Exhibit 1.01
UNDERWRITING AGREEMENT
For the Purchase of
$30,000,000 Aggregate Principal Amount of
First Mortgage Bonds, 7.90% Series Due September 15, 2030
of Laclede Gas Company
Laclede Gas Company
x/x Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Section 1. Purchase and Sale. On the basis of the representations and
warranties, and subject to the terms and conditions set forth in this
agreement ("Underwriting Agreement"), each of the Underwriters (as defined
in Section 2 hereof) shall purchase from Laclede Gas Company ("Company"),
severally and not jointly, and the Company shall sell to each of the
Underwriters, the principal amount of the Company's First Mortgage Bonds,
7.90% Series Due September 15, 2030 ("Bonds"), set forth opposite the name
of such Underwriter in Schedule I hereto at the price of 99.007% of the
principal amount of the Bonds plus accrued interest, if any, from the
fifteenth day of the month in which such Bonds are issued to the Closing
Date (as defined in Section 6(a) hereof).
Section 2. Underwriters and Representative. The term "Underwriters,"
as used herein, shall be deemed to mean the several persons, firms or
corporations named in Schedule I hereto, and the term "Representative," as
used herein, shall be deemed to mean the representative or representatives
of such Underwriters by whom or on whose behalf this Underwriting Agreement
is signed. If there shall be only one person, firm or corporation named in
such Schedule I, the term "Underwriters" and the term "Representative," as
used herein, shall mean that person, firm or corporation. All obligations of
the Underwriters are several and not joint.
Section 3. Description of Bonds. The Company proposes to issue and
sell the Bonds under its Mortgage and Deed of Trust, dated as of February 1,
1945, as supplemented and as it will be further supplemented by a
supplemental indenture ("Supplemental Indenture") relating to the Bonds to
be dated as of the fifteenth day of the calendar month in which the Bonds
are issued. Such Mortgage and Deed of Trust as supplemented and to be
supplemented by the Supplemental Indenture is hereinafter referred to as the
"Mortgage." The Bonds are more fully described in the Basic Prospectus (as
defined in Section 4(a) hereof).
Section 4. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) It has filed with the Securities and Exchange Commission
("Commission") a registration statement (No. 333-40362) for the
registration of
the Bonds under the Securities Act of 1933, as amended ("Securities
Act"), and the registration statement has become effective. The
prospectus for First Mortgage Bonds forming a part of such registration
statement, as it heretofore initially became effective, including all
documents incorporated therein by reference at that time pursuant to
Item 12 of Form S-3 under the Securities Act, is hereinafter referred
to as the "Basic Prospectus." In the event that the Basic Prospectus
shall have been amended, revised or supplemented (but excluding any
supplement to the Basic Prospectus relating solely to First Mortgage
Bonds that are not included in the Bonds) prior to the date of this
Underwriting Agreement, or if the Company files any documents pursuant
to Section 13 or 14 of the Securities Exchange Act of 1934, as amended
("Exchange Act"), after the time the registration statement initially
became effective and up to the date of this Underwriting Agreement (but
excluding documents incorporated therein by reference relating solely
to First Mortgage Bonds that are not included in the Bonds), which
documents are deemed to be incorporated by reference in the Basic
Prospectus, the term "Basic Prospectus" as used herein shall also mean
such prospectus as so amended, revised or supplemented. Such
registration statement, as it initially became effective and as it may
have been amended by any amendment thereto (including for these
purposes an amendment to any document incorporated by reference in the
Basic Prospectus), and the Basic Prospectus, as it shall be
supplemented to reflect the terms of offering and sale of the Bonds by
a prospectus supplement ("Prospectus Supplement") to be filed with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424"),
are hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively. After the date of this Underwriting
Agreement, the Company will not file (i) without prior notice to the
Representative and to Winthrop, Stimson, Xxxxxx & Xxxxxxx ("Counsel for
the Underwriters"), (A) any amendment to the Registration Statement
(excluding any amendment relating solely to First Mortgage Bonds that
are not included in the Bonds) or supplement to the Prospectus or (B)
prior to the time the Prospectus is filed with the Commission pursuant
to Rule 424, any document that is to be incorporated by reference in,
or any supplement (including the Prospectus Supplement) to, the Basic
Prospectus or (i) any such amendment, supplement or document to which
the Representative or such counsel shall reasonably object in writing.
For purposes of this Underwriting Agreement, any document that is
filed with the Commission after the date of this Underwriting
Agreement and is incorporated by reference in the Prospectus (except
documents incorporated by reference relating solely to First
Mortgage Bonds that are not included in the Bonds) pursuant to Item
12 of Form S-3 under the Securities Act shall be deemed a
supplement to the Prospectus.
(b) When the Prospectus is filed with the Commission pursuant to
Rule 424 and at the Closing Date, the Registration Statement and the
Prospectus, as they may then be amended or supplemented, and the
Mortgage will fully comply in all
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material respects with the applicable provisions of the Securities Act
and the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), and the rules and regulations of the Commission under such Acts,
or pursuant to such rules and regulations will be deemed to comply
therewith; on the date it became effective the Registration Statement
did not, and, on the date that any post-effective amendment to the
Registration Statement became or becomes effective (including the
filing with the Commission under the Exchange Act of the Annual Report
on Form 10-K of the Company for any fiscal year ending after the
Registration Statement initially became effective, but excluding any
post-effective amendment relating solely to First Mortgage Bonds that
are not included in the Bonds), the Registration Statement, as amended
by such post-effective amendment, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; at the time the Prospectus is filed
with the Commission pursuant to Rule 424 and on the Closing Date, the
Prospectus, as it may then be amended or supplemented, will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and at such
time and on such dates the documents then incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act
will fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the
Commission thereunder, and, when read together with the Prospectus, or
the Prospectus as it may then be amended or supplemented, 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, in the light of the circumstances under which they
are made, not misleading; provided, however, that the foregoing
representations and warranties in this Section 4(b) shall not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by or through the
Representative on behalf of any Underwriter for use in connection with
the preparation of the Registration Statement or the Prospectus, as
they may be amended or supplemented, or to any statements in or
omissions from the Statement of Eligibility on Form T-1 under the Trust
Indenture Act of the trustee under the Mortgage.
(c) The consummation by the Company of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, the Company's Articles of Incorporation, as amended, or its By-
Laws, as currently in effect, or any indenture, mortgage, deed of trust
or other agreement or instrument to which the Company is now a party by
succession or otherwise, or any order, rule or regulation applicable to
the Company of any court or of any federal or state regulatory board or
body or administrative agency having jurisdiction over the Company or
its property.
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(d) Since the most recent date as of which information is given
in the Prospectus, there has not been any change in the business,
properties or condition (financial or otherwise) of the Company except
changes arising from transactions in the ordinary course of business,
none of which alone or in the aggregate has had a material adverse
effect on the business, properties or condition (financial or
otherwise) of the Company, in each case other than as referred to in,
or contemplated by, the Prospectus.
Section 5. Offering. Forthwith upon the execution of this
Underwriting Agreement, the Representative, acting on behalf of the
Underwriters, shall advise the Company whether or not a public offering of
the Bonds is to be made, and, if so, shall furnish to the Company (which
information shall be confirmed in writing as soon as practicable thereafter)
(a) the information with respect to any proposed reoffering of the Bonds and
related matters that are required to complete the Prospectus Supplement or
any post-effective amendment to the Registration Statement that may be
required and a copy of any "agreement among underwriters," and (b) if a
post-effective amendment to the Registration Statement is required, a
consent, if necessary, to the filing of the post-effective amendment and an
acceptable power-of-attorney, if necessary, authorizing an available
individual to sign the consent on its behalf. Such information, consent and
power-of-attorney may be provided by telex or facsimile transmission (in the
case of such consent or power-of-attorney, followed promptly by an executed
copy). Nothing in this Underwriting Agreement shall be construed to require
that the Underwriters make any such public offering on a "fixed price"
basis; and the Representative agrees to notify the Company in writing of any
change in the plan of distribution of the Bonds that would require a
supplement to the Prospectus or an amendment to the Registration Statement.
Section 6. Time and Place of Closing.
(a) Upon delivery of the Bonds to or for the account of the
Representative for the accounts of the respective Underwriters (against
receipt therefor signed by the Representative, acting on behalf of the
Underwriters), payment for the Bonds shall be made to the Company or
its order by wire transfer of immediately available funds to an account
designated in writing by the Company. Such delivery and payment shall
be made through the facilities of The Depository Trust Company, New
York, New York ("DTC") at 10:00 A.M., New York time, on a date that is
three Business Days (as defined below) after the date of this
Underwriting Agreement, or in such other manner or at such other time
and/or date as the Representative and the Company may agree upon in
writing, unless postponed in accordance with the provisions of Section
6(b) hereof. Delivery of the documents required by Section 8 hereof
shall be made at such time and date at the offices of Winthrop,
Stimson, Xxxxxx & Xxxxxxx, One Battery Park Plaza, New York, New York,
or at such other location as the Representative and the Company may
agree upon in writing. The time and date of such delivery and payment
are herein called the "Closing Date." The Bonds shall be registered in
the name of "Cede & Co.," as nominee of DTC, and delivered to DTC or
its
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custodian not later than 3:00 P.M., New York time, on the last Business
Day preceding the Closing Date and the Company agrees to make the Bonds
available to the Representative for checking not later than 2:30 P.M.,
New York time, at the offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx
referred to above, or at such other place, time and/or date as may be
agreed upon between the Company and the Representative. "Business Day"
shall mean any day on which the Commission and banks in The City of New
York are open.
(b) If any Underwriter shall fail or refuse (whether for some
reason sufficient to justify its termination of its obligations to
purchase or otherwise) to purchase the Bonds that it had agreed to
purchase, the Company shall immediately notify the Representative, and
the Representative may, within 24 hours of receipt of such notice,
procure some other responsible party or parties satisfactory to the
Company, to purchase or agree to purchase such Bonds on the terms
herein set forth; and, if the Representative shall fail to procure a
satisfactory party or parties to purchase or agree to purchase such
Bonds on such terms within such period after the receipt of such
notice, then the Company shall be entitled to an additional period of
24 hours within which to procure another party or parties to purchase
or agree to purchase such Bonds on the terms set forth in this
Underwriting Agreement. In any such case, either the Representative or
the Company shall have the right to postpone the Closing Date for a
period not to exceed three full Business Days from the date determined
as provided in this Section 6(b), in order that the necessary changes
in the Registration Statement and the Prospectus and any other
documents and arrangements may be effected. If the Representative and
the Company shall fail to procure a satisfactory party or parties, as
above provided, to purchase or agree to purchase such Bonds, then this
Underwriting Agreement shall terminate. In the event of any such
termination, the Company shall not be under any liability to any
Underwriter (except to the extent, if any, provided in Section 7(h)
hereof), nor shall any Underwriter (other than an Underwriter who shall
have failed or refused to purchase Bonds without some reason sufficient
to justify, in accordance with the terms of this Underwriting
Agreement, its termination of its obligations under this Underwriting
Agreement) be under any liability to the Company. Nothing contained in
this Section 6(b) shall release any defaulting Underwriter from its
liability to the Company for damages occasioned by its default under
this Underwriting Agreement.
Section 7. Covenants of the Company. The Company agrees:
(a) To deliver to the Representative a signed copy of the
registration statement relating to the Bonds as originally filed and of
all amendments thereto or a conformed copy thereof certified by an
officer of the Company to be in the form filed.
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(b) To deliver to the Underwriters, through the Representative,
as many copies of the Prospectus, and any amendments or supplements
thereto, as the Representative may reasonably request.
(c) To cause the Prospectus, and any amendments or supplements
thereto, to be filed with the Commission pursuant to Rule 424 as soon
as practicable and advise the Representative promptly of the issuance
of any stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings therefor
of which the Company shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time (not exceeding nine months) after
the Prospectus has been filed with the Commission pursuant to Rule 424
as the Underwriters are required by law to deliver a prospectus
relating to the Bonds, if (i) any event relating to or affecting the
Company or of which the Company shall be advised in writing by the
Representative shall occur as a result of which in the Company's
opinion the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances 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 Securities Act or the Exchange Act or
in each case the rules and regulations of the Commission thereunder, to
amend or supplement the Prospectus or the Registration Statement, as
the case may be, by either (A) preparing and filing with the Commission
and furnishing to the Representative at the Company's expense a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or the Registration
Statement, as the case may be, or (B) making an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act that will correct such
statement or omission or effect such compliance; provided, however,
that should such event relate solely to the activities of any of the
Underwriters, then the Underwriters shall assume the expense of
preparing any such amendment or supplement. In case any Underwriter is
required to deliver a prospectus relating to the Bonds after the
expiration of nine months from the date the Prospectus is filed with
the Commission pursuant to Rule 424, the Company, upon the request of
the Representative, will furnish to the Representative, at the expense
of such Underwriter, a reasonable quantity of a supplemented or amended
Prospectus or supplements or amendments to the Prospectus complying
with Section 10(a) of the Securities Act.
(e) During such period of time after the date the Prospectus is
filed with the Commission pursuant to Rule 424 as a prospectus relating
to the Bonds is required to be delivered under the Securities Act, to
file promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the Exchange Act.
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(f) To make generally available to its security holders, as soon
as practicable, an earning statement (which need not be audited) in
reasonable detail covering a period of at least twelve months beginning
after the "effective date of the registration statement" within the
meaning of Rule 158 under the Securities Act, which earning statement
shall be in such form, and be made generally available to security
holders in such a manner, so as to comply with the requirements of
Section 11(a) of the Securities Act and Rule 158 promulgated under the
Securities Act.
(g) At any time within six months after the date of this
Underwriting Agreement, to execute such documents, furnish such proper
information as may be lawfully required and otherwise cooperate in
qualifying the Bonds for offer and sale under the blue-sky laws of such
jurisdictions as the Representative may reasonably designate; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to service of
process under the laws of any jurisdiction, or to meet any other
requirements deemed by the Company to be unduly burdensome.
(h) Except as herein otherwise provided, to pay all expenses and
taxes (except transfer taxes) in connection with (i) the preparation
and filing by it of the Registration Statement and all other documents
prepared in order to carry out the transactions contemplated thereby,
(ii) the issuance and delivery of the Bonds, (iii) the preparation,
execution, filing and recording of the Supplemental Indenture, (iv) the
qualification of the Bonds under the blue-sky laws of various
jurisdictions up to a maximum qualification cost to it of $3,500, (v)
the fees and disbursements of Counsel for the Underwriters in
connection with the preparation of a blue-sky survey in connection with
the Bonds and (vi) the printing and delivery to the Underwriters,
through the Representative, of reasonable quantities of copies of the
Registration Statement and the Prospectus, and any amendment or
supplement thereto, except as otherwise provided in Section 7(d)
hereof. The Company shall not, however, be required to pay any amount
for any expenses of the Representative or any of the Underwriters,
except that, if this Underwriting Agreement shall be terminated in
accordance with the provisions of Section 8, 9 or 11 hereof, or if this
Underwriting Agreement is terminated pursuant to Section 6(b) hereof
and could have been terminated in accordance with the provisions of
Section 8, 9 or 11 hereof, the Company will reimburse the
Representative for (A) the fee and disbursements of Counsel for the
Underwriters, whose fee and disbursements the Underwriters agree to pay
in any other event except to the extent set forth in clauses (iv) and
(v) of the preceding sentence, and (B) their reasonable out-of-pocket
expenses, in an amount not exceeding $10,000 incurred in contemplation
of the performance of this Underwriting Agreement. The Company shall
not in any event be liable to any of the Underwriters for damages on
account of loss of anticipated profits.
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(i) Not to sell any additional First Mortgage Bonds (other than
First Mortgage Bonds of one or more other series and having a maturity
or maturities different from the date of maturity of the Bonds and with
respect to which the Company shall have entered into a contract for
sale on the same day as the date of this Underwriting Agreement)
without the consent of the Representative until the earlier to occur of
(i) the Closing Date and (ii) in the case of an initial reoffering at a
fixed price by the Underwriters, the date of the termination of the
fixed price offering restrictions applicable to the Underwriters. The
Representative agrees to notify the Company of such termination if it
occurs prior to the Closing Date.
Section 8. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Bonds shall be subject to
the accuracy of the representations and warranties made herein on the part
of the Company and to the following conditions:
(a) The Prospectus, and any amendments or supplements thereto,
shall have been filed with the Commission pursuant to Rule 424 prior to
5:30 P.M., New York time, on the first Business Day after the date of
this Underwriting Agreement or at such later time and date as may be
approved by the Representative.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the Closing
Date, and at the Closing Date the Representative shall have received a
certificate, dated the Closing Date and signed by an officer of the
Company, to the effect that no such stop order has been or is in effect
and that no proceedings for such purpose are pending before, or to the
knowledge of the Company threatened by, the Commission.
(c) Prior to 5:00 P.M., New York time, on the first Business Day
after the date of this Underwriting Agreement, or such later time and
date as may be approved in writing from time to time by the
Representative, there shall have been issued, and on the Closing Date
there shall be in full force and effect, an appropriate order or orders
of the Missouri Public Service Commission authorizing the issuance and
sale of the Bonds on the terms herein set forth or contemplated.
(d) At the Closing Date, the Representative shall have received
from Xxxxxx X. XxXxxxx, Xx., Esq., Senior Vice President-Finance and
General Counsel of the Company or from Xxxx X. Xxxxxxx, Esq., Secretary
and Associate Counsel of the Company, and from Winthrop, Stimson,
Xxxxxx & Xxxxxxx, Counsel for the Underwriters, opinions (with a
conformed copy of each for each of the Underwriters) in substantially
the form and substance set forth in Exhibits A and B hereto,
respectively, (i) with such changes therein as may be agreed upon by
the Company and the Representative, with the approval of Counsel for
the Underwriters, and (ii) if the Prospectus shall be supplemented
after the Prospectus shall have been filed with the Commission pursuant
to Rule 424, with changes therein to reflect such supplementation.
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(e) At or prior to the Closing Date, the Representative shall
have received from Deloitte & Touche LLP a letter (with a conformed
copy for each of the Underwriters) to the effect that: (i) they are
independent certified public accountants with respect to the Company
within the meaning of the Securities Act and the applicable rules and
regulations of the Commission thereunder; (ii) in their opinion, the
consolidated financial statements audited by them and included or
incorporated by reference in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and in each case the rules and
regulations of the Commission thereunder; (iii) on the basis of a
reading of the latest available unaudited amounts of utility operating
income and net income included or incorporated by reference in the
Registration Statement and the related unaudited consolidated financial
statements from which these amounts were derived, the latest available
unaudited consolidated financial statements of the Company and its
subsidiaries, the minutes of the meetings of the Board of Directors and
the stockholders of the Company since the close of the most recent
audited fiscal year to a specified date not more than five days prior
to the Closing Date, and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an
examination made in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of significance
with respect to the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representations as to the sufficiency of
such procedures for the several Underwriters' purposes), nothing has
come to their attention that caused them to believe that (A) any
material modifications should be made to the unaudited consolidated
financial statements included or incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles or any such consolidated financial statements do
not comply with the applicable accounting requirements of the
Securities Act or the Exchange Act or in each case the rules and
regulations of the Commission thereunder and (B) during the period (1)
from the date of the most recent consolidated balance sheet of the
Company and its subsidiaries included or incorporated by reference in
the Prospectus to a specified date not more than five days prior to the
Closing Date, there was any change in the capital stock or long-term
debt of the Company, or decrease in its net assets or (2) consisting of
the twelve months ended as of the date of the Company's most recently
available unaudited financial statements, there were any decreases as
compared with the comparable period of the preceding year, in the
Company's operating revenues, net income and earnings available for
common stock, except in all instances for changes or decreases that the
Prospectus discloses have occurred or may occur, for declarations of
dividends, for the repayment of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or purchase
of preferred stock for sinking fund purposes, or for changes or
decreases as set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) they have read the unaudited
ratios of earnings to fixed charges and the most recent earnings
coverage ratios included or incorporated by reference in the Prospectus
containing such ratios and have found such ratios to be in agreement
with the
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appropriate records of the Company and the computations to be
arithmetically correct. Such letter shall also cover such other matters
as the Representative may reasonably request in form and substance
reasonably satisfactory to the Representative.
(f) At the Closing Date, the Representative shall have received a
certificate, dated the Closing Date and signed by an officer of the
Company, to the effect that since the most recent date as of which
information is given in the Prospectus, there has not been any change
in the business, properties or condition (financial or otherwise) of
the Company except changes arising from transactions in the ordinary
course of business, none of which alone or in the aggregate has had a
material adverse effect on the business, properties or condition
(financial or otherwise) of the Company, in each case other than as
referred to in, or contemplated by, the Prospectus.
(g) All legal proceedings to be taken in connection with the
issuance and sale of the Bonds shall have been satisfactory in form and
substance to Counsel for the Underwriters.
If any of the conditions specified in this Section 8 shall not have
been fulfilled, this Underwriting Agreement may be terminated by the
Representative with the consent of the Underwriters, who may include the
Representative, which have agreed to purchase in the aggregate 50% or more
of the principal amount of the Bonds, upon notice thereof to the Company.
Any such termination shall be without liability of any party to any other
party, except as otherwise provided in Section 7(h) hereof.
Section 9. Conditions of Company's Obligations. The obligations of the
Company hereunder shall be subject to the following conditions:
(a) The Prospectus, and any amendments or supplements thereto,
shall have been filed with the Commission pursuant to Rule 424 prior to
5:30 P.M., New York time, on the first Business Day after the date of
this Underwriting Agreement, or such later time and date as may be
approved by the Company.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the Closing
Date, and no proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date.
(c) Prior to 5:00 P.M., New York time, on the first Business Day
after the date of this Underwriting Agreement, or such later time and
date as may be approved from time to time by the Company, there shall
have been issued, and on the Closing Date there shall be in full force
and effect, an appropriate order or orders of the Missouri Public
Service Commission authorizing the issuance and sale of the Bonds on
the terms herein set forth or contemplated and containing no provision
unacceptable to the Company by reason of the fact that it is, in the
judgment of the Company, materially adverse to the Company, it being
understood that no order heretofore issued contains any such
unacceptable provision.
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In case any of the conditions specified in this Section 9 shall not
have been fulfilled, this Underwriting Agreement may be terminated by the
Company upon notice thereof to the Representative. Any such termination
shall be without liability of any party to any other party, except as
otherwise provided in Section 7(h) hereof.
Section 10. Indemnification and Contribution.
(a) The Company shall indemnify, defend and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of Section 15 of the Securities Act from and against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each such Underwriter
and controlling person for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by
them in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a preliminary prospectus
relating to the Bonds, or in the Basic Prospectus (if used prior to the
date the Prospectus is filed with the Commission pursuant to Rule 424),
or in the Registration Statement or the Prospectus, as amended or
supplemented (if any amendments or supplements thereto shall have been
furnished), or in the Company's latest available Annual Report to
Shareholders, to the extent portions thereof are incorporated by
reference, directly or indirectly, in a preliminary prospectus relating
to the Bonds, or in the Basic Prospectus (if used prior to the date the
Prospectus is filed with the Commission pursuant to Rule 424), or in
the Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading; provided,
however, that the indemnity agreement contained in this Section 10(a)
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by or
through the Representative on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility on Form T-1 under the Trust Indenture Act of the trustee
under the Mortgage; provided further, however, that the indemnity
agreement contained in this Section 10(a) shall not inure to the
benefit of any Underwriter or of any person controlling any Underwriter
on account of any such losses, claims, damages, liabilities, expenses
or actions arising from the sale of Bonds to any person if there shall
not have been given or sent to such person on behalf of such
Underwriter (i) with or prior to the written confirmation of the sale
to such person, a copy of the Prospectus as then amended or
supplemented (exclusive for this purpose of any amendment or supplement
11
relating to any offering of First Mortgage Bonds that are not included
in the Bonds and of any document incorporated by reference pursuant to
Item 12 of Form S-3 under the Securities Act), unless the failure to so
give or send resulted from the Company's failure to comply with Section
7(b) hereof, and (ii) as soon as available after such written
confirmation, a copy of any amendment or supplement to the Prospectus
(exclusive for this purpose of any document incorporated by reference
pursuant to Item 12 of Form S-3 under the Securities Act) that the
Company shall thereafter furnish, pursuant to Section 7(d) hereof,
relating to an event occurring prior to the payment for and delivery to
such person of the Bonds involved in such sale. The indemnity agreement
of the Company contained in this section and the representations and
warranties of the Company contained in Section 4 hereof shall remain
operative and in full force and effect regardless of any investigation
made by or on behalf of any Underwriter or any such controlling person
and shall survive the delivery of the Bonds.
(b) Each Underwriter shall indemnify, defend and hold harmless
the Company, its directors and officers, and each person who controls
any of the foregoing within the meaning of Section 15 of the Securities
Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law and
shall reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with defending
any action, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, as amended or supplemented
(if any amendments or supplements thereto shall have been furnished),
or 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, if such statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company by or through the Representative on behalf of such
Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement
to either thereof. The indemnity agreement of the respective
Underwriters contained in this Section 10(b) shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Company, its directors or officers, any such Underwriter,
or any such controlling person, and shall survive the delivery of the
Bonds.
(c) The Company and the several Underwriters each shall, upon the
receipt of notice of the commencement of any action against it or any
person controlling it as aforesaid, in respect of which indemnity may
be sought on account of any indemnity agreement contained herein,
promptly give written notice of the commencement thereof to the party
or parties against whom indemnity shall be sought hereunder, but the
omission so to notify the indemnifying party or parties of any such
action shall not relieve such indemnifying party or parties from any
12
liability that it or they may have to the indemnified party under such
indemnity agreement except to the extent that it has or they have been
prejudiced in any material respect by such omission or from any
liability that it or they may have to such indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any
such action shall be so given, any such indemnifying party shall be
entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any of such other indemnifying
parties) the defense of such action, in which event such defense shall
be conducted by counsel chosen by such indemnifying party or parties
and satisfactory to the indemnified party or parties, in its or their
reasonable judgment, who shall be defendant or defendants in such
action, and such indemnified party or parties shall bear the fees and
expenses of any additional counsel retained by it or them; provided,
however, that if any such indemnifying party shall elect not to assume
the defense of such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and expenses of
any counsel retained by such indemnified party or parties; provided
further, however, that if the defendants in any such action include
both such indemnifying party or parties and such indemnified party or
parties, then, at the request of such indemnified party or parties,
such indemnifying and indemnified party or parties shall mutually
select special counsel (whose fees and disbursements shall be shared
equally by such indemnifying and indemnified party or parties) for the
sole purpose of determining if a conflict of interest is or may be
involved if the same counsel were to represent both such indemnifying
party or parties and such indemnified party or parties and, if such
special counsel determines that such a conflict does or may exist, such
indemnified party or parties shall have the right to select separate
counsel satisfactory to such indemnifying party or parties to
participate in the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that such indemnifying
party or parties shall not be liable for the expenses of more than one
separate counsel representing such indemnified party or parties who are
parties to such action plus any local counsel retained by such
indemnified party or parties in its or their reasonable judgment).
Notwithstanding the foregoing, such indemnifying party or parties shall
not be liable for any settlement of any action or claim effected
without its or their consent, which consent shall not be unreasonably
withheld.
(d) If the indemnification provided for in Section 10(a) or (b)
hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such
losses, claims, damages, liabilities and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering
of the Bonds pursuant to this Underwriting Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law,
or if such indemnified party failed to give the notice required under
Section 10(c) hereof and such indemnifying party was prejudiced in a
material respect by such
13
failure, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Bonds pursuant to
this Underwriting Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Bonds pursuant to his Underwriting Agreement (before deducting
expenses) received by the Company and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of
the Prospectus Supplement, bear to the aggregate initial public
offering price of the Bonds as set forth on such cover. The relative
fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or by 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 10(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 10(d). The aggregate amount of
losses, claims, damages, liabilities and expenses incurred by an
indemnified party and referred to above in this Section 10(d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 10(d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Bonds 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 any such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 10(d), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Securities Act or Section 10 of
the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the
Company who shall have signed the Registration Statement and each
person, if any, who controls the Company within the meaning of
14
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company.
Section 11. Termination. This Underwriting Agreement may be
terminated at any time prior to the Closing Date by the Representative with
the consent of Underwriters, who may include the Representative, which have
agreed to purchase in the aggregate 50% or more of the principal amount of
the Bonds, if, prior to such time, (i) trading in securities on the New York
Stock Exchange shall have been generally suspended, (ii) minimum or maximum
ranges for prices shall have been generally established on the New York
Stock Exchange by the New York Stock Exchange, the Commission or other
governmental authority, (iii) a general banking moratorium shall have been
declared by federal or New York State authorities, (iv) there shall have
been any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading and no implication of a
possible downgrading of such rating), (v) there shall have occurred any
outbreak of hostilities, or escalation thereof, or other national or
international calamity or crisis, the effect of which on the financial
markets of the United States shall be such as to make it impracticable or
inadvisable for the Underwriters in the reasonable judgment of the
Representative to proceed with the public offering or the delivery of the
Bonds on the terms and in the manner contemplated by the Prospectus, (vi)
there shall have occurred any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company the effect of which is, in the reasonable judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery of the Bonds or (vii) in the
reasonable judgment of the Representative, the subject matter of any
amendment or supplement (prepared by the Company) to the registration
statement relating to the Bonds, the Basic Prospectus, the Registration
Statement or the Prospectus (except for information relating to the public
offering of the Bonds or to the activity of any Underwriter or Underwriters)
filed or issued after the effectiveness of this Underwriting Agreement by
the Company shall have materially impaired the marketability of the Bonds.
Any termination hereof pursuant to this Section 11 shall be without
liability of any party to any other party, except as otherwise provided in
Section 7(h) hereof.
Section 12. Miscellaneous. This Underwriting Agreement shall be a New
York contract and its validity and interpretation shall be governed by the
laws of the State of New York. This Underwriting Agreement shall inure to
the benefit of the Company, the Underwriters (including any parties referred
to in Section 6(b) hereof) and, with respect to the provisions of Section 10
hereof, such parties and each director, officer and controlling person
described in Section 10 hereof, and their respective successors. Nothing
herein is intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of any provision in this Underwriting Agreement. The term
"successor" as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any of the Bonds from any of the
Underwriters.
15
Section 13. Notices. All communications hereunder shall be in writing
and, if to the Underwriters, shall be mailed or delivered, or sent by telex
or facsimile transmission confirmed in writing, to the Representative at the
address set forth below, or, if to the Company, shall be mailed or
delivered, or sent by telex or facsimile transmission confirmed in writing,
to it x/x Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxx X. Xxxxxxx, Esq., with a copy to
Laclede Gas Company, 000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Office of the General Counsel.
16
If this Underwriting Agreement is in accordance with your understanding
of our agreement, please indicate your acceptance thereof in the space
provided below for that purpose, whereupon this letter and your acceptance
shall constitute a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
X. X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
The foregoing Underwriting Agreement is hereby accepted as of the date set
forth below.
LACLEDE GAS COMPANY
By /s/ Xxxxxxx X. Xxxxxx
Dated: September 21, 2000
17
SCHEDULE I
Principal
Amount
Name of Underwriter of Bonds
X. X. Xxxxxxx & Sons, Inc. $30,000,000
Total............................................ $30,000,000
Exhibit A
[Opinion of Company Counsel]
[Letterhead of the Company]
September 2_, 2000
X. X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
I am Senior Vice President-Finance and General Counsel of Laclede Gas
Company (the "Company") and have acted in that capacity in connection with
the issuance and sale by the Company pursuant to the Underwriting Agreement
dated September 21, 2000 (the "Underwriting Agreement") between the Company
and you of $30,000,000 principal amount of its First Mortgage Bonds, 7.90%
Series due September 15, 2030 (the "Bonds") issued under the Company's
Mortgage and Deed of Trust, dated as of February 1, 1945, to State Street
Bank and Trust Company of Missouri, N.A. (who is now acting, under the terms
of said Mortgage and Deed of Trust, in place of Mississippi Valley Trust
Company), as trustee (the "Trustee"), as supplemented and amended by all
indentures supplemental thereto, including the Twenty-Fifth Supplemental
Indenture, dated as of September 15, 2000 (the "Twenty-Fifth Supplemental
Indenture") (the Mortgage and Deed of Trust as so supplemented and amended
being hereinafter referred to as the "Mortgage").
I am familiar with the Articles of Incorporation, as amended, and the
By-Laws, as currently in effect, of the Company and the records of various
corporate and other proceedings relating to the authorization, issuance and
sale of the Bonds. I have participated in the preparation of (a) the Twenty-
Fifth Supplemental Indenture and (b) the Underwriting Agreement, and I am
familiar with the Registration Statement and the Prospectus (such terms
having the same meaning herein as in the Underwriting Agreement) filed under
the Securities Act of 1933, as amended (the "Securities Act"), with the
Securities and Exchange Commission (the "Commission") with respect to the
issuance and sale of the Bonds.
I have examined the Annual Report on Form 10-K of the Company for the
fiscal year ended September 30, 1999 (the "Annual Report"), the Quarterly
Reports on Form
A-1
10-Q of the Company for the quarterly periods ended December 31, 1999, March
31, 2000 and June 30, 2000 and the Current Reports on Form 8-K filed on
October 29, 1999, January 28, 2000, September 14, 2000 and September 20,
2000 (together with the Annual Report, the "Exchange Act Documents"), each
as filed with the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated or deemed to be incorporated
by reference in the Prospectus.
I have examined a copy of an order dated July 24, 2000 from the
Commission to the Company relating to the effectiveness of the Registration
Statement and the qualification of the Mortgage under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). I have also examined
such other documents and satisfied myself as to such other matters as I have
deemed necessary to render this opinion. In the course of such examination,
I have assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity of all documents submitted to me as
originals, the conformity to original documents of all documents submitted
to me as certified or photostatic copies, and the authenticity of the
originals of such latter documents. I have also relied upon information
submitted to me by certain officers of the Company with respect to the
existence or non-existence of certain facts that form the basis for the
opinions set forth herein. Although I have not conducted any independent
investigations of the accuracy of various of the matters covered by such
information supplied by officers of the Company, I have no reason to believe
that any of the matters covered thereby are inaccurate. I have also relied
on certain documents, instruments and certificates of public officials. I
have not examined the Bonds, except a specimen thereof, and have relied upon
a certificate of the Trustee as to the authentication thereof. Upon the
basis of my familiarity with the foregoing and with the Company's properties
and affairs generally, and as limited by the foregoing qualifications and
limitations, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Missouri.
2. The Company is a public utility corporation, is duly authorized by
its Articles of Incorporation, as amended, to conduct the utility business
that it is described in the Prospectus as conducting, and, by virtue of its
possession of valid and subsisting licenses, franchises and permits, and its
compliance with the laws of the State of Missouri, is duly authorized to
conduct such business in that State. In this regard, it should be noted that
the Company has not renewed its franchise in Florissant, Missouri, which
franchise expired in 1992; since that time, the Company has continued to
provide service in that community without a formal franchise.
3. The Company has good and sufficient title to the properties
described as owned by it in and as subject to the lien of the Mortgage,
subject only to excepted encumbrances as defined in the Mortgage, and to
minor defects and encumbrances customarily found in properties of like size
and character that do not materially impair the use of such properties by
the Company. Subject to paragraph 4 hereof, the description of such
properties set forth in the Mortgage is adequate to constitute the Mortgage
a lien thereon
A-2
and the Mortgage, subject only to minor defects and encumbrances and
excepted encumbrances of the character aforesaid, constitutes a valid,
direct and first mortgage lien upon such properties, which include
substantially all of the permanent physical properties and franchises of the
Company (other than those expressly excepted in the Mortgage). All permanent
physical properties and franchises (other than those expressly excepted in
or released from the Mortgage) that have been or hereafter may be acquired
by the Company after the date of the Twenty-Fifth Supplemental Indenture
have become or, upon such acquisition, will become subject to the lien of
the Mortgage, subject, however, to liens, defects and encumbrances, if any,
existing or placed thereon at the time of the acquisition thereof by the
Company and except as limited by bankruptcy law. This opinion, insofar as it
relates to the matters set forth in this paragraph 3 and in paragraph 4
hereof, is, in addition to being subject to excepted encumbrances as defined
in the Mortgage, in all respects: (a) subject to the fact that the Company's
leasehold interest in its general offices located at 000 Xxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx may be subordinated to certain liens and deeds of trust; (b)
subject to minor defects of title and to prior encumbrances of minor
importance upon certain of the properties in which the Company has acquired
gas storage easements, leases, and oil and other rights in the Company's
underground gas storage area, which have no materially adverse effect on the
Company's storage of gas; and (c) subject to defects of title with respect
to certain real estate of minor importance acquired by the Company since
February 1, 1945.
4. The Twenty-Fifth Supplemental Indenture has been recorded in the
office of the Secretary of State of the State of Missouri pursuant to
Section 443.451 of the Missouri Revised Statutes, and the liens created by
the Twenty-Fifth Supplemental Indenture have become effective as to and
enforceable against third parties. All permanent physical properties and
franchises of the Company (other than those expressly excepted in or
released from the Mortgage) presently owned by the Company are subject to
the lien of the Mortgage, subject to minor defects and encumbrances,
excepted encumbrances of the character referred to in paragraph 3 hereof,
and subject to the last sentence of paragraph 3 hereof.
5. The Mortgage has been duly and validly authorized by all necessary
corporate action of the Company, has been duly and validly executed and
delivered by the Company, and is a valid and binding instrument enforceable
against the Company in accordance with its terms, assuming the due
authorization, execution and delivery thereof by the Trustee and except as
the same may be limited by certain laws and judicial decisions of the United
States of America and the State of Missouri (where the property covered
thereby is located) affecting the remedies for the enforcement of the
security provided for therein, which laws do not, in my opinion, make
inadequate the remedies necessary for the realization of the benefits of
such security, and subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The Mortgage has been duly
qualified under the Trust Indenture Act.
A-3
6. The statements made in the Prospectus under the captions
"Description of First Mortgage Bonds" and " Description of the Bonds,"
insofar as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
7. The Bonds have been duly authorized by the Company and, assuming
due authentication thereof by the Trustee and upon payment therefor and
delivery thereof in accordance with the Underwriting Agreement, subject to
the qualifications in paragraph 5 above, will constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefit and security of the
Mortgage equally and ratably (except as set forth in the Bonds) with the
bonds of other series now outstanding under the Mortgage.
8. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
9. The Registration Statement has become and is effective under the
Securities Act; to the best of my knowledge, no proceedings for a stop order
with respect thereto are pending or threatened under Section 8(d) of the
Securities Act.
10. The Missouri Public Service Commission has issued an appropriate
order or orders authorizing, to the extent, in my opinion, such
authorization is necessary, the execution and delivery of the Underwriting
Agreement by the Company, and no other approval or consent of any
governmental body (other than in connection or compliance with the
provisions of the securities or blue-sky laws of any jurisdiction) is
required for the execution and delivery of the Underwriting Agreement by the
Company.
I have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except insofar as such statements relate to me and as and to the
extent expressly set forth herein. In the course of the preparation of the
Registration Statement and the Prospectus, I and other members of the
Company's legal department (the "Legal Department") participated in
conferences with certain of the Company's officers and employees, with
representatives of Deloitte & Touche LLP, the independent accountants for
the Company, with your representatives and with your counsel. Based on my
examination of the Registration Statement and the Prospectus, and the
investigations made in connection with the preparation of the Registration
Statement and the Prospectus and the Legal Department's participation in the
conferences referred to above, (i) I am of the opinion that the Registration
Statement, as of the date it was declared effective by the Commission, and
the Prospectus, as of the date it was filed with the Commission pursuant to
Rule 424(b) under the Securities Act, complied as to form in all material
respects with the requirements of the Securities Act and the Trust Indenture
Act and in each case the applicable rules and regulations of the Commission
thereunder and that the Exchange Act Documents complied as to form when
filed in all material respects with the requirements of the Exchange Act and
the applicable rules and regulations of the Commission thereunder, except
that in each case I
A-4
express no opinion with respect to the financial statements or schedules or
other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents,
and (ii) I have no reason to believe that the Registration Statement
(including such of the Exchange Act Documents incorporated by reference
therein as of the date it was declared effective by the Commission), as of
the date it was declared effective by the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus (including the Exchange Act Documents), as
of the date it was filed with the Commission pursuant to Rule 424(b) under
the Securities Act or as of the date hereof, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, except that in
each case I express no opinion or belief with respect to the financial
statements or schedules or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or
the Exchange Act Documents.
In passing upon the form of the Registration Statement, the form of the
Prospectus and the forms of the Exchange Act Documents, I necessarily assume
the correctness and completeness of the statements made by the Company and
information included therein and take no responsibility therefor, except
insofar as such statements relate to me and as set forth in paragraph 6
above.
I have examined the portions of the information contained in the
Registration Statement that are stated therein to have been made on my
authority and, upon my review thereof, I believe such information to be
correct. I have also examined the opinion of even date herewith rendered to
you by Winthrop, Stimson, Xxxxxx & Xxxxxxx, and I concur in the conclusions
expressed therein insofar as they involve questions of Missouri law.
I am also delivering this opinion to Winthrop, Stimson, Xxxxxx &
Xxxxxxx, who is entitled to rely upon this opinion to the same extent as if
such opinion were addressed to such firm. This opinion is rendered to
Winthrop, Stimson, Xxxxxx & Xxxxxxx and you in connection with the above-
described transaction. This opinion may not be relied upon by Winthrop,
Stimson, Xxxxxx & Xxxxxxx or you for any other purpose, or relied upon by or
furnished to any other person, firm or corporation, without my prior written
consent.
Very truly yours,
Xxxxxx X. XxXxxxx, Xx.
A-5
Exhibit B
[Letterhead of Counsel for the Underwriters]
September 2_, 2000
X. X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We have acted as your counsel in connection with the issuance and sale
by Laclede Gas Company, a Missouri corporation (the "Company") of
$30,000,000 principal amount of the Company's First Mortgage Bonds, 7.90%
Series Due September 15, 2030 (the "Bonds"), which have been issued under
the Company's Mortgage and Deed of Trust, dated as of February 1, 1945, to
State Street Bank and Trust Company of Missouri, N.A. (formerly Mississippi
Valley Trust Company), as trustee (the "Trustee"), as supplemented and
amended by all indentures supplemental thereto, including the Twenty-Fifth
Supplemental Indenture dated as of September 15, 2000 (such Mortgage and
Deed of Trust, as so amended and supplemented, being hereinafter referred to
as the "Mortgage"), pursuant to the Underwriting Agreement dated September
21, 2000 between you and the Company (the "Underwriting Agreement"). The
terms "Registration Statement" and "Prospectus" as used herein have the same
meanings as when used in the Underwriting Agreement.
We have reviewed the Registration Statement and the Prospectus, which
pursuant to Form S-3 under the Securities Act of 1933 (the "Securities Act")
incorporates or is deemed to incorporate by reference the Annual Report on
Form 10-K of the Company for the fiscal year ended September 30, 1999, the
Quarterly Reports on Form 10-Q of the Company for the quarterly periods
ended December 31, 1999, March 31, 2000 and June 30, 2000 and the Current
Reports on Form 8-K filed on October 29, 1999, January 28, 2000, September
14, 2000 and September 20, 2000 (collectively, the "Exchange Act
Documents"), each as filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"). In addition, we have reviewed, and have relied as to
matters of fact upon, the documents delivered to you at the closing (except
the Bonds, of which we have reviewed a specimen), and upon originals or
copies, certified or otherwise identified to
B-1
our satisfaction, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made
such other and further investigations as we have deemed relevant and
necessary as a basis for this opinion.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are members of the Bar of the State of New York and we do not
express any opinion herein as to any matters governed by any laws other than
the laws of the State of New York, the Federal laws of the United States of
America and, to the extent set forth herein, the laws of the State of
Missouri. With respect to legal matters governed by the law of the State of
Missouri, we understand that you are relying upon the opinion of Xxxxxx X.
XxXxxxx, Xx., Esq., the Senior Vice President-Finance and General Counsel of
the Company, of even date, addressed to you. We believe that such opinion is
satisfactory in form and that you are justified in relying thereon and we,
on our part, have relied solely on said opinion as to such matters. We do
not pass upon legal matters regarding title to the properties of the
Company, franchises and permits of the Company, the description of such
properties in the Mortgage, the nature and extent of the lien of the
Mortgage, the absence of liens and encumbrances prior to the lien of the
Mortgage, the recordation or filing of the Mortgage, the incorporation of
the Company or its qualification to do business in any jurisdiction, as to
which we understand you are relying upon the aforesaid opinion of Xx.
XxXxxxx.
Based upon the foregoing and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. The Company had full corporate power and authority to execute the
Mortgage, and the Mortgage has been duly authorized, executed and delivered
by the Company, has been qualified under the Trust Indenture Act of 1939
(the "Trust Indenture Act") and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company enforceable against the Company in accordance with
its terms, except as the same may be limited by the laws of the State of
Missouri (where the property covered thereby is located) affecting the
remedies for the enforcement of the security purported to be provided for
therein, by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, by general equitable principles (whether considered in a
proceeding in equity or at law) and by an implied covenant of
reasonableness, good faith and fair dealing.
2. The statements made in the Prospectus under the captions
"Description of First Mortgage Bonds" (other than under the heading
"Priority and Security," as to which we express no opinion) and "Description
of the Bonds," insofar as they purport to constitute summaries of the terms
of documents referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
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3. The Bonds have been duly authorized by the Company and, assuming
due authentication by the Trustee and upon payment and delivery in
accordance with the Underwriting Agreement, subject to the qualifications in
paragraph 1 above, will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their terms
and entitled to the benefit of the security purported to be afforded by the
Mortgage equally and ratably (except as set forth in the Bonds) with the
bonds of other series now outstanding under the Mortgage.
4. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
5. The Registration Statement has become and is effective under the
Securities Act; to the best of our knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8(d) of
the Securities Act.
6. The Missouri Public Service Commission has issued an appropriate
order or orders authorizing, to the extent, in our opinion, such
authorization is necessary, the execution and delivery of the Underwriting
Agreement by the Company, and no other approval or consent of any Federal or
Missouri governmental body is required for the execution and delivery of the
Underwriting Agreement by the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except insofar as such statements relate to us and as set forth in
paragraph 2 above. In the course of the preparation by the Company of the
Registration Statement and the Prospectus (excluding the Exchange Act
Documents), we participated in conferences with certain of its officers and
employees, with counsel for the Company, with representatives of Deloitte &
Touche LLP, the independent accountants who audited certain of the financial
statements included in the Exchange Act Documents, and with your
representatives. We did not participate in the preparation of, or in the
selection by the Company of the information included or excluded from, the
Exchange Act Documents. Based on our review of the Registration Statement,
the Prospectus and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents) and our participation in
the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of the date it was declared effective by the
Commission, and the Prospectus, as of the date it was filed with the
Commission pursuant to Rule 424(b) under the Securities Act, complied as to
form in all material respects with the requirements of the Securities Act
and the Trust Indenture Act and in each case the applicable rules and
regulations of the Commission thereunder, except that in each case we
express no opinion with respect to the financial statements or schedules or
other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents,
and (ii) we have no reason to believe that the Registration Statement
(including such of the Exchange Act Documents incorporated by reference
therein as of the date it was declared effective by the Commission), as of
the date it was declared
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effective by the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus (including the Exchange Act Documents), as of the date it was
filed with the Commission pursuant to Rule 424(b) under the Securities Act
or as of the date hereof, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except that in each case we
express no opinion or belief with respect to the financial statements or
schedules or other financial or statistical data contained or incorporated
by reference in the Registration Statement, the Prospectus or the Exchange
Act Documents.
In passing upon the form of the Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of
the statements made by the Company and the information included or
incorporated by reference in the Registration Statement and the Prospectus
and take no responsibility therefor, except insofar as such statements
relate to us and as set forth in paragraph 2 above.
This opinion is solely for your benefit in connection with the
Underwriting Agreement and the transactions contemplated thereunder and may
not be relied upon by you for any other purpose, or relied upon by or
furnished to any other person, without our prior written consent.
Very truly yours,
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