EXHIBIT 1
Alabama Gas Corporation
$40,000,000
[ ]% Notes due September 1, 2016
$35,000,000
[ ]% Notes due September 1, 2031
Underwriting Agreement
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August [ ], 2001
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Alabama Gas Corporation, an Alabama corporation (the Company), hereby
confirms its agreement with the several Underwriters (as defined below) as
follows:
1. Purchase and Sale. Upon the basis of the representations and
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warranties herein contained, and subject to the terms and conditions herein set
forth, the Company agrees to sell to each of the several firms or corporations
named in Schedule I hereto and any firm or corporation substituted as provided
in Section 3(c) hereof as if such firm or corporation had originally been a
party to this Agreement (each, an Underwriter), and each Underwriter agrees, at
the time and place herein specified, severally and not jointly, to purchase from
the Company the respective principal amounts of the Company's [ ]% Notes due
September 1, 2016 and [ ]% Notes due September 1, 2031 (collectively, the
Securities), at the respective purchase prices of [ ]% and [ ]% of the
principal amount thereof set forth opposite such Underwriter's name on Schedule
I hereto and having the terms set forth in the Prospectus (as defined in Section
2(b) hereof). The Securities will be issued pursuant to an Indenture dated as
of November 1, 1993 (as amended and supplemented, the Indenture) between the
Company and The Bank of New York, as successor to NationsBank of Georgia,
National Association (the Trustee). Payment of principal of and interest on the
Securities when due will be guaranteed by a financial guaranty insurance policy
in substantially the form of Appendix A to the Prospectus (the Financial
Guaranty Insurance Policy)
to be issued by Ambac Assurance Corporation (the Insurer) simultaneously with
the delivery of the Securities.
2. Representations and Warranties of Company. The Company represents and
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warrants to, and covenants and agrees with, the several Underwriters that:
(a) Filing of Registration Statement and any Preliminary Prospectus
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with SEC. The Company meets the requirements for use of Form S-3 under the
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Securities Act of 1933, as amended (the 1933 Act), and has filed with the
Securities and Exchange Commission (the SEC) the Registration Statement (as
defined below) and each Preliminary Prospectus (as defined below) relating to
the Securities, if any, required to be filed pursuant to Rule 424 under the 1933
Act; the Registration Statement has been declared effective by the SEC under the
1933 Act and complies in all material respects with Rule 430A under the 1933
Act; and no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or threatened by the SEC, and
any request on the part of the SEC for additional information has been complied
with by the Company. For the purposes of this Agreement, the following terms
used herein shall have the following meanings: (i) Registration Statement shall
mean the registration statement on Form S-3 (No. 333-[ ]) filed by the
Company with the SEC for the registration of the Securities under the 1933 Act,
as amended to the date of this Agreement and including the exhibits thereto, and
shall be deemed to include the Incorporated Documents (as defined below) and the
information deemed to be included therein pursuant to Rule 430A under the 1933
Act; (ii) Incorporated Documents shall mean the documents filed by the Company
with the SEC under the Securities Exchange Act of 1934, as amended (the 1934
Act), that are, or are deemed to be, incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act; (iii) Preliminary Prospectus
shall mean any prospectus used in connection with the offering and sale of the
Securities prior to the initial Effective Date (as defined below) and any
prospectus that omitted information in reliance on Rule 430A under the 1933 Act
that was used in connection with the offering and sale of the Securities after
such Effective Date and prior to the execution and delivery of this Agreement,
and shall in each case be deemed to include the Incorporated Documents; and (iv)
Effective Date shall mean the date or time that the Registration Statement or
any post-effective amendment thereto was declared effective by the SEC under the
1933 Act. For purposes of this Agreement, the words "amend," "amendment" or
"amended" with respect to the Registration Statement or the Prospectus shall
mean (i) amendments to the Registration Statement or the Prospectus and (ii)
Incorporated Documents, in each case filed with the SEC or sent to prospective
purchasers of the Securities after the date of this Agreement and prior to the
completion of the distribution of the Securities.
(b) Registration Statement; Prospectus; Incorporated Documents. (i)
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The Registration Statement, at its Effective Date, any Preliminary Prospectus,
when delivered to the Underwriters for their use in marketing the Securities
(whether or not filed with the SEC pursuant to Rule 424 under the 1933 Act), and
the Prospectus, at the time it is filed with the SEC pursuant to Rule 424(b)
under the 1933 Act and when delivered to the Underwriters for their use in
making confirmations of sales of the Securities, complied and will comply, as
the case may be, in all material respects with the applicable requirements of
the 1933 Act, the Trust Indenture Act of 1939, as amended (the 1939 Act), and,
in each case, the rules and regulations of the SEC
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thereunder; (ii) the Registration Statement, at its Effective Date, did not
include 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; (iii) the Prospectus, at the time it is filed with the SEC pursuant
to Rule 424(b) under the 1933 Act and when delivered to the Underwriters for
their use in making confirmations of sales of the Securities, will not, and any
Preliminary Prospectus, when delivered to the Underwriters for their use in
marketing the Securities (whether or not filed with the SEC pursuant to Rule 424
under the 1933 Act), did not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and (iv) each Incorporated Document, at the time it was or is filed with the SEC
pursuant to the 1934 Act, complied and will comply, as the case may be, in all
material respects with the applicable requirements of the 1934 Act and the rules
and regulations of the SEC thereunder and, at such times, did not contain and
will not contain, as the case may be, an untrue statement of a material fact and
did not omit and will not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that, in the case of clauses (i),
(ii) and (iii) above, the Company makes no representation or warranty as to (x)
information furnished in writing to the Company by any Underwriter expressly for
use in the Prospectus, which for purposes of this Agreement shall be deemed to
consist solely of (1) the statements with respect to the delivery of the
Securities in the last paragraph on the cover page of the Prospectus, and (2)
the statements in paragraphs three, four, six and seven under the caption
"Underwriting" in the Prospectus (collectively, the Underwriter Information) or
(y) that part of the Registration Statement which shall constitute the Statement
of Eligibility and Qualification of the Trustee on Form T-1 under the 1939 Act.
For purposes of this Agreement, Prospectus shall mean the prospectus included in
the Registration Statement at the initial Effective Date, as such prospectus may
at any time be amended by the addition of (i) the information omitted in
reliance on Rule 430A under the 1933 Act and contained in the prospectus as
first filed with the SEC pursuant to Rule 424(b) under the 1933 Act and (ii)
except for purposes of Section 5(e) hereof, any Incorporated Documents filed
with the SEC after the Effective Date.
(c) Indenture. The Indenture has been duly qualified under the 1939
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Act, has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, will constitute a valid and binding instrument of the Company
enforceable against the Company in accordance with its terms, except as may be
limited by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) requirements of reasonableness, good faith and fair dealing (such
exceptions, collectively, the Exceptions); and the Indenture will conform to the
description thereof contained in the Prospectus.
(d) Securities. The Securities have been duly authorized and, at the
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Closing Date, will have been duly executed by the Company, and, when
authenticated in the manner provided for in the Indenture, issued and delivered
against payment therefor by the Company as described in the Prospectus, will
constitute valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as may be limited by the
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Exceptions, and will be entitled to the benefits of the Indenture; and the
Securities will conform to the description thereof contained in the Prospectus.
(e) Agreement. This Agreement has been duly authorized, executed
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and delivered by the Company.
(f) Due Incorporation. The Company has been duly incorporated and is
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validly existing as a corporation in good standing under the laws of the State
of Alabama, with corporate power and authority to own its properties and conduct
its business as described in the Prospectus and to execute and deliver, and
perform its obligations under, this Agreement, the Indenture and the Securities;
the Company is not required by the nature of its business to be licensed or
qualified as a foreign corporation in any other state or jurisdiction, except
where the failure to be so qualified would not have a material adverse effect on
the Company; and the Company has only one subsidiary, Midtown NGV, Inc., which
is a wholly-owned subsidiary with assets not in excess of $75,000.
(g) Material Changes. The Company has not sustained, since the date
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of the most recent financial statements included or incorporated by reference in
the Prospectus, any material 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, otherwise
than as set forth in the Prospectus; and, since the respective dates as of which
information is given in the Prospectus, there has not been any change in the
capital stock, long-term debt or net assets 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 in the Prospectus.
(h) No Conflicts; Alabama Commission Order in Full Force and Effect;
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No Consents Required. The offering and sale of the Securities and the
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compliance by the Company with all of the provisions of the Securities, the
Indenture 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 Company's articles of
incorporation or bylaws, each as amended (the Organizational Documents), or any
statute, rule, regulation or other law, or any order or judgment, of any court
or governmental agency or body having jurisdiction over the Company or any of
its properties; the Alabama Public Service Commission has issued its final order
(the Alabama Commission Order) authorizing the issue and sale of the Securities
by the Company and such Alabama Commission Order is in full force and effect and
not the subject of any appeal or other proceeding and is sufficient to authorize
the transactions contemplated by this Agreement; and no other consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body having jurisdiction over the Company or any of its
properties is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement
and the Indenture, except such as have been
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obtained under the 1933 Act and the 1939 Act, and such consents, approvals,
authorizations, 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.
(i) Exemption from Public Utility Holding Company Act. Energen
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Corporation is the sole owner of all of the issued and outstanding common stock
of the Company and has filed an annual exemption statement on Form U-3A-2
pursuant to Rule 2 under the Public Utility Holding Company Act of 1935, as
amended (the 1935 Act), and Energen Corporation and each of its subsidiaries are
exempt from all of the provisions of the 1935 Act except Section 9(a)(2) thereof
and have received no notice, request or inquiry from the SEC terminating or
threatening to terminate or questioning such exemption.
(j) No Defaults. The Company is not in violation of the
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Organizational Documents or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease 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.
(k) Litigation. Other than as set forth in the Prospectus, there are
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no legal or governmental proceedings pending to which the Company is a party or
of which any property of the Company is the subject that, 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.
3. Offering; Delivery of Securities.
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(a) Offering. The Underwriters have advised the Company that they
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propose to make a public offering of their respective portions of the Securities
as soon after the effectiveness of this Agreement as in their judgment is
advisable. The Underwriters have further advised the Company that they will
offer the Securities to the public at the initial public offering prices
specified in the Prospectus plus accrued interest thereon, if any, from the
Closing Date to the date of delivery of the Securities.
(b) Delivery of Securities. Delivery of the Securities to the
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Underwriters, against payment of the purchase price therefor in immediately
available funds by wire transfer, shall be made prior to 1:00 P.M., New York
City time, on August [ ], 2001 in book-entry form through the facilities of
The Depository Trust Company, New York, New York (DTC), or at such other time
and date as may be agreed upon in writing by the Company and the Underwriters.
Delivery of the documents required by Section 5 hereof with respect to the
Securities shall be made at such time and date at the offices of Pillsbury
Winthrop LLP (Underwriters' Counsel), or at such other location as may be agreed
upon in writing by the Company and the Underwriters. For purposes of this
Agreement, Closing Date shall mean the hour and date of such delivery and
payment.
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The Securities shall be issued in the form of a global certificate
registered in the name of "Cede & Co.," as nominee of DTC. For the purpose of
expediting the Underwriters' checking of the Securities, the Company agrees to
make the Securities available to the Underwriters for such purpose at the
offices of DTC (or a custodian thereof) in New York, New York, not later than
1:00 P.M., New York City time, on the business day preceding the Closing Date or
at such other time and place as may be agreed upon by the Company and the
Underwriters.
(c) Defaulting Underwriters. If an Underwriter shall default in its
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obligation to purchase the Securities that it has agreed to purchase under this
Agreement, the non-defaulting Underwriter may in its discretion arrange for
itself or another firm or corporation or firms or corporations to purchase such
Securities on the terms contained herein. If, within thirty-six hours after
such default by an Underwriter, the non-defaulting Underwriter does 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 firm or
corporation or firms or corporations to purchase such Securities on such terms.
In the event that, within the respective prescribed period, the non-defaulting
Underwriter shall notify the Company that it has so arranged for the purchase of
such Securities, or the Company notifies the non-defaulting Underwriter that it
has so arranged for the purchase of such Securities, the non-defaulting
Underwriter or the Company shall have the right to postpone the Closing Date for
such Securities 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, 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 that in the opinion of the non-defaulting
Underwriter may thereby be made necessary. If, after giving effect to any
arrangements for the purchase of the Securities of a defaulting Underwriter by
the non-defaulting Underwriter and the Company, the aggregate principal amount
of such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Securities, then the Company shall have the
right to require the non-defaulting Underwriter to purchase the principal amount
of the Securities that the non-defaulting Underwriter agreed to purchase under
this Agreement and, in addition, to require the non-defaulting Underwriter to
purchase the Securities of the defaulting Underwriter for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default. If, after giving effect to any
arrangements for the purchase of the Securities of the defaulting Underwriter by
the non-defaulting Underwriter and the Company, the aggregate principal amount
of the Securities that remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Securities, or if the Company shall not exercise the
right to require the non-defaulting Underwriter to purchase the Securities of
the defaulting Underwriter, then this Agreement shall thereupon terminate,
without liability on the part of the non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 4(j) hereof and the indemnity and contribution agreements in
Section 6 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
4. Covenants of Company. The Company covenants and agrees with the
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several Underwriters that:
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(a) Filing of Prospectus. The Company will promptly transmit copies
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of the Prospectus, and any amendments or supplements thereto, to the SEC for
filing pursuant to Rule 424(b) under the 1933 Act.
(b) Copies of Registration Statement and Prospectus; Notice of Stop
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Orders. The Company will deliver to each Underwriter and to Underwriters'
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Counsel (i) one conformed copy of the Registration Statement as originally
filed, including copies of exhibits thereto (other than any exhibits
incorporated by reference therein), (ii) conformed copies of any amendments to
the Registration Statement, including conformed copies of the Incorporated
Documents (other than exhibits thereto), and (iii) a conformed copy of each
consent and certificate included or incorporated by reference in, or filed as an
exhibit to, the Registration Statement as so amended; the Company will deliver
to the Underwriters as soon as practicable after the date of this Agreement as
many copies of the Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act; the Company will promptly advise the
Underwriters of the issuance of any stop order under the 1933 Act with respect
to the Registration Statement (as amended) or the institution of any proceedings
therefor, or the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, of which the Company shall have received notice or otherwise have
knowledge prior to the completion of the distribution of the Securities; and the
Company will use its best efforts to prevent the issuance of any such stop order
and, if issued, to secure the prompt removal thereof.
(c) Filing of Amendments or Supplements. During the period when a
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prospectus relating to any of the Securities is required to be delivered under
the 1933 Act by the Underwriters or any dealer, the Company will not file any
amendment or supplement to the Registration Statement, the Prospectus or any
Incorporated Document to which the Underwriters or Underwriters' Counsel shall
reasonably object.
(d) Compliance with 1933 Act. During the period when a prospectus
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relating to any of the Securities is required to be delivered under the 1933 Act
by any Underwriter or any dealer, the Company will comply, at its own expense,
with all requirements imposed by the 1933 Act, as now and hereafter amended, and
by the rules and regulations of the SEC thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealing in
the Securities during such period in accordance with the provisions hereof and
as contemplated by the Prospectus.
(e) Certain Events and Amendments or Supplements. If, during the
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period when a prospectus relating to any of the Securities is required to be
delivered under the 1933 Act by any Underwriter or any dealer, (i) any event
relating to or affecting the Company or of which the Underwriters shall advise
the Company in writing shall occur as a result of which, in the opinion of the
Company or the Underwriters, the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or (ii) it shall be
necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the 1933 Act, the 1934 Act or the 1939 Act or the rules and
regulations of the SEC thereunder, the Company will forthwith at its expense
prepare
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and furnish to the Underwriters a reasonable number of copies of such amendment
or supplement that will correct such statement or omission or effect such
compliance.
(f) Blue Sky Qualifications. During the period when a prospectus
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relating to any of the Securities is required to be delivered under the 1933 Act
by any Underwriter or dealer, the Company will furnish such proper information
as may be lawfully required and otherwise cooperate in qualifying the Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
as the Underwriters may reasonably designate and will file and make in each year
such statements or reports as are or may be reasonably required by the laws of
such jurisdictions; provided, however, that the Company shall not be required to
qualify as a foreign corporation, qualify as a dealer in securities or file a
general consent to service of process under the laws of any jurisdiction.
(g) Earning Statement. In accordance with Rule 158 under the 1933
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Act, the Company will make generally available to its security holders and to
holders of the Securities, as soon as practicable, an earning statement (which
need not be audited) which will satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 under the 1933 Act.
(h) Exchange Act Documents; Ratings Notification. During the period
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when a prospectus relating to any of the Securities is required to be delivered
under the 1933 Act by any Underwriter or dealer, the Company will file promptly
all documents required to be filed with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act; and the Company will promptly notify the
Underwriters of any written notice given to the Company by any "nationally
recognized statistical rating organization" within the meaning of Rule 436(g)(2)
under the 1933 Act (a Rating Agency) of any intended decrease in any rating of
any securities of the Company or of any intended change in any such rating that
does not indicate the direction of the possible change of any such rating, in
each case by any such Rating Agency.
(i) No Issuance Period. During the period beginning from the date of
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this Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Securities, as determined by the
Underwriters, and (ii) 15 days after the Closing Date, the Company will not,
without the Underwriters' prior written consent, offer for sale, sell or enter
into any agreement to sell, or otherwise dispose of, any debt securities of the
Company, except for the Securities.
(j) Payment of Expenses. Whether or not any sale of the Securities is
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consummated, the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of Xxxxxxx Xxxxx Xxxx & White LLP, counsel for
the Company, and the Accountants in connection with the registration of the
Securities under the 1933 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 or supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and any dealers;
(ii) the cost of printing or producing this Agreement, the Indenture, any blue
sky memorandum, closing documents (including any compilations thereof) and 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
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Section 4(f) hereof, including the fees and disbursements of Underwriters'
Counsel in connection with such qualification and in connection with any such
blue sky memorandum; (iv) any fees charged by a Rating Agency for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements of
Underwriters' Counsel 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 the Securities; (vii) the fees and
disbursements of the Trustee and any agent of the Trustee and the fees and
disbursements of their counsel in connection with the Indenture and the
Securities; (viii) the premium with respect to, and any other fees and expenses
in connection with, the Financial Guaranty Insurance Policy; and (ix) all other
costs and expenses incident to the performance of the Company's obligations
hereunder that are not otherwise specifically provided for in this Section 4(j);
provided, however, that if this Agreement shall be terminated pursuant to
Section 3(c) hereof and could not have been terminated pursuant to Section 5
hereof, the Company shall then not be under any liability to any Underwriter
with respect to the Securities except as provided in this Section 4(j) and
Section 6 hereof; but, if for any other reason the Securities are not delivered
by or on behalf of the Company as provided herein, the Company will reimburse
the Underwriters for all of their out-of-pocket expenses, including fees and
disbursements of Underwriters' Counsel, reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of the Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to the Securities except as provided in this Section 4(j) and Section 6
hereof. It is understood that, except as provided in this Section 4(j) and
Section 6 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of Underwriters' Counsel and any advertising expenses in
connection with any offers they may make.
5. Conditions to Underwriters' Obligations. The obligations of the
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several Underwriters under this Agreement shall be subject to the condition that
all representations and warranties of the Company contained in this Agreement
are, at and as of the Closing Date, true and correct, the condition that the
Company shall have performed all of its obligations hereunder on or prior to the
Closing Date and the following additional conditions:
(a) Filing of Prospectus with SEC; No Stop Order; Alabama Commission
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Order in Full Force and Effect. The Prospectus, and any supplements thereto,
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shall have been filed with the SEC within the time period prescribed for such
filing by Rule 424(b) under the 1933 Act and in accordance with Section 4(a)
hereof; all requests for additional information on the part of the SEC shall
have been complied with to the Underwriters' reasonable satisfaction; 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 SEC; and the Alabama Commission Order shall
be in full force and effect and such order shall not have been amended or
modified to include conditions or restrictions which the Underwriters in good
faith determine to be unduly burdensome.
(b) Opinion of Underwriters' Counsel. At the Closing Date,
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Underwriters' Counsel shall have furnished to the Underwriters an opinion, dated
the Closing Date, with respect to the validity of the Securities, the Prospectus
and the Registration Statement and such other related matters as the
Underwriters may reasonably request, and Underwriters' Counsel
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shall have received such documents and information as it may reasonably request
to enable it to pass upon such matters.
(c) Opinion of Company Counsel. At the Closing Date, counsel for the
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Company shall have furnished to the Underwriters an opinion, dated the Closing
Date, in form and substance satisfactory to 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 State of Alabama,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to execute and deliver, and
perform its obligations under, this Agreement, the Indenture and the
Securities; and the Company is not required by the nature of its business
to be licensed or qualified as a foreign corporation in any other state or
jurisdiction, except where the failure to be so qualified would not have a
material adverse effect on the Company;
(ii) to the best of such counsel's knowledge and 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 that, 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;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Securities have been duly authorized, executed,
authenticated, issued and delivered by the Company and constitute valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their terms, except as may be limited by the Exceptions,
and are entitled to the benefits of the Indenture; and the Securities
conform to the description thereof in the Prospectus;
(v) the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its terms,
except as may be limited by the Exceptions; the Indenture conforms to the
description thereof in the Prospectus; and the Indenture has been duly
qualified under the 1939 Act;
(vi) the issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture 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
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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 actions result
in any violation of the provisions of the Organizational Documents or any
statute, rule, regulation or other law, or any order or judgment known to
such counsel, of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(vii) the Alabama Commission Order is in full force and effect and is
sufficient to permit the Company to enter into and perform the transactions
contemplated by this Agreement, the Securities and the Indenture, and no
other consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over the Company or any of its properties is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture, except such
as have been obtained under the 1933 Act and the 1939 Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or blue sky laws
in connection with the Underwriters' purchase and distribution of the
Securities;
(viii) Energen Corporation is the sole owner of all of the issued
and outstanding common stock of the Company and has filed an annual
exemption statement on Form U-3A-2 pursuant to Rule 2 under the 1935 Act,
and Energen Corporation and each of its subsidiaries are exempt from all of
the provisions of the 1935 Act except Section 9(a)(2) thereof;
(ix) the Registration Statement, at the Effective Date, and the
Prospectus, at the time it was filed with the SEC pursuant to Rule 424(b)
under the 1933 Act (except in each case as to financial statements and
other financial and statistical data contained or incorporated by reference
therein, upon which such counsel need not pass), complied as to form in all
material respects with the requirements of the 1933 Act and the 1939 Act
and the respective rules and regulations of the SEC thereunder; each
Incorporated Document as originally filed pursuant to the 1934 Act (except
as to financial statements and other financial and statistical data
contained or incorporated by reference therein, upon which such counsel
need not pass) complied as to form when so filed in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
SEC thereunder; the Registration Statement has become, and on the Closing
Date is, effective under the 1933 Act and, to the best of such counsel's
knowledge, no proceedings for a stop order with respect thereto are
threatened or pending under Section 8 of the 1933 Act; and nothing has come
to the attention of such counsel that has caused it to believe that the
Registration Statement (except as to financial statements and other
financial and statistical data contained or incorporated by reference
therein, upon which such counsel need not pass), at the Effective Date,
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 Prospectus (except as to
financial statements and other financial and statistical data contained or
incorporated by reference therein, upon which such counsel need not pass),
at the time it was filed with the SEC pursuant to Rule 424(b) under the
1933 Act or on the Closing Date, included or includes any untrue
11
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(x) Such counsel does not know of any franchise, contract or other
document required to be described in, or filed as an exhibit to, the
Registration Statement or incorporated by reference in the Prospectus that
are not so described or filed or incorporated by reference as required; and
the statements included or incorporated by reference in the Prospectus
describing material contracts or agreements relating to the Company fairly
summarize such matters.
In rendering such opinion, such counsel (A) may rely as to matters involving the
application of laws of any jurisdiction other than the State of Alabama or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to Underwriters' Counsel, (B) may rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials and (C) need not pass upon any information
contained or incorporated by reference in the Registration Statement or the
Prospectus relating to the Insurer, the Financial Guaranty Insurance Policy or
DTC.
(d) Letter of Accountants. On the date of this Agreement, at a time
---------------------
prior to the execution of this Agreement, and at the Closing Date, the
Accountants shall have furnished to the Underwriters letters, dated the date of
this Agreement and the Closing Date, respectively, in form and substance
satisfactory to the Underwriters, confirming that they are independent
accountants within the meaning of the 1933 Act and the rules and regulations of
the SEC thereunder with respect to the Company and stating in effect that:
(i) in the opinion of the Accountants, the financial statements and
schedules included or incorporated by reference in the Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1934 Act and the
respective rules and regulations of the SEC thereunder; and
(ii) on the basis of a reading of the unaudited financial statements
included or incorporated by reference in the Prospectus and the latest
available interim unaudited financial statements of the Company, the
performance of the procedures specified by the American Institute of
Certified Public Accountants for a review of any such financial statements
as described in Statement on Auditing Standards No. 71, inquiries of
officials of the Company responsible for financial and accounting matters
and a reading of the minutes of meetings of the stockholder, the Board of
Directors of the Company and the Audit and Finance Committees of Energen
Corporation through a specified date not more than five days prior to the
date of the applicable letter, nothing came to the attention of the
Accountants that caused them to believe that: (A) any material
modification should be made to the unaudited financial statements included
or incorporated by reference in the Prospectus for them to be in conformity
with generally accepted accounting principles or any such financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act or the 1934 Act and the
respective
12
rules and regulations of the SEC thereunder; (B) for the twelve months
ended as of the date of the most recent available financial statements of
the Company, there were any decreases in operating revenues, operating
income, other income or net income as compared with the comparable period
of the preceding year; or (C) at the date of the most recent available
financial statements of the Company and at a subsequent date not more than
five days prior to the date of such letter, there was any change in the
capital stock or long-term debt of the Company or any decrease in its net
assets as compared with the amounts shown in the most recent balance sheet
included or incorporated by reference in the Prospectus, except in all
instances for changes or decreases that the Prospectus discloses have
occurred or may occur, or for changes or decreases that are described in
such letter that are reasonably satisfactory to the Underwriters.
Such letter shall also cover such other matters as the Underwriters shall
reasonably request, including but not limited to the Company's "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the Company's financial statements included or incorporated by
reference in the Prospectus and any other information of an accounting,
financial or statistical nature included therein.
(e) No Material Changes. (i) The Company shall not have sustained,
-------------------
since the date of the most recent 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,
otherwise than as set forth in the Prospectus, and (ii) since the respective
dates as of which information is given in the Prospectus, there shall not have
been any change in the capital stock, long-term debt or net assets 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 in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the Underwriters' judgment 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) Ratings; No Downgrading of Ratings or Credit Review. Xxxxx'x
---------------------------------------------------
Investors Service and Standard & Poor's shall have publicly assigned to the
Securities ratings of Aaa and AAA, respectively, which ratings shall be in full
force and effect at the Closing Date; and, on or after the date of this
Agreement, (i) no downgrading shall have occurred in the rating accorded any of
the Company's securities by any Rating Agency and (ii) no Rating Agency shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's securities.
(g) Nonoccurrence of Certain Events. On or after the date of this
-------------------------------
Agreement, there shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally by the SEC, any
national securities exchange or The Nasdaq Stock Market; (ii) a suspension or
material limitation in trading in the Company's securities by the SEC, any
national securities exchange or The Nasdaq Stock Market; (iii) a general
moratorium on commercial banking activities declared by Federal or New York
State authorities; or (iv) the
13
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iv), in the Underwriters' judgment,
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) Officers' Certificate. At the Closing Date, the Company shall
---------------------
have furnished or caused to be furnished to the Underwriters a certificate of
the Chairman of the Board or the President of the Company and the principal
financial or accounting officer of the Company satisfactory to the Underwriters
as to the accuracy of the representations and warranties of the Company herein
on and as of the Closing Date, as to the performance by the Company of all of
its obligations hereunder to be performed on or prior to the Closing Date, as to
the matters set forth in Sections 5(a) and 5(e) hereof and as to such other
matters as the Underwriters may reasonably request.
(i) Effectiveness of Financial Guaranty Insurance Policy; Opinion of
----------------------------------------------------------------
Insurer's Counsel. At the Closing Date, the Financial Guaranty Insurance Policy
-----------------
shall have been duly authorized, executed and delivered by the Insurer to the
insurance trustee named therein and shall be in full force and effect and the
Underwriters shall have received an opinion of counsel for the Insurer, dated
the Closing Date, covering such matters as the Underwriters may reasonably
request in form and substance reasonably satisfactory to the Underwriters.
In case any of the conditions specified above in this Section 5 shall
not have been fulfilled, this Agreement may be terminated by the Underwriters
upon mailing or otherwise delivering written notice thereof to the Company. Any
such termination shall be without liability of either party to the other party
except as otherwise provided in Section 4(j) hereof and except for any liability
under Section 6 hereof.
6. Indemnification and Contribution
--------------------------------
(a) Indemnification by Company. The Company will indemnify and hold
--------------------------
harmless each Underwriter for and against any losses, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the 1933
Act or otherwise, insofar as such losses, damages or liabilities (or actions or
claims 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, and will reimburse each
Underwriter for any legal or other expenses incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred (including such losses, damages, liabilities or expenses
to the extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 6(c) hereof) any such settlement is
effected with the written consent of the Company); provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration
14
Statement, the Prospectus or any such amendment or supplement thereto in
reliance upon and in conformity with the Underwriter Information.
(b) Indemnification by the Underwriters. Each Underwriter will
-----------------------------------
indemnify and hold harmless the Company for and against any losses, damages or
liabilities to which the Company may become subject, under the 1933 Act or
otherwise, insofar as such losses, damages or liabilities (or actions or claims
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 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, the Registration Statement, the Prospectus or any such amendment or
supplement, in reliance upon and in conformity with the Underwriter Information
in respect of such Underwriter, and will reimburse the Company for any legal or
other expenses incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred (including such
losses, damages, liabilities or expenses to the extent of the aggregate amount
paid in settlement of any such action or claim, provided that (subject to
Section 6(c) hereof) any such settlement is effected with the written consent of
the Underwriters).
(c) General. Promptly after receipt by an indemnified party under
-------
Section 6(a) or 6(b) hereof 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 Section 6(a) or 6(b) hereof, notify such indemnifying
party in writing of the commencement thereof, but the failure so to notify such
indemnifying party shall not relieve such indemnifying party from any liability
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have to any such indemnified party
otherwise than under Section 6(a) or 6(b) hereof. In case any such action shall
be brought against any such indemnified party and it shall notify such
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party under Section 6(a) or (b) hereof similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of such indemnified
party, be counsel to such indemnifying party), and, after notice from such
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under Section 6(a) or 6(b) hereof for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. If at any time such indemnified party shall have requested such
indemnifying party under Section 6(a) or 6(b) hereof to reimburse such
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) or (b) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of such request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party
15
in accordance with such request for reimbursement prior to the date of such
settlement. No such indemnifying party shall, without the written consent of
such 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 such indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of such indemnified party from all liability
arising out of such action or claim and (B) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any such indemnified party. In no event shall such indemnifying parties be
liable for the fees and expenses of more than one counsel, including any local
counsel, for all such indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) Contribution. If the indemnification provided for in this Section
------------
6 is unavailable to or insufficient to indemnify or hold harmless an indemnified
party under Section 6(a) or 6(b) hereof in respect of any losses, damages or
liabilities (or actions or claims in respect thereof) referred to therein, then
each indemnifying party under Section 6(a) or 6(b) hereof shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
damages or liabilities (or actions or claims 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 hand from the offering
of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if such indemnified
party failed to give the notice required under Section 6(c) hereof and such
indemnifying party was prejudiced in a material respect by such failure, then
each such 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 on the other hand in connection with the statements or
omissions that resulted in such losses, damages or liabilities (or actions or
claims 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 hand 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 of the Company on
the one hand and the Underwriters on the other hand 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 statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to above in this Section 6(d). The amount paid or payable by such an
indemnified party as a result of the losses, damages or liabilities (or actions
or claims in respect thereof) referred to above in this Section 6(d) shall be
deemed to include any legal or other expenses incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no Underwriter shall be
required to contribute any amount in excess of the amount
16
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 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this Section 6(d) to contribute are several in proportion to
their respective underwriting obligations with respect to the Securities and not
joint.
(e) Scope of Obligations. 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 officer,
director, employee, agent or other representative and to each person, if any,
who controls any Underwriter within the meaning of the 1933 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 officer and director of the Company
who signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the 1933 Act.
7. Representations, Warranties and Agreements to Survive Delivery. 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 the Company or 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, any officer, director, employee, agent or other
representative of the Underwriters or any controlling person of any Underwriter,
or the Company, any officer or director of the Company who signed the
Registration Statement or any controlling person of the Company, and shall
survive delivery of and payment for the Securities.
8. Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to X.X. Xxxxxxx & Sons, Inc. at the address set forth on the first page
of this Agreement, attention of Xxxxxx X. Xxxxx, Managing Director and to Xxxxxx
X. Xxxxx & Co., L.P. at the address set forth on the first page of this
Agreement, attention of Xxxxx X. Xxxxxxxx, Partner; and notices to the Company
shall be directed to Alabama Gas Corporation, 605 Xxxxxxx Xxxxxxxxx, Xx.
Boulevard North, Birmingham, Alabama 35203-2707, attention of Xxxxxxxx X.
Xxxxxxx, Executive Vice President and Chief Financial Officer.
9. Miscellaneous. The rights and duties of the parties to this Agreement
-------------
shall, pursuant to New York General Obligations Law Section 5-1401, be governed
by the law of the State of New York. This Agreement shall be binding upon, and
inure solely to the benefit of, the Company and the Underwriters except to the
extent provided in Section 6(e) hereof, 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 person who purchases
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of
17
such purchase. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument. The word "or" shall not be exclusive, and all references in
this Agreement to the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or subdivision hereof, and the captions to such Sections and
subdivisions are for convenience only and shall not affect the construction
hereof.
18
If the foregoing is in accordance with your understanding, please sign and
return to the Company the enclosed duplicate hereof, whereupon this Agreement
will become a binding agreement between the Company and the several Underwriters
in accordance with its terms.
Very truly yours,
Alabama Gas Corporation
By:
---------------------------
Name:
Title:
Accepted as of the date hereof:
X.X. Xxxxxxx & Sons, Inc.
By:
----------------------------
Name:
Title:
Xxxxxx X. Xxxxx & Co., L.P.
By:
----------------------------
Name:
Title:
19
SCHEDULE I
Principal Principal
Amount of Amount of
[ ]% Notes due [ ]% Notes due
September 1, 2016 September 1, 2031
To Be To Be
Underwriter Purchased Purchased
------------------------------------ ----------------- -----------------
X.X. Xxxxxxx & Sons, Inc............ $ $
Xxxxxx X. Xxxxx, & Co., L.P.........
----------- -----------
Total........................ $40,000,000 $35,000,000
----------- -----------
