the information deemed to be a part thereof
pursuant to Rule 430A(b) of the Regulations, is referred to
hereinafter as the "Registration Statement." The prospectus,
including the documents incorporated therein by reference, contained
in the Registration Statement is referred to hereinafter as the
"Prospectus"; provided, however, that, as used in this Agreement
(except in this Section 1), upon the completion of the Prospectus on
or after the date hereof (whether by filing the Prospectus as so
completed with the Commission pursuant to Rule 424(b) of the
Regulations or an amendment to the Registration Statement with the
Commission under the Act in accordance with Rule 430A of the
Regulations or as a result of any other revision thereof or supplement
thereto provided to the Underwriters for use in connection with the
offering of the Securities that differs from the Prospectus on file
with the Commission at the time the Registration Statement became
effective, whether or not such revision or supplement is required to
be filed with the Commission pursuant to Rule 424(b) of the
Regulations), the term "Prospectus" shall mean the Prospectus as so
completed (the "Completed Prospectus"). All references in this
Agreement to amendments or supplements to the Registration Statement,
the Prospectus or the Completed Prospectus shall be deemed to mean and
include the filing of any document under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of this
Agreement that is or is deemed to be incorporated by reference in the
Prospectus.
(b) No stop order with respect to the Registration Statement
has been issued by the Commission under the Act and no proceeding
therefor is pending before, or to the knowledge of the Company
threatened by, the Commission; the Registration Statement, at the time
it became effective, complied in all material respects with the
requirements of the Act and the Regulations and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; neither the Prospectus, on the date hereof,
nor the Completed Prospectus, at the time it is filed with the
Commission pursuant to Rule 424(b) of the Regulations or first used
and at the Time of Delivery and an Option Shares Time of Delivery
(each as defined in Section 4 hereof), as the case may be, contains or
will contain an untrue statement of a material fact or omits or will
omit to state a
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material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and each document incorporated by reference
in the Prospectus, at the time it was or will be filed with the
Commission under the Exchange Act, conformed or will conform when so
filed in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder (the
"Exchange Act Regulations"); provided, however, that the
representations and warranties contained in this Section 1(b) shall
not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished in writing to the Company, through the
Representatives by any Underwriter, expressly for use in the
Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries taken as a whole and there has not been any material
transaction entered into by the Company, other than transactions in
the ordinary course of business and transactions referred to in, or
contemplated by, the Prospectus; and the Company does not have any
material contingent obligation that is not disclosed in the
Prospectus.
(d) Neither the Company or any of its subsidiaries is, or
with the giving of notice or the lapse of time or both would be, in
breach of any of the terms and provisions of, or in default under, nor
will the consummation by the Company of the transactions herein
contemplated or the fulfillment of the terms hereof result in a breach
of any of the terms or provisions of, or constitute a default under,
the Articles of Incorporation or By-Laws of the Company, each as
amended, or any statute, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it
is bound or to which any of the property of the Company is subject, or
any order, rule or regulation applicable to the Company of any court
or governmental agency or body having jurisdiction over the Company or
any of its properties, nor will any such action result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to the terms
of any such agreement or instrument; the Missouri Public Service
Commission (the "MPSC") has issued an order authorizing the issuance
and sale of the Securities, which order is in full force and effect;
and no other approval, authorization, consent or order of any public
board or body is legally required for the issuance and sale of the
Securities by the Company hereunder, except such as may be required
under the Act or state securities laws.
(e) The financial statements, together with related notes,
incorporated by reference in the Prospectus present fairly the
financial position and the results of operations of the Company on the
bases set forth in such statements and related notes at the dates or
for the periods to which they apply; such statements and related notes
have been prepared in accordance with generally accepted principles of
accounting, consistently applied throughout the periods involved,
except as otherwise stated therein; and the supporting schedules
incorporated by reference in the Prospectus present fairly the
information required to be stated therein.
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(f) The Company is a validly organized and existing
corporation in good standing under the laws of the State of Missouri,
with full power and authority to own or lease its properties and
conduct its business as described in the Prospectus; each of the
Company's subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority to
own or lease its properties and conduct its business; and each of the
Company and its subsidiaries is duly qualified to do business and is
in good standing in each jurisdiction in which the character of the
business conducted by it or the location of the properties owned or
leased by it makes such qualification necessary, except where the
failure to so qualify would not have a material adverse effect in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
taken as a whole.
(g) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus (except for changes that
the Registration Statement discloses have occurred or may occur or
that were occasioned by the declaration of dividends and for Common
Stock offered under the Company's shareholder and employee plans,
including, without limitation, the Company's Dividend Reinvestment and
Stock Purchase Plan); all of the outstanding shares of the capital
stock of the Company (other than the Securities) have been duly and
validly authorized and issued and are fully paid and non-assessable;
when the Securities shall have been delivered against payment therefor
as provided herein, they will have been duly and validly authorized
and issued and fully paid and non-assessable and entitled to the
rights set forth in the Company's Articles of Incorporation, as
amended, and the Rights Agreement dated as of April 17, 1986 between
the Company and The Boatmen's National Bank of St. Louis, as rights
agent thereunder; other than as set forth in the Prospectus, there are
no preemptive rights or other rights to subscribe for or to purchase,
or any restriction upon the voting or transfer of, any shares of
Common Stock pursuant to the Articles of Incorporation or By-Laws of
the Company, each as amended, or other agreement or instrument to
which the Company is a party or by which it is bound or to which any
of the property of the Company is subject; and the Common Stock,
including the Securities, conforms to the description thereof
contained in the Prospectus.
(h) No labor dispute with any employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors, which labor dispute or disturbance in
each case might reasonably be expected to result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries taken as a whole.
(i) Other than as set forth in the Prospectus, there are no
legal, governmental or administrative proceedings pending to which the
Company is a party or of which any property of the Company is the
subject, the outcome of which, singly or in the aggregate, might
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
taken as a whole; and, to the best of the
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Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(j) The Company and its subsidiaries have all valid material
franchises, licenses and permits as are required for the conduct of
their business as now conducted, and no franchise, license or permit
is subject to any deficiency, exception, restriction, condition or
limitation, except deficiencies, exceptions, restrictions, conditions
and limitations that do not materially adversely affect the conduct,
business and operation of the Company and its subsidiaries taken as a
whole; and the Company and its subsidiaries have complied with such
terms and provisions of franchises, licenses and permits the non-
compliance with which would materially adversely affect the conduct,
business and operation of the Company and its subsidiaries taken as a
whole.
(k) To the knowledge of the Company, no person or corporation
that is a "holding company" or a "subsidiary of a holding company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended, directly or indirectly owns, controls or holds with power
to vote ten percent or more of the outstanding voting securities of
the Company.
(l) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of any proceedings relating
to the revocation or modification of any such certificate, authority
or permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, might reasonably be expected
to materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole.
2. Purchase and Sale. (a) On the basis of the
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representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $18.22 per
share, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
(b) In addition, for the sole purpose of covering over-
allotments in connection with the sale of the Firm Shares, the Company
agrees to grant to the Underwriters an option to purchase from the Company
the number of Option Shares set forth in the notice referred to in Section
2(c) hereof (the "Option"). If the Option is exercised by the Underwriters,
on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price
of $18.22 per share, the number of Option Shares (subject to such
adjustments as the Representatives may determine in order to avoid
fractional shares) that bears the same proportion to the aggregate number of
Option Shares to be purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the
aggregate number of Firm Shares.
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(c) The Option may be exercised, in whole or in part from
time to time, within the period of 30 days from the date hereof, by written
notice from the Representatives, on behalf of the Underwriters, to the
Company. Such notice shall set forth the aggregate number of Option Shares
as to which the Option is being exercised and the date of delivery of, and
payment for, such Option Shares, which date shall be neither earlier than
the later of the Time of Delivery and the second Business Day (as defined
below) after the date of such exercise nor later than the seventh Business
Day after the date of such exercise. As used herein, "Business Day" shall
mean any day on which the New York Stock Exchange (the "NYSE") and banks in
the City of New York are open.
3. Offering. Subject to the terms and conditions herein set
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forth, the Underwriters will make a public offering of the Securities upon
the terms and conditions set forth in the Prospectus.
4. Payment and Delivery; Defaulting Underwriters. Delivery
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of the Firm Shares and payment therefor, in New York Clearing House funds
payable to the order of the Company, shall be made at the offices of
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York, at 10:00 A.M., New York City time, on the fifth Business Day after the
date hereof, or at such other place, time and date as shall be agreed upon
in writing by the Company and the Representatives. The hour and date of
such delivery and payment are herein called the "Time of Delivery."
The Firm Shares shall be delivered to the Underwriters, for
their respective accounts in fully registered form, in such authorized
denominations and registered in such names as the Representatives may
reasonably request in writing not later than 2:00 P.M., New York City time,
on the second Business Day after the date hereof, or to the extent not so
requested, registered in the respective names of the Underwriters in such
authorized denominations as the Company shall determine. The Company agrees
to make the certificates for the Firm Shares available to the
Representatives for checking purposes not later than 2:00 P.M., New York
City time, on the last full Business Day preceding the Time of Delivery, at
the offices of The Depository Trust Company, New York, New York, or at such
other place, time or date as may be agreed upon between the Company and the
Representatives.
Delivery of any Option Shares and payment therefor, in New
York Clearing House funds payable to the order of the Company, shall be made
at the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park
Plaza, New York, New York, at 10:00 A.M., New York City time, on the date
specified by the Representatives in accordance with Section 2(c) hereof, or
at such other place, time and date as shall be agreed upon in writing by the
Company and the Representatives. The hour and date of any such delivery and
payment are herein called an "Option Shares Time of Delivery."
Option Shares shall be delivered to the Underwriters, for
their respective accounts in fully registered form, in such authorized
denominations and registered in such names as the Representatives may
reasonably request in writing not later than 2:00 P.M., New York City time,
on the second Business Day preceding the Option Shares Time of Delivery with
respect to such Option Shares, or to the extent not so requested, registered
in the respective names of the Underwriters in such authorized denominations
as the Company shall determine. The
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Company agrees to make the certificates for such Option Shares available to
the Representatives for checking purposes not later than 2:00 P.M., New York
City time, on the last full Business Day preceding such Option Shares Time
of Delivery, at the offices of The Depository Trust Company, New York, New
York, or at such other place, time or date as may be agreed upon between the
Company and the Representatives.
If any one or more of the Underwriters shall default on its
obligation or their obligations to purchase and pay for the Securities that
it has or they have agreed herein to purchase and pay for (such Underwriter
or Underwriters that shall have so defaulted being referred to herein as the
"Defaulting Underwriters"), the Company shall immediately give written
notice of such default to the Representatives and the Underwriters that
shall not have so defaulted (the "Non-defaulting Underwriters") shall have
the right, within 24 hours after the receipt of such notice by the
Representatives, to determine to purchase or to procure one or more others,
which shall be members of the National Association of Securities Dealers,
Inc. (the "NASD") and reasonably satisfactory to the Company, to purchase,
upon the terms herein set forth, all (but not less than all) of the
Securities that the Defaulting Underwriters so agreed to purchase (the
"Defaulted Securities"). If the Non-defaulting Underwriters shall determine
to exercise such right, the Representatives shall give notice to the Company
of such determination within 24 hours after their receipt of notice from the
Company of such default. If the Representatives shall fail to give such
notice or, within such 24-hour period, shall give notice to the Company that
the Non-defaulting Underwriters will not exercise such right, then the
Company shall have the right, within a further 24 hours after the failure of
the Representatives to give such notice or within 24 hours after its receipt
of such notice from the Representatives, to procure one or more others,
which shall be members of the NASD and reasonably satisfactory to the
Representatives, to purchase, upon the terms herein set forth, all (but not
less than all) of the Defaulted Securities. In the event that the Non-
defaulting Underwriters or the Company shall have arranged for the purchase
of the Defaulted Securities as provided above, then either the Company or
the Representatives shall have the right to postpone the Time of Delivery or
an Options Shares Time of Delivery, as the case may be, for such period, not
exceeding three Business Days, in order that the required changes in the
Registration Statement, the Prospectus and any other documents or
arrangements may be effected. In the event that neither the Non-defaulting
Underwriters nor the Company shall have arranged for the purchase of the
Defaulted Securities as provided above, then:
(a) if the Defaulted Securities do not exceed 10% of the
Securities that the Non-defaulting Underwriters have otherwise agreed
to purchase, the Non-defaulting Underwriters shall be obligated to
purchase and pay for the respective amounts of the Securities that
they have severally agreed to purchase hereunder and, in addition, to
purchase and pay for (in proportion to their respective obligations
hereunder except as may be otherwise determined by the Non-defaulting
Underwriters) the Defaulted Securities; or
(b) if the Defaulted Securities exceed 10% of the Securities
that the Non-defaulting Underwriters have otherwise agreed to
purchase, this Agreement shall terminate.
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Termination of this Agreement pursuant to this Section 4
shall not relieve any of the Defaulting Underwriters from liability in
respect of its obligations under this Agreement, but shall be without
liability on the part of the Company and the Non-defaulting Underwriters;
provided, however, that such termination shall not affect the payment
obligations set forth in Section 5 hereof.
5. Covenants of the Company. The Company agrees with each of
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the Underwriters that it will:
(a) Promptly deliver to the Representatives a copy of each of
the Registration Statement and all amendments thereto (in each case
including copies of all documents (other than exhibits) incorporated
in the Prospectus by reference and all exhibits filed therewith),
either signed or certified by an officer of the Company, and including
a copy of each consent and opinion included therein or filed as an
exhibit thereto, either signed or certified by an officer of the
Company, and as many unsigned copies of the Registration Statement and
such amendments, as the Representatives may reasonably request. The
Company also will deliver to the Representatives as soon as possible
after the date of this Agreement and thereafter from time to time,
during such period of time as a prospectus relating to the Securities
is required to be delivered under the Act, as many copies of the
Prospectus, including any amendments or supplements thereto, as the
Representatives may reasonably request for the purposes of the Act.
(b) Promptly advise the Representatives (i) when any
amendment of the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus and (iii) of the issuance of
any stop order under the Act with respect to the Registration
Statement or the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued,
to secure the prompt removal thereof. The Company will neither file
nor use any amendment or supplement to the Registration Statement or
the Prospectus to which the Representatives or counsel for the
Underwriters shall object.
(c) Pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation and
filing by it of the Registration Statement and the Prospectus,
(ii) the preparation and delivery of this Agreement, (iii) the
corporate and regulatory actions precedent to the issuance and
delivery of the Securities, (iv) the issuance and delivery of the
Securities, (v) the fees and disbursements of the Company's counsel
and accountants, (vi) except as provided in Section 5(d) hereof, the
printing and delivery to the Underwriters of reasonable quantities of
the Registration Statement, the Prospectus and any amendment or
supplement, (vii) the fees and expenses of any transfer agent and
registrar, (viii) the qualification of the Securities for offering and
sale under state securities laws, including the fees, not to exceed
$5,000, and disbursements of counsel for the Underwriters in
connection with such qualification and blue sky surveys relating
thereto, (ix) the fees and expenses in connection with the listing of
the Securities on the NYSE and the Chicago Stock Exchange and (x) the
filing fees incident to any required review by the NASD of the terms
of the sale of the Securities.
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(d) During such period of time (not exceeding nine months)
after the effective date of the Registration Statement as a prospectus
relating to the Securities is required to be delivered under the Act,
if (i) any event shall occur as a result of which it is necessary, in
the opinion of the Company and its counsel or the Representatives and
counsel for the Underwriters, to amend or supplement the Prospectus in
order to make the Prospectus not misleading, in the light of then
existing circumstances, or (ii) it shall be necessary to amend or
supplement the Registration Statement or the Prospectus to comply with
the Act or the Regulations or the Exchange Act or the Exchange Act
Regulations, forthwith, at its expense, prepare and furnish to the
Representatives a reasonable number of copies of a supplement or an
amendment to the Prospectus that will supplement or amend the
Prospectus so that as so supplemented or amended it will not contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of then existing circumstances, not misleading or it will comply with
the Act or the Regulations or the Exchange Act or the Exchange Act
Regulations. In case any of the Underwriters shall be required to
deliver a prospectus relating to the Securities after the expiration
of nine months from the date of this Agreement, the Company, upon the
request of the Representatives, will furnish to the Underwriters, at
the expense of the Underwriters, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to
the Prospectus, complying with Section 10(a) of the Act.
(e) Make generally available to its security holders, as soon
as practicable, an earning statement (which need not be audited)
covering a period of 12 months beginning on the first day of the
Company's fiscal quarter next succeeding the effective date of the
Registration Statement that will satisfy the provisions of Section
11(a) of the Act (including Rule 158 of the Regulations).
(f) Furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may reasonably designate, and
file and make such statements or reports as are or may be required by
the laws of such jurisdictions; provided, however, that the Company
shall not be required to qualify as a foreign corporation or dealer in
securities, or to file any consents to service of process under the
laws of any jurisdiction.
(g) Except for sales of Common Stock pursuant to its
shareholder and employee plans (including, without limitation, the
Company's Dividend Reinvestment and Stock Purchase Plan), during the
period beginning on the date of this Agreement and continuing to and
including the 120th day following the Time of Delivery, not sell,
offer to sell, grant any option for the sale of, or otherwise dispose
of, any Common Stock or any security convertible into Common Stock
without the prior consent of the Representatives.
All fees and disbursements of counsel for the Underwriters
(exclusive of fees and expenses of such counsel that are to be paid by the
Company as set forth in clause (viii) of Section 5(c) hereof) shall be paid
by the Underwriters; provided, however, that if this Agreement shall be
terminated in accordance with the provisions of Section 6, 7, 8 or 10
hereof, the Company shall reimburse the Underwriters for their out-of-pocket
costs and expenses, including
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the reasonable fees and disbursements of counsel for the Underwriters. The
Company shall not be required to pay any amount for any expenses of the
Underwriters except as provided in the preceding sentence. The Company
shall not in any event be liable to any of the Underwriters for damages on
account of the loss of anticipated profits.
6. Conditions of Obligations of the Underwriters to Purchase
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the Firm Shares. The several obligations of the Underwriters to purchase
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and pay for the Firm Shares shall be subject to the accuracy of the
representations and warranties of the Company set forth in Section 1 hereof
as of the date hereof, to the accuracy of the statements of officers of the
Company made in any certificate given pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder to be performed
at or prior to the Time of Delivery, and to the following additional
conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Time of Delivery and
no order of the Commission directed to the adequacy or accuracy of any
document incorporated by reference in the Prospectus shall be in
effect at such date; no proceedings for any such purpose shall be
pending before, or threatened by, the Commission at the Time of
Delivery; if the Completed Prospectus is required to be filed with the
Commission pursuant to Rule 424(b) of the Regulations, the Completed
Prospectus shall have been filed in the manner and within the time
period required by Rule 424(b) of the Regulations and the Company
shall have provided evidence reasonably satisfactory to the
Representatives thereof; and the Representatives shall have received a
certificate dated the Time of Delivery and signed by an executive
officer of the Company to the effect that no such order is in effect
and that no proceedings for any such purpose are pending before, or to
the knowledge of the Company threatened by, the Commission; (ii) there
shall not have been any change in the matters described in the letter
furnished pursuant to Section 6(d) hereof the effect of which would,
in the opinion of the Representatives, materially and adversely affect
the market for the Firm Shares; (iii) there shall not have been, since
the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a
whole; and (iv) the Company and its subsidiaries shall not have any
liabilities or obligations, direct or contingent (whether or not in
the ordinary course of business), that are material to the Company and
its subsidiaries taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(b) At the Time of Delivery, there shall be in full force and
effect an order of the MPSC authorizing the issuance and sale of the
Securities on the terms and conditions herein set forth, and
containing no provision unacceptable to the Representatives by reason
of the fact that it is materially adverse to the Company (it being
understood that no order in effect on the date hereof contains any
such unacceptable provision).
(c) At the Time of Delivery, the Representatives shall have
received from Gerald T. McNeive, Jr., Esq., Vice President and
Associate General Counsel of the Company,
-10-
and Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters,
opinions, dated the Time of Delivery, in substantially the form and
substance prescribed in Exhibits A and B, respectively, hereto.
(d) At the date of this Agreement, Deloitte & Touche LLP
shall have furnished to the Representatives a letter, dated the date
of this Agreement, to the effect that:
(i) they are independent public accountants with
respect to the Company within the meaning of the Act and the
Regulations;
(ii) in their opinion, the consolidated financial
statements examined by them and incorporated by reference in
the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the Regulations and the Exchange Act and the Exchange Act
Regulations;
(iii) on the basis of limited procedures, not
constituting an examination made in accordance with generally
accepted auditing standards, including a reading of the
unaudited consolidated financial information incorporated by
reference in the Prospectus, the latest available interim
financial statements of the Company, if any, a reading of the
minute books of the shareholders and the Board of Directors
of the Company since the close of the Company's most recent
fiscal year through a specified date not more than five days
prior to the date of such letter, inquiries of officials of
the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused
them to believe that (A) (1) any material modifications
should be made to the unaudited consolidated financial
statements incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles or (2) the unaudited consolidated financial
statements incorporated by reference in the Prospectus do not
comply with the applicable accounting requirements of the Act
or the Exchange Act as they apply to Form 10-Q and the
Regulations or the Exchange Act Regulations; (B) at the date
of the latest available interim balance sheet of the Company
and at a subsequent specified date not more than five days
prior to the date of such letter, there has been any change
in the capital stock, or any increase in the long-term debt,
or any decrease in net assets, in each case of the Company
and as compared with amounts shown in the balance sheet as of
the date of the latest financial statements incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases that the Registration Statement
discloses have occurred or may occur, that were occasioned by
the declaration of dividends or that are described in such
letter identifying the same and specifying the amount thereof
(in which case such letter shall be accompanied by an
explanation of the Company as to the significance thereof
unless such explanation is not deemed necessary by the
Representatives); or (C) for the twelve months ended as of
the date of the latest unaudited financial statements are
available, there were any decreases, as compared with the
comparable period of the preceding year, in the Company's
operating revenues, net income and earnings available for
common stock, except in each case for decreases that
-11-
the Registration Statement discloses have occurred or may
occur, that were occasioned by the declaration of dividends
or that are described in such letter identifying the same and
specifying the amount thereof (in which case such letter
shall be accompanied by an explanation of the Company as to
the significance thereof unless such explanation is not
deemed necessary by the Representatives); and
(iv) they have performed certain other specified
procedures with respect to certain amounts and percentages
set forth in the Registration Statement or in the documents
incorporated by reference in the Prospectus, as have been
requested by the Representatives or counsel for the
Underwriters and approved by the Company, and have found them
to be in agreement with the records of the Company and the
computations to be arithmetically correct.
(e) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished to the Representatives a letter, dated the Time of Delivery,
to the effect that the statements set forth in the letter furnished
pursuant to Section 6(d) hereof are reaffirmed, except that the
specified date referred to therein shall be a date not more than five
days prior to the Time of Delivery.
(f) At the Time of Delivery, the Representatives shall have
received a certificate, dated the Time of Delivery and signed by an
executive officer of the Company, to the effect that (i) the Company's
representations and warranties set forth in Section 1 hereof are true
and correct at and as of the Time of Delivery with the same effect as
if made at and as of the Time of Delivery; provided, however, that (A)
if any post-effective amendment to the Registration Statement shall
have been filed subsequent to the date hereof, the Registration
Statement referred to in Section 1(b) hereof shall be deemed, for the
purposes of such certificate, to include such amendment and (B) if the
Completed Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) of the Regulations, the Prospectus referred to
in Sections 1(c), (e), (f), (g) and (i) hereof shall be deemed, for
the purposes of such certificate, to be the Completed Prospectus, (ii)
the Company shall have performed all of its obligations hereunder to
be performed at or prior to the Time of Delivery, (iii) if the Company
shall have been required to file the Completed Prospectus with the
Commission pursuant to Rule 424(b) of the Regulations, the Company
shall have done so and (iv) the order described in Section 6(b) hereof
shall be in full force and effect.
(g) All legal proceedings to be taken in connection with the
issuance and sale of the Firm Shares shall be reasonably satisfactory
in form and substance to counsel for the Underwriters.
(h) Subsequent to the date of this Agreement, there shall not
have occurred (i) any material change in or affecting the business,
properties, financial condition or results of operations of the
Company and its subsidiaries taken as a whole not contemplated by the
Prospectus or any amendment or supplement thereto (including the
documents incorporated by reference therein at the date thereof) that,
in the opinion of the Representatives, would materially and adversely
affect the market for the Firm Shares
-12-
or (ii) any event or development relating to or involving the Company
or any officer or director of the Company that, in the opinion of the
Company and its counsel or the Representatives and counsel for the
Underwriters, requires the making of any addition to or change in the
Prospectus or any amendment or supplement thereto in order to state a
material fact required by the Act to be stated therein or necessary
in order to make the statements therein not misleading, if amending
or supplementing the Prospectus to reflect such event or development
would, in the opinion of the Representatives, adversely affect the
market for the Firm Shares.
(i) The Firm Shares shall have been listed (subject to
official notice of issuance) on the NYSE.
In case any of the conditions specified above in this Section
6 shall not have been fulfilled at the Time of Delivery, this Agreement may
be terminated by the Representatives upon notice thereof to the Company at
any time at or prior to the Time of Delivery. Any such termination shall be
without liability of any party to any other party, except as otherwise
provided in Section 5 hereof and except that the provisions of Section 9
hereof shall survive any such termination.
7. Conditions to Obligations of the Underwriters to Purchase
---------------------------------------------------------
Option Shares. The several obligations of the Underwriters to purchase and
--------------
pay for any Option Shares shall be subject to the accuracy of the
representations and warranties of the Company set forth in Section 1 hereof
as of the date hereof, to the accuracy of the statements of the officers of
the Company made in any certificate given pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder to be
performed at or prior to the Option Shares Time of Delivery with respect to
such Option Shares, and to the following additional conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at such Option Shares Time
of Delivery and no order of the Commission directed to the adequacy or
accuracy of any document incorporated by reference in the Prospectus
shall be in effect at such Option Shares Time of Delivery; no
proceedings for any such purpose shall be pending before, or
threatened by, the Commission on such date; if the Completed
Prospectus, or any supplement thereto or to the Prospectus, is
required to be filed with the Commission pursuant to Rule 424(b) of
the Regulations, the Completed Prospectus, or any such supplement,
shall have been filed in the manner and within the time period
required by Rule 424(b) of the Regulations and the Company shall have
provided evidence reasonably satisfactory to the Representatives
thereof; and the Representatives shall have received a certificate
dated such Option Shares Time of Delivery and signed by an executive
officer of the Company to the effect that no such order is in effect
and that no proceedings for any such purpose are pending before, or to
the knowledge of the Company threatened by, the Commission; (ii) there
shall not have been any change in the matters described in the letter
furnished pursuant to Section 6(d) hereof the effect of which would,
in the opinion of the Representatives, materially and adversely affect
the market for such Option Shares; (iii) there shall not have been,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the
Registration Statement and the Prospectus (or any amendment
-13-
or supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a
whole; and (iv) the Company and its subsidiaries shall not have any
liabilities or obligations, direct or contingent (whether or not in
the ordinary course of business), that are material to the Company and
its subsidiaries taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(b) At such Option Shares Time of Delivery, there shall be in
full force and effect an order of the MPSC authorizing the issuance
and sale of the Securities on the terms and conditions herein set
forth, and containing no provision unacceptable to the Representatives
by reason of the fact that it is materially adverse to the Company (it
being understood that no order in effect on the date hereof contains
any such unacceptable provision).
(c) At such Option Shares Time of Delivery, the
Representatives shall have received from Gerald T. McNeive, Jr., Esq.,
Vice President and Associate General Counsel of the Company, and
Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters,
opinions, dated such Option Shares Time of Delivery, with respect to
such Option Shares in substantially the form and substance prescribed
in Exhibits A and B, respectively, hereto.
(d) At such Option Shares Time of Delivery, Deloitte & Touche
LLP shall have furnished to the Representatives a letter, dated such
Option Shares Time of Delivery, to the effect that the statements set
forth in the letter furnished pursuant to Section 6(d) hereof are
reaffirmed, except that the specified date referred to therein shall
be a date not more than five days prior to such Option Shares Time of
Delivery.
(e) At such Option Shares Time of Delivery, the
Representatives shall have received a certificate, dated such Option
Shares Time of Delivery and signed by an executive officer of the
Company, to the effect that (i) the Company's representations and
warranties set forth in Section 1 hereof are true and correct at and
as of such Option Shares Time of Delivery with the same effect as if
made at and as of such Option Shares Time of Delivery; provided,
however, that (A) if any post-effective amendment to the Registration
Statement shall have been filed subsequent to the date hereof, the
Registration Statement referred to in Section 1(b) hereof shall be
deemed, for the purposes of such certificate, to include such
amendment and (B) if the Completed Prospectus shall have been filed
with the Commission pursuant to Rule 424 of the Regulations, the
Prospectus referred to in Sections 1(c), (e), (f), (g) and (i) hereof
shall be deemed, for the purposes of such certificate, to be the
Completed Prospectus, (ii) the Company shall have performed all of its
obligations hereunder to be performed at or prior to such Option
Shares Time of Delivery, (iii) if the Company shall have been required
to file the Completed Prospectus with the Commission pursuant to Rule
424(b) of the Regulations, the Company shall have done so and (iv) the
order described in Section 7(b) hereof shall be in full force and
effect.
-14-
(f) All legal proceedings to be taken in connection with the
issuance and sale of the Securities shall be reasonably satisfactory
in form and substance to counsel for the Underwriters.
(g) Subsequent to the date of this Agreement, there shall not
have occurred (i) any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a
whole not contemplated by the Prospectus or any amendment or
supplement thereto (including the documents incorporated therein by
reference at the date thereof) that, in the opinion of the
Representatives, would materially, adversely affect the market for
the Securities or (ii) any event or development relating to or
involving the Company or any officer or director of the Company that,
in the opinion of the Company and its counsel or the Representatives
and counsel for the Underwriters, requires the making of any addition
to or change in the Prospectus or any amendment or supplement thereto
in order to state a material fact required by the Act to be stated
therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in the opinion of the
Representatives, adversely affect the market for the Securities.
(h) Such Option Shares shall have been listed (subject to
official notice of issuance) on the NYSE.
In case any of the conditions specified above in this Section
7 shall not have been fulfilled at such Option Shares Time of Delivery, this
Agreement may be terminated by the Representatives upon notice thereof to
the Company at any time at or prior to such Option Shares Time of Delivery.
Any such termination shall be without liability of any party to any other
party, except as otherwise provided in Section 5 hereof and except that the
provisions of Section 9 hereof shall survive any such termination.
8. Conditions of Company's Obligation. The obligation of the
----------------------------------
Company to deliver the Firm Shares at the Time of Delivery and any Option
Shares at the Option Shares Time of Delivery with respect to such Option
Shares shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Time of Delivery or
such Option Shares Time of Delivery, as the case may be, and no order
of the Commission directed to the adequacy or accuracy of any document
incorporated by reference in the Prospectus shall be in effect at such
date; and no proceedings for any such purpose shall be pending before,
or threatened by, the Commission at the Time of Delivery or such
Option Shares Time of Delivery, as the case may be.
(b) At the Time of Delivery or such Option Shares Time of
Delivery, as the case may be, there shall be in full force and effect
an order of the MPSC authorizing the issuance and sale of the
Securities on the terms and conditions herein set forth, and
containing no provisions unacceptable to the Company by reason of the
fact that it is materially adverse to the Company (it being understood
that no order in effect on the date hereof contains any such
unacceptable provision).
-15-
In case any of the conditions specified above in this Section
8 shall not have been fulfilled at the Time of Delivery or such Option
Shares Time of Delivery, as the case may be, this Agreement may be
terminated by the Company, upon notice thereof to the Representatives. Any
such termination shall be without liability of any party to any other party,
except as otherwise provided in Section 5 hereof.
9. Indemnification; Contribution.
------------------------------
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any of the
Underwriters within the meaning of Section 15 of the Act against (i)
any and all losses, claims, damages, liabilities and expenses
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any
information deemed to be a part thereof pursuant to Rule 430A(b) of
the Regulations, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus relating to the Securities or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; (ii) any
and all losses, claims, damages, liabilities and expenses whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and (iii) any and
all expense whatsoever, as incurred (including, subject to Section
9(c) hereof, the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above; provided, however,
that the indemnity agreement contained in this Section 9(a) shall not
(A) apply to any such losses, claims, damages, liabilities or expenses
to the extent arising out of any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, made in
reliance upon and in conformity with information furnished in writing
to the Company, through the Representatives by any Underwriter,
expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus relating to the Securities or
the Prospectus (or any amendment or supplement thereto) or (B) inure
to the benefit of any Underwriter or any person who controls such
Underwriter within the meaning of Section 15 of the Act on account of
any such losses, claims, damages, liabilities or expenses arising from
the sale of any of the Securities to any person if any amendment or
supplement to the Prospectus (excluding any document incorporated or
deemed to be incorporated by reference therein), furnished to the
Representatives by the Company prior to the sending or giving of
written confirmation of such sale to such person, was not sent or
given by or on behalf of such Underwriter to such person with
-16-
or prior to such written confirmation and any such untrue statement or
alleged untrue statement, or any such omission or alleged omission,
was corrected in such Prospectus.
(b) Each of the Underwriters, severally, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who
shall have signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Act
against any and all losses, claims, damages, liabilities and expenses
described in Section 9(a) hereof, as incurred, but only with respect
to the untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus relating to the Securities or
the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company, through the Representatives by such Underwriter, expressly
for use in connection with the Registration Statement (or any
amendment thereto) or any preliminary prospectus relating to the
Securities or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable 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 on account of this indemnity agreement except to the
extent that such indemnifying party has been prejudiced in any
material respect by such failure or from any liability that such
indemnifying party may have to such indemnified party otherwise than
on account of this indemnity agreement. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party) and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under Section 9(a) or
(b) hereof for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (including local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in
Section 9(a) or (b) hereof is for any reason held to be unenforceable
by the indemnified parties although applicable in accordance with its
terms, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the
nature contemplated by such indemnity agreement incurred by the
Company and one or more of the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing
on
-17-
the cover page of the Prospectus bears to the initial public offering
price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section
9(d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter, and each director of the Company,
each officer of the Company who shall have signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act shall have the same rights to
contribution as the Company.
10. Termination.
------------
(a) The Representative may terminate this Agreement at any
time at or prior to the Time of Delivery, or rescind the exercise of
the Option by the Underwriters at any time prior to an Option Shares
Time of Delivery, by notice to the Company, if prior to the Time of
Delivery or such Option Shares Time of Delivery, as the case may be,
(i) there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the business or the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business, or (ii) there has occurred any material adverse change in
the financial markets in the United States or any outbreak of
hostilities or escalation of any existing hostilities or calamity or
crisis, the effect of which is such as to make it, in the reasonable
judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or
(iii) trading in the Common Stock has been suspended by the
Commission, or trading generally in securities on the NYSE or the
American Stock Exchange has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of the NYSE or the American
Stock Exchange or by order of the Commission or any other governmental
authority, or a banking moratorium has been declared by either
Federal, New York or Missouri authorities.
(b) Notwithstanding any termination of this Agreement
pursuant to this Section 10, such termination will be without
liability of any party to any other party hereunder except for the
payment obligations set forth in Section 5 hereof and except that the
provisions of Section 9 hereof shall remain in effect.
11. Notices. All statements, requests, notices and
--------
agreements hereunder shall be in writing or by telephone if confirmed in
writing within 24 hours and, if to the Underwriters, shall be sufficient in
all respects if delivered or sent by registered mail to the Representatives
at the address given on the last page hereof; and, if to the Company, shall
be sufficient in all respects if delivered or sent by registered mail to the
Company, c/o Donald L. Godiner, Esq., Senior Vice President, General Counsel
and Secretary, Laclede Gas Company, 720 Olive Street, St. Louis, Missouri
63101; provided, however, that any notice to any of the Underwriters
pursuant to Section 9(c) hereof shall be delivered or sent by registered
mail to such party at its principal executive offices.
-18-
12. Information for Use in Prospectuses. The information
------------------------------------
with respect to the price to the public of the Securities to be set forth
on, and the information to be set forth in the last paragraph of, the cover
page of, and the information to be set forth in the second paragraph under
the table under "Underwriting" in, the Prospectus shall be deemed to have
been furnished in writing to the Company through the Representatives by or
on behalf of the Underwriters specifically for use therein.
13. Representations and Warranties of Representatives. Each
--------------------------------------------------
of the Representatives represents and warrants to the Company that it has
full power and authority (a) to enter into this Agreement on behalf of each
of the Underwriters listed in Schedule I hereto and (b) to act on behalf of
each of the Underwriters with respect to the performance of this Agreement.
In all dealings hereunder, the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of all of the
Underwriters made or given either by all of the Representatives jointly or
by any of the Representatives individually.
14. Miscellaneous.
--------------
(a) This Agreement shall be binding upon the Underwriters and
the Company and shall inure solely to the benefit of the Underwriters,
the Company and, to the extent provided in Section 9 hereof, the
directors and officers of the Company and each person who controls the
Company or any of the Underwriters, and in each case their respective
heirs, executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any of the
Underwriters shall be deemed a successor or assign by reason merely of
such purchase.
(b) This Agreement shall be construed in accordance with the
laws of the State of New York applicable to contracts made and to be
performed in the State of New York.
(c) This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-19-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the counterparts hereof
enclosed, and upon the acceptance hereof by you, this letter and such
acceptance hereof shall constitute a binding agreement between the several
Underwriters and the Company.
Very truly yours,
LACLEDE GAS COMPANY
By: R. J. Carroll
------------------------
Name: R. J. Carroll
Title: Senior Vice President-Finance
and Chief Financial Officer
Accepted at New York, New York
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC.
For themselves and as Representatives of
the other Underwriters named in Schedule I
to this Underwriting Agreement.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By Robert N. Hoglund
________________________________________
Authorized Signatory
Address:Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
-20-
SCHEDULE I
Number of Shares
to be Purchased
----------------
Underwriters
------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 288,668
A.G. Edwards & Sons, Inc. 288,666
Smith Barney Inc. 288,666
Dean Witter Reynolds Inc. 64,000
Edward D. Jones & Co. 64,000
Oppenheimer & Co., Inc. 64,000
PaineWebber Incorporated 64,000
Prudential Securities Incorporated 64,000
Stifel, Nicolaus & Company, Incorporated 64,000
Advest, Inc. 30,000
Dain Bosworth Incorporated 30,000
Fahnestock & Co. Inc. 30,000
Kemper Securities, Inc. 30,000
Piper Jaffray Inc. 30,000
Principal Financial Securities, Inc. 30,000
Rodman & Renshaw, Inc. 30,000
George K. Baum & Company 15,000
Burns, Pauli & Co., Inc. 15,000
Huntleigh Securities Corporation 15,000
Pauli & Company Incorporated 15,000
Pryor, McClendon, Counts & Co., Inc. 15,000
Smith, Moore & Co. 15,000
---------
Total 1,550,000
=========
Exhibit A
[Opinion of Gerald T. McNeive, Jr., Esq.]
[Letterhead of the Company]
May 22, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC.
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement referred
to below (the "Underwriters")
c/o Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
I am Vice President and Associate General Counsel of Laclede
Gas Company (the "Company") and have acted in that capacity in connection
with the issuance and sale by the Company pursuant to the Underwriting
Agreement dated May 15, 1995 between the Company and the Underwriters (the
"Underwriting Agreement") of 1,550,000 shares of the Company's Common Stock,
par value $1 per share (the "Shares"). The terms "Registration Statement"
and "Prospectus" as used herein have the same meanings as when used in the
Underwriting Agreement.
I am familiar with the Articles of Incorporation, as amended,
and the By-Laws, as currently in effect, of the Company (the "Articles" and
the "By-Laws," respectively) and the records of various corporate and other
proceedings, including the actions taken by the Company's Board of Directors
relating to the authorization, issuance and sale of the Shares. I have
participated in the preparation of or reviewed (a) the Underwriting
Agreement; (b) the
Registration Statement and the Prospectus; and (c) the proceedings before
the Missouri Public Service Commission (the "MPSC") for authority to issue
and sell the Shares and the order dated April 26, 1995 for authority to
issue and sell the Shares entered by the MPSC in respect thereto.
I have examined the Annual Report on Form 10-K of the Company
for the fiscal year ended September 30, 1994, the Quarterly Reports on Form
10-Q of the Company for the quarterly periods ended December 31, 1994 and
March 31, 1995 and the Form 8-A Registration Statement of the Company dated
April 7, 1986 (the "Exchange Act Documents"), each as filed with the
Securities and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in the Prospectus.
I have examined a copy of an order dated May 15, 1995, from the
Commission to the Company relating to the effectiveness of the Registration
Statement under the Securities Act of 1933, as amended (the "Securities
Act"). I have also examined such other documents and satisfied myself as to
such other matters as I have deemed necessary to render this opinion. In
the course of such examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents
of all documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. I have also relied
upon information submitted to me by certain officers of the Company with
respect to the existence or non-existence of certain facts that form the
basis for the opinions set forth herein. Although I have not conducted any
independent investigations of the accuracy of various of the matters covered
by such information supplied by officers of the Company, I have no reason to
believe that any of the matters covered thereby are inaccurate. I have also
relied on certain documents, instruments and certificates of public
officials. I have not examined the certificates for the Shares, except a
specimen thereof, and have relied upon a certificate of the transfer agent
and registrar for the Shares as to the issuance, registration and
countersignature thereof. With respect to the matters relating to the
outstanding shares of capital stock of the Company (other than the Shares)
expressed in paragraph 3. below, I have relied upon the opinion of Thompson
Mitchell Douglas & Neill, dated July 8, 1960, as to such counsel's opinion
with respect to the due and valid authorization and issuance of, and the
fully paid and non-assessable nature of, any such shares that were issued on
or prior to the date of such opinion. Upon the basis of my familiarity with
the foregoing and with the Company's properties and affairs generally, and
as limited by the qualifications and limitations stated herein, I am of the
opinion that:
1. Each of the Company, Laclede Pipeline Company and Laclede
Energy Resources, Inc. is a corporation duly organized and validly
existing in good standing under the laws of the State of Missouri.
2. The Company is a public utility corporation, is duly
authorized by the Articles to conduct the utility business that it is
described in the Prospectus as conducting, and, by virtue of its
possession of valid and subsisting licenses, franchises and permits,
and its compliance with the laws of the State of Missouri, is duly
authorized to conduct such business in that State, and the Company is
legally qualified to conduct in Louisiana, Oklahoma and Texas the
businesses in which it is engaged in those states. In this regard, it
should be noted that the Company is presently seeking to renew its
franchises in
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Florissant, Missouri and University City, Missouri, which expired in
1992 and 1995, respectively.
3. All of the outstanding shares of capital stock of the
Company (other than the Shares) have been duly and validly authorized
and issued and are fully paid and non-assessable.
4. The Shares have been duly and validly authorized and, when
the Shares shall have been delivered against payment therefor as
provided in the Underwriting Agreement, they will have been duly and
validly issued and will be fully paid and non-assessable and entitled
to the rights set forth in the Articles and the Rights Agreement dated
as of April 17, 1986 between the Company and The Boatmen's National
Bank of St. Louis, as rights agent thereunder; and, other than as set
forth in the Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, the Shares pursuant to the Articles or the By-
Laws, or other agreement or instrument known to me to which the
Company is a party or by which it is bound or to which any of the
property of the Company is subject.
5. The statements made in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute
summaries of the terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
6. The Shares have been listed (subject to official notice of
issuance) on the New York Stock Exchange.
7. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
8. The Registration Statement has become and is effective
under the Securities Act; and, to the best of my knowledge, no
proceedings for a stop order with respect thereto are pending or
threatened under Section 8(d) of the Securities Act.
9. The MPSC has issued an order authorizing the issuance and
sale by the Company of the Shares; the issuance and sale of the Shares
in accordance with the Underwriting Agreement are in conformity with
the terms of such order; and no further approval, authorization,
consent or other order of any public board or body (other than in
connection or in compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required for the
issuance and sale of the Shares on the terms and conditions set forth
in the Underwriting Agreement.
10. There are no legal, governmental or administrative
proceedings pending to which the Company is a party or of which any
property of the Company is the subject, other than as set forth in the
Prospectus and other than proceedings incident to the kind of business
conducted by the Company, the outcome of which, singly or in the
aggregate, might reasonably be expected to have a materially adverse
effect on the financial position, stockholders' equity or results of
operations of the Company; and, to the best of my
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knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
11. The consummation of the transactions contemplated in the
Underwriting Agreement and the fulfillment of the terms thereof will
not result in a breach of any of the terms or provisions of, or
constitute a default under, (i) to the best of my knowledge, any
indenture, mortgage, deed of trust or other agreement or instrument
known to me to which the Company is a party or by which it is bound or
to which any of the property of the Company is subject, (ii) the
Articles or the Bylaws or (iii) any order, rule or regulation of any
court or other governmental body having jurisdiction over the Company
or any of its property, or any statute, in each case of the United
States of America or the State of Missouri, or, to the best of my
knowledge, any order, rule or regulation of any other court or other
governmental body having jurisdiction over the Company or any of its
property or any other statute.
In passing upon the form of the Registration Statement and the
form of the Prospectus, I necessarily assume the correctness and
completeness of the statements made by the Company and the information
included or incorporated by reference in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as such
statements relate to me and as set forth in paragraph 5. above. In the
course of the preparation of the Registration Statement and the Prospectus,
I participated in conferences with certain of the Company's officers and
employees, with representatives of Deloitte & Touche LLP, the independent
accountants for the Company, with your representatives and with counsel for
the Underwriters. Based on my examination of the Registration Statement and
the Prospectus, and my investigations made in connection with the
preparation of the Registration Statement and the Prospectus and my
participation in the conferences referred to above, (i) I am of the opinion
that the Registration Statement, as of the date it was declared effective by
the Commission, and the Prospectus, as of the date it was filed with the
Commission pursuant to Rule 424(b) under the Securities Act, complied as to
form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents complied as to form when filed in all
material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that
in each case I express no opinion with respect to the financial statements
or schedules or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or
the Exchange Act Documents, and (ii) I have no reason to believe that the
Registration Statement, as of the date it was declared effective by the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the Prospectus, as of the
date hereof, includes any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case I express no opinion or belief with
respect to the financial statements or schedules or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents.
A-4
I have examined the portions of the information contained in
the Registration Statement that are stated therein to have been made on my
authority and, upon my review thereof, I believe such information to be
correct.
I am a member of the Bar of the State of Missouri and, except
with respect to the matters expressed in paragraphs 2., 9., 10. and 11.
above, I do not express any opinion herein as to any matters governed by any
laws other than the laws of the State of Missouri and the Federal laws of
the United States of America.
I am also delivering this opinion to Winthrop, Stimson, Putnam
& Roberts, who is entitled to rely upon this opinion to the same extent as
if such opinion were addressed to such firm. This opinion is rendered to
you and Winthrop, Stimson, Putnam & Roberts in connection with the above-
described transaction. This opinion may not be relied upon by you or
Winthrop, Stimson, Putnam & Roberts for any other purpose, or relied upon by
or furnished to any other person, firm or corporation (other than the
Underwriters), without my prior written consent.
This opinion speaks only as of its date. I have no obligation
to advise the Underwriters or you, as their Representatives, of changes in
law or fact that occur after the date of this opinion, even where such
change may affect the legal analysis, a legal conclusion or an informational
confirmation in this opinion.
Very truly yours,
A-5
Exhibit B
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
May 22, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC.
As Representatives of the several
Underwriters named in Schedule I
to the Underwriting Agreement
referred to below (the "Underwriters")
c/o Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance
and sale by Laclede Gas Company (the "Company") of 1,550,000 shares of the
Company's Common Stock, par value $1 per share (the "Shares"), pursuant to
the Underwriting Agreement dated May 15, 1995 between the Underwriters and
the Company (the "Underwriting Agreement"). The terms "Registration
Statement" and "Prospectus" as used herein have the same meanings as when
used in the Underwriting Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), incorporates by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended September 30, 1994, the Quarterly
Reports on Form 10-Q of the Company for the quarterly periods ended December
31, 1994 and March 31, 1995 and the Form 8-A Registration Statement of the
Company dated April 7, 1986 (the "Exchange Act Documents"), each as filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificates for the
Shares, of which we have examined a specimen, and have relied upon a
certificate of the transfer agent and registrar for the Shares as to the
issuance, registration and countersignature thereof) and upon originals or
copies, certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
With respect to legal matters governed by the laws of the State
of Missouri, we understand that you are relying upon the opinion of Gerald
T. McNeive, Jr., Esq., Vice President and Associate General Counsel of the
Company, of even date, addressed to you. We believe that such opinion is
satisfactory in form and that you are justified in relying thereon and we,
on our part, have relied solely on said opinion as to such matters. We do
not pass upon legal matters regarding the incorporation of the Company or
its qualification to do business in any jurisdiction, as to which we
understand you are relying upon the aforesaid opinion of Mr. McNeive.
Based upon the foregoing and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Shares have been duly authorized by the Company and,
upon payment and delivery in accordance with the Underwriting
Agreement, will be validly issued, fully paid and nonassessable.
2. The statements made in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute
summaries of the terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects.
3. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
B-2
4. The Registration Statement has become and is effective
under the Securities Act; and, to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or
threatened under Section 8(d) of the Securities Act.
5. No approval, authorization, consent or other order of any
governmental agency or body of the United States of America or the
State of New York is legally required for the issuance and sale by the
Company of the Shares on the terms and conditions set forth in the
Underwriting Agreement (other than the order of the Commission
declaring the Registration Statement effective and except that we
express no opinion as to any such approval, authorization, consent or
other order as may be required under the provisions of the securities
or blue sky laws of the State of New York in connection with the
purchase and distribution of the Shares by the Underwriters).
In passing upon the form of the Registration Statement and the
form of the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and the information
included or incorporated by reference in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph 2. above. In the
course of the preparation by the Company of the Registration Statement and
the Prospectus (excluding the Exchange Act Documents), we participated in
conferences with certain of its officers and employees, with counsel for the
Company, with representatives of Deloitte & Touche LLP, the independent
accountants who examined certain of the Exchange Act Documents, and with
your representatives. We did not prepare the Exchange Act Documents. Based
on our examination of the Registration Statement, the Prospectus and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement and the Prospectus (excluding the
Exchange Act Documents) and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement, as of the
date it was declared effective by the Commission, and the Prospectus, as of
the date it was filed with the Commission pursuant to Rule 424(b) under the
Securities Act, complied as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder and that the Exchange Act Documents complied as
to form when filed in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion with respect to
the financial statements or schedules or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents, and (ii) we have no reason to
believe that the Registration Statement, as of the date it was declared
effective by the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus, as of the date hereof, includes any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no
opinion or belief with respect to the financial statements or schedules or
other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents.
B-3
We are members of the Bar of the State of New York and we do
not express any opinion herein as to any matters governed by any laws other
than the laws of the State of New York, the Federal laws of the United
States of America and, to the extent set forth herein, the laws of the State
of Missouri.
This opinion is rendered to you in connection with the above-
described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person, firm or
corporation (other than the Underwriters), without our prior written
consent.
Very truly yours,
B-4