EXHIBIT 1-2
NEW YORK STATE ELECTRIC & GAS CORPORATION
[TITLE OF PREFERRED STOCK]
UNDERWRITING AGREEMENT
[Insert Date]
[Name of Representatives]
for themselves and as Representatives for the Underwriters
named in Schedule A, attached hereto
[Name and Address of Representatives]
Ladies and Gentlemen:
New York State Electric & Gas Corporation, a corporation duly
organized and existing under the laws of the State of New York (the "Company"),
proposes to issue and sell ________________ shares of its [TITLE OF PREFERRED
STOCK] (the "Firm Securities"). In addition, the Company proposes to issue and
sell to the several Underwriters not more than an additional aggregate of
[___________] shares of its [TITLE OF PREFERRED STOCK] (the "Additional
Securities") if and to the extent that [Name of representatives] (together, the
"Representatives") shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of Securities granted to the
Underwriters in Section 3 hereof. The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the "Securities." The
Company hereby agrees with the Representatives and each of the other
Underwriters named in Schedule I hereto (collectively, including the
Representatives, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 9 hereof) as follows:
1. [Any discretion to be exercised with respect to this Agreement will be
exercised jointly by _____ and _____ as [joint book running managers].]
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_______) (the
"Registration Statement," which term shall include all exhibits thereto and the
documents incorporated by reference in the prospectus contained therein), in
respect of the Securities and certain other securities of the Company has been
filed with the Securities and Exchange Commission (the "Commission"); the
Registration Statement, in the form heretofore delivered or to be delivered to
the Underwriters has been declared effective by the Commission in such form; no
other document with respect to the Registration Statement or document
incorporated by reference therein has heretofore been
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filed or transmitted for filing with the Commission; and no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission (the term "Base Prospectus" means the base prospectus relating to the
Securities and other securities included in the Registration Statement; the term
"Prospectus" means the Base Prospectus supplemented by a prospectus supplement
("Prospectus Supplement") relating specifically to the Securities filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Act"); the term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Securities together with the Base
Prospectus; any reference herein to any Base Prospectus, Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the Act,
as of the date of such Base Prospectus, Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement shall be deemed to
refer to and include any documents filed after the date of such Base Prospectus
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Base Prospectus; any reference to the
Registration Statement shall be deemed to refer to and include any document
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference in the
Registration Statement;
(b) Except for the order of the Commission with respect to the effectiveness of
the Registration Statement referred to in paragraph (a) above, no consent,
approval, authorization, order, registration or qualification of or with any
federal or state commission, court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement, except such approvals as have
been, or will have been, prior to the Time to Delivery, obtained under the Act,
and such consents, approvals, authorizations, orders, registrations or
qualifications as have been, or will have been, prior to the Time to Delivery,
[obtained from the Public Service Commission of the State of New York and] as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; and a copy of
the order heretofore entered by the Commission with respect to the effectiveness
of the Registration Statement has been or will be delivered to Underwriters;
(c) The documents incorporated by reference in the Prospectus, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter of the Securities
expressly for use in the Prospectus as amended or supplemented;
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(d) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date and the Time of Delivery as to the
Prospectus and any amendment or supplement thereto, 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; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by any Underwriter of the Securities expressly for use
in the Prospectus as amended or supplemented;
(e) The financial statements filed with or as part of the Registration
Statement present fairly the financial position, results of operations and
changes in financial position of the Company at the dates and for the periods
indicated, all in conformity with generally accepted accounting principles; and
the Company has no material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus;
(f) The Company has not sustained, since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus,
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which would result in any
material adverse change, or any development involving a prospective material
adverse change in or affecting the general affairs, management, financial
position, stockholder's equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock or
long-term debt of the Company, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholder's equity or results
of operations of the Company, otherwise than as set forth or contemplated in the
Prospectus;
(g) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company;
(h) The Company has an authorized capitalization as set forth in the Prospectus
as amended or supplemented, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable;
(i) This Agreement has been duly authorized, executed and delivered by the
Company;
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(j) The Securities have been duly and validly authorized, and, when issued and
delivered against payment therefor as provided herein, will be duly and validly
issued and fully paid and non-assessable, and will conform to the description
thereof contained in the Prospectus, as supplemented;
(k) The issue and sale of the Securities and the compliance by the Company with
all of the provisions of the Securities and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended, or By-laws
of the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties;
(l) The statements set forth in the Prospectus as supplemented under the
captions "Description of Securities-New Preferred Stock" and "Description of the
Preferred Stock," insofar as they purport to constitute a summary of the terms
of the Securities, and under the captions ["Material United States Federal
Income Tax Considerations,"] "Plan of Distribution" and "Underwriting," insofar
as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(m) The Company is not in violation of its Restated Certificate of
Incorporation, as amended, or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contracts, indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or of which any
property of the Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a material adverse effect
on the current or future financial position, stockholder's equity or results of
operations of the Company; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the
Securities, will not be an "investment company," as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(p) PricewaterhouseCoopers LLP, who have certified certain financial statements
of the Company, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and
(q) Other than as set forth in the Prospectus, the Company (i) is in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of
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human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all
permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its businesses and (iii) is in compliance with all
terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company;
3. On the basis of the representations, warranties and covenants contained in
this Agreement, and subject to the terms and conditions herein set forth, (a)
the Company agrees to sell to the several Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, the number of
shares of the Firm Securities set forth in Schedule I hereto opposite such
underwriter's name at a purchase price equal to $__ per share (the "Purchase
Price"), and (b) the Company agrees to sell to the several Underwriters, and the
Underwriters shall have the right to purchase, severally and not jointly, up to
[___________] Additional Securities at the Purchase Price. Additional Securities
may be purchased as provided in this Section 3 solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. On each day, if any, Additional Securities are to be purchased (an
"Option Time of Delivery"), each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Securities (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Securities to be purchased on such Option Time
of Delivery as the number of Firm Securities set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm
Securities.
Any such election to purchase Additional Securities may be exercised
by written notice from the Representatives to the Company given within a period
of 30 calendar days after the date of this Agreement, setting forth the
aggregate number of shares of Additional Securities to be purchased and the date
and time on which such Additional Securities are to be delivered, as determined
by the Representatives, but in no event earlier than the First Time of Delivery
(as defined below) or, unless the Representatives and the Company otherwise
agree in writing, no earlier than two or later than ten business days after the
date of such notice. In this Section 3, "business day" shall mean a day on
which the New York Stock Exchange is open for trading.
4. Certificates for the Firm Securities and the Additional Securities to be
purchased by the Underwriters pursuant to this Agreement, in such form and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the respective accounts of the several Underwriters, against
payment of the Purchase Price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to the Representatives at least
forty-eight hours in advance, (i) with respect to the Firm Securities, at 9:30
a.m., New York City time on [insert date] or such other date and time as the
Company and the Underwriters may agree upon in writing, such time and date being
herein called the "First Time of Delivery" and (ii) with respect to the
Additional Securities, if any, at 9:30 a.m., New York City time, at the Option
Time of Delivery, or at such other time and date as the Representatives and the
Company may agree upon in writing. Each such time and date for
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delivery is herein called a "Time of Delivery." The Company will cause the
certificates representing the Securities to be made available to the
Underwriters for checking at least twenty-four hours prior to the applicable
Time of Delivery at the offices of Shearman & Sterling.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second business
day following the date hereof or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
hereof and prior to the Time of Delivery which shall be disapproved by the
Underwriters promptly after reasonable notice thereof (other than the filing of
any document required to be filed under the Exchange Act which upon filing is
deemed to be incorporated by reference in the Registration Statement or
Prospectus); to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Underwriters with copies
thereof; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
such Securities, and during such same period to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York business day next
succeeding the date of this Agreement and from time to time, to furnish the
Representatives with copies of the Prospectus as amended or supplemented in New
York City in such quantities as the Representatives may reasonably request, and,
if the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall
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have occurred 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 any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify the Underwriters and
upon their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To make generally available to its securityholders as soon as practicable,
but in any event not later than 18 months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date hereof and continuing to and
including the later of (i) the termination of trading restrictions for the
Securities, as notified to the Company by the Underwriters and (ii) the last
Time of Delivery for the Securities, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company that are substantially
similar to the Securities, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to receive,
the Securities or any such substantially similar securities (other than
pursuant to director or employee stock option or benefit plans existing on,
or upon the conversion of convertible or exchangeable securities outstanding as
of the date hereof) without the prior written consent of the Representatives
on behalf of the Underwriters.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing certificates for the
Securities; (vii) the cost and charges of any transfer agent or registrar or
dividend disbursing agent in connection with the Securities; and (viii) all
other costs
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and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section 6, and Sections 8 and 12
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters shall be subject, in the discretion of
the Underwriters, to the condition that all representations and warranties and
other statements of the Company in or incorporated by reference in the
Prospectus as amended or supplemented are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall have furnished
to the Underwriters their opinion, dated the Time of Delivery, with respect to
the Company being duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation, the matters covered in paragraphs (iii) and
(v) of subsection (c) below, and the accuracy and completeness of the statements
set forth in the Prospectus as supplemented under the captions "Description of
Securities-New Preferred Stock" and "Description of the Preferred Stock,"
insofar as they purport to constitute a summary of the terms of the Securities,
and under the captions "Plan of Distribution" and "Underwriting," insofar as
they purport to describe the provisions of the laws and documents referred to
therein, as well as such other matters as the Representatives on the behalf of
the Underwriters may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxx Xxxxxxxx & Xxxxx, counsel for the Company, shall have furnished to
the Underwriters their opinion, dated the Time of Delivery, in form and
substance satisfactory to the Representatives on behalf of the Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as amended or
supplemented and, where applicable, is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company;
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(ii) All of the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable, and, to
the best of such counsel's knowledge, all of the outstanding shares of common
stock of the Company are held by RGS Energy Group, Inc., a wholly-owned
subsidiary of Energy East Corporation;
(iii) The Securities have been duly and validly authorized and issued and are
fully paid and non-assessable and conform to the description thereof in the
Prospectus as amended or supplemented;
(iv) To the best of such counsel's knowledge and other than as set forth in
the Prospectus as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company is a party or of which any property of
the Company is the subject which, if determined adversely to the Company, would
individually or in the aggregate have a material adverse effect on the current
or future financial position, stockholder's equity or results of operations of
the Company; and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(v) This Agreement has been duly authorized, executed and delivered by the
Company;
(vi) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound, nor will such
actions result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company;
(vii) No consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have been obtained
under the Act, [and such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained from the Public Service
Commission of the State of New York], and such consents, approvals,
authorizations, orders, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(viii) The Company is not in violation of its By-laws or Restated Certificate of
Incorporation, as amended, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, lease or other instrument to
which it is a party;
(ix) The statements set forth in the Prospectus as amended or supplemented
under the captions "Description of Securities-New Preferred Stock" and
"Description of the Preferred Stock," insofar as they purport to constitute a
summary of the terms of the Securities, and under the captions ["Material United
States Federal Income Tax Considerations,"] "Plan of Distribution"
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and "Underwriting," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(x) The Company is not an "investment company," as such term is defined in
the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements, including the notes thereto
and related schedules therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and they have no reason to believe
that any of such documents, when they were so filed contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading; and
(xii) The Registration Statement and the Prospectus as amended or supplemented
and any further amendments and supplements thereto made by the Company prior to
the Time of Delivery (other than the financial statements, including the notes
thereto, and related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (ix) of this Section 7(c), they have no
reason to believe that, as of the date of effectiveness of the Registration
Statement and as of the Time of Delivery, the Registration Statement (other than
the financial statements, including the notes thereto, and related schedules
therein, as to which such counsel need express no opinion) 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, as of its date and as of the Time of Delivery, the Prospectus (other than
the financial statements, including the notes thereto, and related schedules
therein, as to which such counsel need express no opinion) contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and they do not know of any
amendment to the Registration Statement as amended or supplemented required to
be filed or any contracts or other documents of a character required to be filed
as an exhibit to such Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus, each as amended or
supplemented, which are not filed or incorporated by reference or described as
required;
(d) On the date hereof and at the Time of Delivery, the independent
accountants of the Company who have certified the financial statements of the
Company included or incorporated by reference in the Registration Statement
shall have furnished to the Underwriters a letter to the effect set forth in
Exhibit A hereto with respect to such letter dated the date hereof, and as to
such other matters as the Underwriters may reasonably request and in form and
substance satisfactory to the Representatives on behalf of the Underwriters and
the independent accountants of the Company
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with respect to such letter dated the Time of Delivery;
(e) (i) The Company shall not have sustained, since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which would result in
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholder's equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, and (ii) since
the date hereof there shall not have been any change in the capital stock or
long-term debt of the Company or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholder's equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus as of the date of
this Agreement, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Underwriters so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(f) During the period beginning on the date hereof and ending at the Time of
Delivery (i) no downgrading shall have occurred in the rating accorded the
Company or the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Company or of any
of the Company's debt securities or preferred stock;
(g) During the period beginning on the date hereof and ending at the Time of
Delivery, there shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such exchange; (ii) a
suspension or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) an outbreak or escalation of hostilities
involving the United States or the declaration of a national emergency or war by
the United States; or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in this clause (iv) or (v)
in the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
(h) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York business
day next succeeding the date of this Agreement;
(i) The Company shall have furnished or caused to be furnished to the
Underwriters at the Time of Delivery a certificate or certificates of officers
of the Company satisfactory to the Representatives
11
on behalf of the Underwriters as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as the Underwriters may
reasonably request; and
(j) The Company shall have furnished the Underwriters at the Time of
Delivery a copy of the written approval of the Public Service Commission of the
State of New York of the terms of the Securities.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject. The Company also agrees to 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 the Preliminary Prospectus, the
Registration Statement, 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 such Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim 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 in the Preliminary Prospectus, the Registration Statement,
the Prospectus, or any such amendment or supplement thereto, in reliance upon
and in conformity with written information relating to any Underwriter furnished
to the Company expressly for use in the Prospectus as amended or supplemented.
(b) Each Underwriter will severally and not jointly 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 Preliminary Prospectus, the Registration
Statement, 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 in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by such Underwriter
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
12
(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 shall
not relieve it from any liability which 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 participate
therein 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 such subsection 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 other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
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 to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), 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 net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. 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 on the
13
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in 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 any such action or claim. 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 which 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 obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls the Company
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter and to each person,
if any, who controls an Underwriter, within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase under this Agreement, the
non-defaulting Underwriters may in their discretion arrange for themselves or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the non-defaulting Underwriters do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase such Securities on
such terms. In the event that, within the respective prescribed period, the
non-defaulting Underwriters notify the Company that they have so arranged for
the purchase of such Securities, or the Company notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such Securities, the
non-defaulting Underwriters or the Company shall have the right to postpone the
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the non-defaulting Underwriters may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement.
14
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in subsection (a) above, the aggregate
number of shares of such Securities which remains unpurchased does not exceed
one-eleventh of the aggregate number of shares of the Securities to be purchased
at the applicable Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of shares of
Securities, which such non-defaulting Underwriter agreed to purchase under this
Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of shares of Securities, which
such Underwriter agreed to purchase hereunder as a percentage of the aggregate
number of Firm Securities to be purchased hereunder by all non-defaulting
Underwriters) of the Securities, which such defaulting Underwriter or
Underwriters agreed to purchase for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in subsection (a) above, the aggregate
number of shares of Securities which remains unpurchased exceeds one-eleventh of
the aggregate number of shares of the Securities to be purchased at the
applicable Time of Delivery or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of such Underwriters; if to _________; if
to __________; and if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to New York State Electric & Gas Corporation, X.X. Xxx
0000, Xxxxxx, XX 00000-0000, Attn: Treasurer, facsimile number: (607)
347-2560; PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth above. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. If the Company fails or refuses to comply with the terms or to fulfill
any of the conditions of this Agreement other than by reason of default by the
Underwriters, the Company will reimburse the
15
Underwriters for all out-of-pocket expenses approved in writing by the
Underwriters, including fees and disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase of the Securities.
13. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters and the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls any Underwriter or the Company, and 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 Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. As used herein and except as otherwise provided in Section 3, "business
day" shall mean any day when the Commission's office in Washington, D.C. is open
for business.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall together constitute one
and the same instrument.
[Signature page follows on the next page.]
16
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
NEW YORK STATE ELECTRIC & GAS
CORPORATION
By:
Name:
------------------------
Title:
------------------------
Accepted as of the date hereof:
[Name of Representatives]
[NAME OF REPRESENTATIVE]
By:
Name:
-------------------------
Title:
--------------------------
[NAME OF REPRESENTATIVE]
By:
Name:
-------------------------
Title:
--------------------------
For themselves and on behalf of the several Underwriters named in Schedule I
hereto.
SCHEDULE I
NAME Number of shares of
Firm Securities to be Purchased
TOTAL -------------------
EXHIBIT A
Pursuant to Section 7(d) of the
Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company within the meaning of the Act and the applicable rules and
regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial statement schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) by them and included or
incorporated by reference in the Registration Statement or the 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 related
rules and regulations adopted by the Commission;
(iii) They have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement on Auditing Standards (SAS) 71,
Interim Financial Information, on the unaudited condensed statements of
income, balance sheets and statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus; and on the basis of
specified procedures (but not an audit in accordance with generally
accepted auditing standards) including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed interim financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed interim
financial statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
results of operations and financial position of the Company for the five
most recent fiscal years set forth under the caption "Selected Financial
Data and Capitalization" included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form
10-K for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited financial statements
for five such fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an audit in
accordance
A-1
with generally accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the
Company, inspection of the minute books of the Company since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, 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 as a result of the foregoing procedures that caused them to
believe that:
(A) (i) the unaudited condensed statements of income, balance
sheets and statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules
and regulations adopted by the Commission, or (ii) any material
modifications should be made to the unaudited condensed statements of
income, balance sheets and statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma condensed financial statements
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 and the rules and regulations adopted by the
Commission thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) at the date of the latest available interim financial data
and at a specified date not more than five business days prior to the
date of such letter, there have been any changes in the capital stock
or any increase in the long-term debt of the Company, or any decreases
in net current assets or shareholders' equity
A-2
or other items specified by the Underwriters, or any increases in any
items specified by the Underwriters, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest income statement
included or incorporated by reference in the Prospectus to the
specified date referred to in clause (E) there were any decreases in
operating revenues or operating income or total net income or other
items specified by the Underwriters, or any increases in any items
specified by the Underwriters, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Underwriters, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Underwriters which were obtained
from accounting records which are subject to controls over financial
reporting or which have been derived directly from such accounting records
of the Company by analysis or computation, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Underwriters or in documents incorporated by reference in the Prospectus
specified by the Underwriters, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and have found them to be in agreement.
A-3
