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Exhibit 1.1
PIEDMONT NATURAL GAS COMPANY, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
__________ __, 200_
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As [Representative(s) of] the Several Underwriters,
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Gentlemen:
Piedmont Natural Gas Company, Inc., a North Carolina
corporation (the "Company"), confirms its agreement with the several
Underwriters listed in Schedule A hereto (the "Underwriters", which term may
refer to a single Underwriter if only one is listed in Schedule A) as follows:
1. Description Of Securities. The Company proposes to issue
and sell to the several Underwriters securities of the title, amount and
particular terms set forth or referred to in Schedule B hereto ("Securities").
The Securities are to be issued under the Indenture, dated as of April 1, 1993,
between Piedmont Natural Gas Company, Inc., a New York corporation (the
"Predecessor Company"), and Citibank, N.A., as trustee (the "Trustee"), as
amended by the First Supplemental Indenture, dated as of February 25, 1994,
among the Company, the Predecessor Company and the Trustee (collectively, the
"Indenture").
2. Representations And Warranties Of The Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). A registration
statement on such form (with the file number set forth in Schedule B hereto)
with respect to the offering and sale of the Securities, including a related
preliminary prospectus, has been prepared by the Company in conformity with the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations ("Rules and Regulations") of the Securities
and Exchange Commission ("Commission") thereunder, filed with the Commission and
become effective. The registration statement and prospectus may have been
amended or supplemented prior to the date of this Agreement; if any such
amendment or supplement
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was made, such amendment or supplement was filed with the Commission, and any
such amendment has become effective. No stop order suspending the effectiveness
of the registration statement has been issued, and no proceeding for that
purpose has been instituted or threatened by the Commission. A prospectus
supplement ("Prospectus Supplement") setting forth the terms of the Securities
and of their sale and distribution has been so prepared and will be filed
pursuant to Rule 424(b) of the Act. The Company has delivered to you and counsel
for the Underwriters copies of the registration statement and prospectus, any
such amendment or supplement, the Prospectus Supplement and all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date of this Agreement (including one fully executed copy of the
registration statement and of each amendment thereto for each of you and for
counsel for the Underwriters). The registration statement, as it may have
heretofore been amended or supplemented is referred to herein as the
"Registration Statement", and the final form of prospectus included in the
Registration Statement, as supplemented by the Prospectus Supplement, is
referred to herein as the "Prospectus". Each form of Prospectus, or Prospectus
and Prospectus Supplement, if any, heretofore made available for use in offering
the Securities is referred to herein as a "Preliminary Prospectus". Any
reference herein to a Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to a
Registration Statement or Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission deemed to
be incorporated by reference therein.
(b) Each part of the Registration Statement, when such part
became or becomes effective, the Preliminary Prospectus on the date of filing
thereof with the Commission, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the Closing
Date (as hereinafter defined), complied or will comply in all material respects
with the requirements of the Act, the Trust Indenture Act, the Exchange Act and
the Rules and Regulations; each part of the Registration Statement, when such
part became or becomes effective, did not or 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; the
Preliminary Prospectus, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the Closing
Date, did not or will not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements in or omissions from any such document
in reliance upon, and in conformity with, written information furnished to the
Company by you, or by any Underwriter through you, specifically for use in the
preparation thereof. The Indenture, including any amendment and supplement
thereto, pursuant to which the Securities will be issued, conforms, or, in the
case of any amendment or supplement filed after the date of this Agreement, will
conform with the requirements of the Trust Indenture Act and the Rules and
Regulations thereunder.
(c) The financial statements of the Company and its
subsidiaries set forth in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its subsidiaries as of the
dates indicated and the results of operations and cash flows for the
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periods therein specified; said financial statements have been prepared in
conformity with generally accepted accounting principles as applied in the
United States consistently applied throughout the periods involved (except as
otherwise stated therein).
(d) The Company and each of its significant subsidiaries
within the meaning of Regulation S-X (individually, a "Subsidiary", and
collectively, the "Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material business; and
all of the outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable, and, except
as otherwise set forth in the Prospectus, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security interest and
any other security interests, claims, liens or encumbrances.
(e) The Indenture and the Securities have been duly
authorized, the Indenture has been duly qualified under the Trust Indenture Act,
executed and delivered and constitutes, and the Securities, when duly executed,
authenticated, issued and delivered as contemplated hereby and by the Indenture,
will constitute, valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization, arrangement or other similar
laws now or hereafter in effect affecting the rights of creditors generally and
general principles of equity and rules of law governing and limiting the
availability of specific performance, injunctive relief and other equitable
remedies (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(f) There is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, there is no statute required to be described in the
Prospectus that is not described as required, and there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit, which is not
described or filed as required, and the description in the Registration
Statement and Prospectus of statutes, legal and governmental proceedings,
contracts and other documents are accurate and fairly present the information
required to be shown.
(g) The Company's authorized equity capitalization is as set
forth in the Prospectus (if contained therein).
(h) The execution, delivery and performance of the Indenture,
of this Agreement and of any Delayed Delivery Contracts (as hereinafter
defined), the issuance and sale of the Securities, the consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with, result in a breach of, or constitute a default under the
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Articles of Incorporation or By-laws of the Company or the terms of any
indenture or other agreement or instrument to which the Company or any of its
subsidiaries is a party or bound, or any statute, rule, order or regulation
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries; and the Company has full power and
authority to authorize, issue and sell the Securities as contemplated by this
Agreement.
(i) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance and
sale of the Securities by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and as may be required under
state securities laws and such other approvals as have been obtained.
(j) This Agreement has been, and any Delayed Delivery
Contracts will be, duly authorized, executed and delivered by the Company.
(k) The Company and its subsidiaries have all necessary
franchises or permits for natural gas operations in all communities now served,
except as set forth in the Registration Statement and except where the failure
to be so authorized by franchise or permit does not materially affect the right
of the Company or such subsidiary to the use of its properties or the conduct of
its business; and the franchises of the Company and its subsidiaries referred to
in the Registration Statement are good and valid except for and subject only to
such defects as may be set forth or referred to in the Registration Statement,
and such others as do not materially affect the right of the Company or such
subsidiary to the use of its properties or the conduct of its business, and said
franchises impose no materially burdensome restrictions.
(l) The Company is not a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(m) No holders of securities of the Company have rights to
registration of such securities under the Registration Statement.
3. Purchase, Sale And Delivery Of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to issue and sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule B hereto,
the amount of Securities set forth opposite the name of such Underwriter in
Schedule A hereto less the reduction for such Underwriter's portion of any
Contract Securities determined as provided below.
If so authorized in Schedule B hereto, the Underwriters may
solicit offers from investors of the types set forth in the Prospectus to
purchase Securities from the Company pursuant to delayed contracts ("Delayed
Delivery Contracts"). Such contracts shall be substantially in the form of
Exhibit I hereto but with such changes therein as the Company may approve.
Securities to be purchased pursuant to Delayed Delivery Contracts are herein
called
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"Contract Securities". When Delayed Delivery Contracts are authorized in
Schedule B, the Company will enter into a Delayed Delivery Contract in each case
where a sale of Contract Securities arranged through you has been approved by
the Company but, except as the Company may otherwise agree, such Delayed
Delivery Contracts must be for at least the minimum amount of Contract
Securities set forth in Schedule B hereto, and the aggregate amount of Contract
Securities may not exceed the amount set forth in such Schedule. The Company
will advise you not later than 10:00 A.M., New York City time, on the third full
business day preceding the Closing Date (or at such later time as you may
otherwise agree) of the sales of Contract Securities that have been so approved.
You and the other Underwriters will not have any responsibility in respect of
the validity or performance of Delayed Delivery Contracts.
The amount of Securities to be purchased by each Underwriter
as set forth in Schedule A hereto shall be reduced by an amount that shall bear
the same proportion to the total amount of Contract Securities as the amount of
Securities set forth opposite the name of such Underwriter bears to the total
amount of Securities set forth in Schedule A hereto, except to the extent that
you determine that such reduction shall be otherwise than in such proportion and
so advise the Company; provided, however, that the total amount of Securities to
be purchased by all Underwriters shall be the total amount of Securities set
forth in Schedule A hereto less the aggregate amount of Contract Securities.
The Securities to be purchased by the Underwriters will be
delivered by the Company to you for the accounts of the several Underwriters at
the office specified in Schedule B hereto against payment of the purchase price
therefor by the method, in the funds, on the date and at the times specified in
such Schedule B, or at such other time not later than eight full business days
thereafter as you and the Company determine, such time being herein referred to
as the "Closing Date". If Schedule B indicates that the Securities are to be
delivered in definitive form, such Securities shall be in such authorized
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company and will be made available for
checking and packaging at the office at which they are to be delivered at the
Closing Date (or such other office as may be specified for that purpose in
Schedule B) at least one business day prior to the Closing Date. If Schedule B
indicates that the Securities are to be delivered in global book-entry form,
such Securities shall be in the denominations specified in the applicable letter
of representations between the Company, the Trustee and The Depository Trust
Company ("DTC"), shall be registered in the name of DTC or a nominee of DTC and
shall be made available for checking at the office at which they are to be
delivered at the Closing Date (or such other office as may be specified for that
purpose in Schedule B) at least one business day prior to the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other Underwriter for Securities to be purchased by
such Underwriter. Any such payment by you shall not relieve any such Underwriter
of any of its obligations hereunder.
The Company will pay to you, at the Closing Date, for the
account of each Underwriter any commission or other compensation that is
specified in Schedule B hereto. Such
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payment will be made by certified or official bank check or checks in New York
Clearing House (next day) funds or, if specified in Schedule B, may be deducted
by you from the purchase price of the Securities.
4. Covenants. The Company covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to be
filed as required by Section 2(a) hereof (but only if you have not reasonably
objected thereto by notice to the Company after having been furnished a copy a
reasonable time prior to filing) and will notify you promptly of such filing.
During the period in which a prospectus relating to the Securities is required
to be delivered under the Act, the Company will notify you promptly of the time
when any subsequent amendment to the Registration Statement has become effective
or any subsequent supplement to the Prospectus has been filed and of any request
by the Commission for any amendment or supplement to the Registration Statement
or the Prospectus or for additional information; it will prepare and file with
the Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus that, in your reasonable opinion, may be
necessary or advisable in connection with the distribution of the Securities by
the Underwriters; it will file no amendment or supplement to the Registration
Statement or Prospectus (other than any prospectus supplement relating to the
offering of other securities registered under the Registration Statement or any
document required to be filed under the Exchange Act that upon filing is deemed
to be incorporated by reference therein) to which you shall reasonably object by
notice to the Company after having been furnished a copy a reasonable time prior
to the filing; and it will furnish to you at or prior to the filing thereof a
copy of any such prospectus supplement or any document that upon filing is
deemed to be incorporated by reference in the Registration Statement or
Prospectus.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceeding for any
such purpose; and it will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be
issued.
(c) Within the time during which a prospectus relating to the
Securities is required to be delivered under the Act, the Company will comply as
far as it is able with all requirements imposed upon it by the Act and by the
Rules and Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Securities as contemplated
by the provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to amend or
supplement the Registration Statement or the Prospectus to comply with the Act
the Company will promptly notify you and will amend or supplement the
Registration Statement or the Prospectus (at the expense of the Company) so as
to correct such statement or omission or effect such compliance.
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(d) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so long as
required for the distribution of the Securities, except that the Company shall
not be required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any jurisdiction. The
Company will also arrange for the determination of the eligibility for
investment of the Securities under the laws of such jurisdictions as you
reasonably request.
(e) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, one signed and three conformed copies of
the Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and all amendments and supplements to the Registration
Statement or Prospectus that are filed with the Commission during the period in
which a prospectus relating to the Securities is required to be delivered under
the Act (including all documents filed with the Commission during such period
that are deemed to be incorporated by reference therein), in each case as soon
as available and in such quantities as you may from time to time reasonably
request.
(f) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months after
the end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the date upon
which the Prospectus Supplement is filed pursuant to Rule 424 under the Act that
shall satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all
authorized expenses incident to the performance of its obligations hereunder,
will pay the expenses of printing all documents relating to the offering, and
will reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with the matters
referred to in Section 4(d) hereof and the preparation of memoranda relating
thereto, for any filing fee of the National Association of Securities Dealers,
Inc. relating to the Securities, for any fees charged by investment rating
agencies for rating the Securities and, if the Securities are issued in global
book-entry form, for any fees charged by DTC. If the sale of Securities to be
purchased by the several Underwriters as provided for herein is not consummated
by reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled by
the Company is not fulfilled, the Company will reimburse the several
Underwriters for all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection with their
investigation, preparing to market and marketing the Securities or in
contemplation of performing their obligations hereunder. The Company shall not
in any event be liable to any of the Underwriters for loss of anticipated
profits from the transactions covered by this Agreement.
(h) The Company will apply the net proceeds from the sale of
the Securities as set forth in the Prospectus and Prospectus Supplement.
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(i) The Company will not, directly or indirectly, offer or
sell, or determine to offer or sell, any debt securities that are substantially
similar to the Securities (except under prior contractual commitments) during
the period beginning at the time of execution of this Agreement and ending on
the first business day after the Closing Date without your prior written
consent.
5. Conditions Of Underwriters' Obligations. The obligations of
the several Underwriters to purchase and pay for Securities as provided herein
shall be subject to the accuracy, as of the date hereof and the Closing Date (as
if made at the Closing Date), of the representations and warranties of the
Company herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in your opinion is material,
or omits to state a fact that in your opinion is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any change, on a
consolidated basis, in the capital stock, long-term debt of the Company and its
subsidiaries, or any adverse change, or any development involving a prospective
adverse change, in the condition (financial or other), business, prospects, net
worth or results of operations of the Company and its subsidiaries, or any
change in the rating assigned to any securities of the Company, that, in your
judgment, makes it impractical or inadvisable to offer or deliver the Securities
on the terms and in the manner contemplated in the Prospectus.
(d) You shall have received the opinion of Nelson, Mullins,
Xxxxx & Xxxxxxxxxxx, L.L.P., counsel for the Company, dated the Closing Date, to
the effect that:
(i) The Company and each of its Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business; and all of the outstanding shares of capital stock
of each Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either
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directly or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the best knowledge of such counsel,
any other security interest, claims, liens or encumbrances;
(ii) The Indenture and the Securities have been duly
authorized, the Indenture has been duly qualified under the Trust
Indenture Act, executed and delivered, the Securities purchased by the
Underwriters have been duly executed, authenticated, issued and
delivered, and the Indenture and such Securities constitute, and any
Contract Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and the Delayed Delivery
Contracts, will constitute, valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, moratorium,
reorganization, arrangement or other similar laws now or hereafter in
effect affecting the rights of creditors generally and general
principles of equity and rules of law governing and limiting the
availability of specific performance, injunctive relief and other
equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) To the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be
disclosed in the Registration Statement by Item 103 of Regulation S-K
which is not disclosed in the Prospectus, there is no statute required
to be described in the Prospectus that is not described as required,
and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed as
required; and the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents are accurate and fairly present the information
required to be shown;
(iv) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) under the Act specified in such opinion
on the date specified therein, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act;
(v) Each part of the Registration Statement, when
such part became effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission
and at the Closing Date, complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act, the Exchange
Act and the Rules and Regulations; such counsel has no reason to
believe that either any part of the Registration Statement, when such
part became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Preliminary
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Prospectus or the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission or at the Closing
Date, included an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood that
such counsel need express no opinion as to the financial statements or
other financial or statistical data included in any of the documents
mentioned in this clause;
(vi) The Company's authorized equity capitalization
is as set forth in the Prospectus (if contained therein).
(vii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and as may be required under state securities laws and
such other approvals (specified in such opinion) as have been obtained
(viii) The execution, delivery and performance of the
Indenture, this Agreement or any Delayed Delivery Contracts, the issue
and sale of the Securities, the consummation of the other transactions
herein contemplated or the fulfillment of the terms hereof will not
conflict with, result in a breach of, or constitute a default under the
Articles of Incorporation or By-laws of the Company or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound, or
any statute, rule, order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its subsidiaries; and
the Company has full power and authority to authorize, issue and sell
the Securities as contemplated by this Agreement;
(ix) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
(x) The Company and its Subsidiaries have all
necessary franchises or permits for natural gas operations in all
communities now served, except as set forth in the Registration
Statement and except where the failure to be so authorized by franchise
or permit does not, in the opinion of such counsel, materially affect
the right of the Company or such Subsidiary to the use of its
properties or the conduct of its business; and the franchises of the
Company and its Subsidiaries referred to in the Registration Statement
are good and valid except for and subject only to such defects as may
be set forth or referred to in the Registration Statement, and such
others as do not, in the opinion of such counsel, materially affect the
right of the Company or such Subsidiary to the use of its properties or
the conduct of its business, and said franchises impose no materially
burdensome restrictions; and
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(xi) To the best knowledge of such counsel, the
Company is not a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
In rendering such opinion, such counsel may state (A) except
as to certain matters involving the absence of the need to obtain the approvals
of the South Carolina Public Service Commission and the Tennessee Regulatory
Authority for the transactions contemplated herein, its opinion is limited to
the federal laws of the United States and the laws of the State of North
Carolina and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Issuer and public officials.
(e) You shall have received from Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the validity of
the Securities, the Registration Statement, the Prospectus and other related
matters as you reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such matters.
In rendering their opinion, such counsel may rely upon the opinion of Nelson,
Mullins, Xxxxx & Scarborough, L.L.P., referred to above as to all matters
governed by North Carolina law, and may rely as to the execution and
authentication of the Securities and the execution of the Indenture on
certificates of the Trustee.
(f) At or prior to the time of execution of this Agreement and
at the Closing Date, you shall have received a letter from Deloitte & Touche
LLP, dated the date of delivery thereof, to the effect set forth in Exhibit II
hereto.
(g) You shall have received from the Company a certificate,
signed by the President and Chief Executive Officer or a Vice President and by
the principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that, to the best of their knowledge based upon reasonable
investigation:
(i) The representations and warranties of the Company
in this Agreement are true and correct, as if made at and as of the
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened, by the Commission; and
(iii) Since the date of this Agreement, there has
occurred no event required to be set forth in an amendment or
supplement to the Registration Statement or Prospectus that has not
been so set forth and there has been no document required to be filed
under the Exchange Act and the Rules and Regulations thereunder that
upon such filing would be deemed to be incorporated by reference in the
Prospectus that has not been so filed.
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(h) The Company shall have furnished to you such further
certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you. The Company will furnish you with such conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
6. Indemnification And Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective, or in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by it in connection with investigating or defending against such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by you, or by any Underwriter through you, specifically for use in
the preparation thereof.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any part of the Registration Statement when such part became
effective, or in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information furnished to the
Company by you, or by such Underwriter through you, specifically for use in the
preparation thereof, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or action as such
expenses are incurred. The Company acknowledges that the statements set forth in
the penultimate paragraph of the cover page, under the heading "Plan of
Distribution" in any Preliminary Prospectus and the Prospectus and under the
heading "Underwriting" in the Prospectus Supplement constitute the only
information furnished in writing by or on behalf of such Underwriters for
inclusion in the documents referred to in the forgoing indemnity, and you
confirm that such statements are correct.
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(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party (i) shall not relieve it from any liability which it may have
to any indemnified party under such subsection unless and to the extent such
failure prejudices the indemnifying party of substantial rights or defenses and
(ii) shall not relieve it, in any event, from any liability that it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to appoint counsel satisfactory to such indemnified party to represent
the indemnified party in such action; provided, however, that if the defendants
in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of its election
so to appoint counsel to defend such action and approval by the indemnified
party of such counsel, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by the
Underwriters in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (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 from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above 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 the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, 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 shall be deemed to be in the same proportion
as the total proceeds from the offering of the Securities (before deducting
expenses)
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received by the Company bear to the total compensation or profit (before
deducting expenses) received or realized by the Underwriters from the purchase
and resale, or underwriting, of the Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were to be determined by pro rata
allocations (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the first sentence of this subsection
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending against any
action or claim that is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
7. Representations And Agreements To Survive Delivery. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of and payment
for the Securities.
8. Substitution Of Underwriters. (a) If any Underwriter or
Underwriters shall fail to take up and pay for the amount of Securities agreed
by such Underwriter or Underwriters to be purchased hereunder, upon tender of
such Securities in accordance with the terms hereof, and the amount of
Securities not purchased does not aggregate more than 10% of
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15
the total amount of Securities set forth in Schedule A hereto, the remaining
Underwriters shall be obligated to take up and pay for (in proportion to their
respective underwriting obligations hereunder as set forth in Schedule A hereto
except as may otherwise be determined by you) the Securities that the
withdrawing or defaulting Underwriter or Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters shall fail to take up
and pay for the amount of Securities agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Securities in accordance with the
terms hereof, and the amount of Securities not purchased aggregates more than
10% of the total amount of Securities set forth in Schedule A hereto, and
arrangements satisfactory to you and the Company for the purchase of such
Securities by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination the Company
shall not be under any liability to any Underwriter (except to the extent
provided in Section 4(g) and Section 6 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of securities agreed by
such Underwriter to be purchased hereunder) be under any liability to the
Company (except to the extent provided in Section 6 hereof).
9. Termination. You shall have the right by giving notice as
hereinafter specified at any time at or prior to the Closing Date, to terminate
this Agreement if (i) the Company shall have failed, refused or been unable, at
or prior to the Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition of the Underwriters' obligations
hereunder is not fulfilled, (iii) trading of securities generally on the New
York Stock Exchange shall have been suspended, or minimum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required on such exchange, (iv) a banking moratorium shall have been
declared by Federal or New York authorities, or (v) any outbreak or escalation
of hostilities, declaration of war by Congress, any other substantial national
or international calamity or emergency shall have occurred since the execution
of this Agreement that, in your judgment, makes it impractical or inadvisable to
proceed with the completion of the sale of and payment for the Securities to be
purchased by the Underwriters. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 4(g) and
Section 6 hereof shall at all times be effective. If you elect to terminate this
Agreement as provided in this Section, the Company shall be notified promptly by
you by telephone, telex or telecopy, confirmed by letter.
10. Notices. All notices or communications hereunder shall be
in writing and if sent to you shall be mailed, delivered, telexed or telecopied
and confirmed to you at the address set forth for that purpose in Schedule B
hereto, or if sent to the Company, shall be mailed, delivered, telexed or
telecopied and confirmed to the Company at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxx X. Xxxxx, Vice President and Treasurer. Notice to
any Underwriter pursuant to Section 6 hereof shall be mailed, delivered, telexed
or telecopied and confirmed to such Underwriter's address as it appears in such
Underwriter's questionnaire or other notice furnished to the Company in writing
for the purpose of communications hereunder.
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Any party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Underwriters and their respective successors
and the controlling persons, officers and directors referred to in Section 6
hereof, and no other person will have any right or obligation hereunder. No
purchaser of any Securities from any Underwriter shall be construed a successor
or assign by reason merely of such purchase.
In all dealings with the Company under this Agreement, you
shall act on behalf of each of the several Underwriters, and any action under
this Agreement taken by you or by any one of you designated in Schedule B hereto
will be binding upon all the Underwriters.
12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank]
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If the foregoing correctly sets forth the understanding
between the Company and the several Underwriters, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and the several Underwriters.
Alternatively, the execution of this Agreement by the Company and its acceptance
by or on behalf of the Underwriters may be evidenced by an exchange of
telecopied or other written communications.
Very truly yours,
PIEDMONT NATURAL GAS COMPANY, INC.
By
----------------------------------------------
Name:
Title:
ACCEPTED as of the date first above written
[on behalf of ourselves and as
Representative(s) of the other Underwriters
named in Schedule A hereto].
[Name(s) of Representative(s)]
By
---------------------------------------------------
By
----------------------------------------------
Name:
Title:
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SCHEDULE A
AMOUNT OF SECURITIES
UNDERWRITER TO BE PURCHASED
----------
Total............................................ $
==========
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SCHEDULE B
Registration Statement No. 333-_____
Titles of Securities:
Amounts of Securities:
Purchase Price:
Delayed Delivery:
Closing
Office for delivery of Securities:
Office for payment for Securities:
Date and time of Closing:
Method of Payment:
Type of Funds:
Underwriting Commission/Discount
Amount:
Method of payment:
Address for notices per Section 10:
Name of Underwriter to act: per Section 11:
Form of Securities:
Particular terms of the Securities
Interest:
Maturity:
Other terms:
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EXHIBIT I
PIEDMONT NATURAL GAS COMPANY, INC.
[Title of Securities]
DELAYED DELIVERY CONTRACT
__________ __, 200_
Piedmont Natural Gas Company, Inc.
c/o____________________________________
[As Representative of the Several Underwriters,)
----------------------
----------------------
----------------------
Gentlemen:
The undersigned hereby agrees to purchase from Piedmont
Natural Gas Company, Inc. (the "Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert -- as of the date hereof, for
delivery on ____________, 200_ (the "Delivery Date")) $____________ principal
amount of the Company's _______________ (the "Securities"), offered by the
Company's Prospectus relating thereto, receipt of a copy of which is hereby
acknowledged, at a purchase price of ____% of the principal amount thereof plus
accrued interest, if any, from ____________ to the Delivery Date and on the
further terms and conditions set forth in this contract.
[If two or more delayed closings, insert -- The undersigned
will purchase from the Company as of the date hereof, for delivery on the dates
set forth below, Securities in the amounts set forth below:
DELIVERY DATE AMOUNT
----------------- ----------
----------------- ----------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on a Delivery Date shall be made to the Company by
(certified or official bank check) [wire transfer] of [next day] [immediately
available) funds [payable to the order of the Company] [to the Company's account
at ___________________] on that Delivery Date upon delivery to the
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undersigned of the Securities to be purchased by the undersigned for delivery on
that Delivery Date in [definitive] (book-entry) form [and in such denominations
and registered in such names as the undersigned may designate by written or
telecopied communication addressed to the Company not less than five full
business days prior to that Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the total amount of Securities to be purchased by the
undersigned on that Delivery Date.]
The obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on a Delivery Date shall be subject only to the
conditions that (1) investment in the Securities shall not at that Delivery Date
be prohibited under the laws of any jurisdiction in the United States to which
the undersigned is subject, which investment the undersigned represents is not
prohibited on the date hereof, and (2) the Company shall have sold to the
Underwriters the amount of Securities to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus mentioned above.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any
other similar contracts is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If this
contract is acceptable to the Company, it is requested that the Company sign the
form of acceptance below and mail or deliver one of the counterparts hereof to
the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered.
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This contract shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
[Name of Purchaser]
By
-----------------------------------------
Name:
Title:
-----------------------------------------
-----------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
PIEDMONT NATURAL GAS COMPANY, INC.
By______________________________________
Name:
Title:
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EXHIBIT II
1. They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the Exchange Act and the Rules and Regulations.
2. In their opinion, the financial statements and any
schedules audited by them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations of the Commission
thereunder.
3. They have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS 71, Interim Financial Information, on
the unaudited financial statements included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus.
4. On the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and the
audit committee of the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries, nothing came to their attention
which caused them to believe that:
(A) any material modifications should be made to the
unaudited financial statements, if any, included or
incorporated by reference in the Prospectus, for them
to be in conformity with generally accepted
accounting principles as applied in the United
States;
(B) the unaudited financial statements, if any, included
or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act or the
Exchange Act and the published rules and regulations
of the Commission thereunder;
(C) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set
forth in the unaudited consolidated financial
statements from which such capsule information was
derived or was not determined on a basis
substantially consistent with that of the audited
financial statements included in the Prospectus;
(D) at the date of the latest available balance sheet
read by such accountants, or at a subsequent
specified date not more than five days prior to the
date of such letter, there was any change in the
capital stock (except for the
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issuance of Common Stock under the Company's Employee
Stock Purchase Plan, Executive Long-Term Incentive
Plan and Dividend Reinvestment and Stock Purchase
Plan) or any increase in short-term indebtedness or
consolidated long-term debt or any decrease in total
common stock equity of the company and consolidated
subsidiaries; or, at the date of the latest available
balance sheet read by such accountants, there was any
increase in consolidated net current liabilities or
any decrease in consolidated net assets, as compared
with amounts shown on the latest balance sheet
included in the Prospectus; or
(E) for the period from the date of the latest income
statement included in the Prospectus to the date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year,
in consolidated operating revenues, utility operating
income or net income; except in all cases set forth
in clauses (D) and (E) above for changes, increases
or decreases which the Prospectus discloses have
occurred or may occur or which are described in such
letter.
5. They have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained in
the Prospectus (in each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection. References to the Prospectus in this
Exhibit II include any supplement thereto at the date of the letter.
