Exhibit 1.01
EXECUTION COPY
UNDERWRITING AGREEMENT
For the Purchase of
$50,000,000 Principal Amount of
First Mortgage Bonds, 6 5/8% Series Due June 15, 2016
of Laclede Gas Company
Laclede Gas Company
c/o Pillsbury Winthrop LLP
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, 6 5/8% Series due June 15, 2016 ("Bonds") set forth opposite the name
of such Underwriter in Schedule I hereto at the price of 97.9% of the
principal amount of the Bonds.
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." Payment of principal of and interest on the Bonds when due will
be guaranteed by a financial guaranty insurance policy in substantially the
form of Appendix A to the Prospectus Supplement (as defined in Section 4(a)
hereof) (the "Financial Guaranty Insurance Policy") to be issued by Ambac
Assurance Corporation ("Ambac") simultaneously with the delivery of the
Bonds. 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
Pillsbury Winthrop LLP ("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 (B) during the
time a prospectus relating to the Bonds is required to be delivered under
the Securities Act, any document that is to be incorporated by reference in,
or any supplement (including the Prospectus Supplement but excluding any
supplement relating solely to First Mortgage Bonds that are not included in
the Bonds) to, the Basic Prospectus or (ii) 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 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
2
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 Bylaws, 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.
(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
3
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 Pillsbury Winthrop LLP, 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 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 Pillsbury Winthrop LLP 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
4
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.
(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
5
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.
(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, (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, (vii) the rating of the Bonds by one or
more "nationally recognized statistical rating organizations" (as defined
for purposes of Rule 436(g) under the Securities Act) and (viii) the premium
with respect to, and any other fees and expenses in connection with, the
Financial Guaranty Insurance Policy. 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
6
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.
(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 General Counsel of the Company, and from Pillsbury Winthrop
LLP, 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.
7
(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, in the
case of clauses (1) and (2) above 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 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.
8
(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) At the Closing Date, the Financial Guaranty
Insurance Policy shall have been duly authorized, executed and delivered by
Ambac to the insurance trustee named therein and shall be in full force and
effect and the Representative shall have received (A) an opinion of counsel
for Ambac, dated the Closing Date, and (B) a certificate, dated the Closing
Date and signed by an officer of Ambac, in each case covering such matters
as the Representative may reasonably request in form and substantially
reasonably satisfactory to the Representative.
(h) 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.
9
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 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
10
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 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
11
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 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
12
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 20 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 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, 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.
13
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.
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 Laclede Gas Company, 000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Office of the General Counsel, with a copy to Pillsbury
Winthrop LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxx X. Xxxxxxx, Esq.
14
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
The foregoing Underwriting Agreement is hereby accepted as of
the date set forth below.
LACLEDE GAS COMPANY
By: X.X. Xxxxxx
____________________
Name: X. X. Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
Dated: June 21, 2001
SCHEDULE I
Principal
Amount
Name of Underwriter of Bonds
___________________ ____________
X.X. Xxxxxxx & Sons, Inc. $50,000,000
Total................................ $50,000,000
===========
Exhibit A
_________
[Opinion of Company Counsel]
[Letterhead of the Company]
June [ ], 2001
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 June 21, 2001 (the "Underwriting Agreement")
between the Company and you of $50,000,000 principal amount of its First
Mortgage Bonds, 6 5/8% Series due June 15, 2016 (the "Bonds") issued under
the Company's Mortgage and Deed of Trust dated as of February 1, 1945 to UMB
Bank & Trust, 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- Sixth Supplemental Indenture, dated as of
June 15, 2001 (the "Twenty-Sixth 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 Bylaws, 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-Sixth 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, 2000 (the "Annual Report"), the
Quarterly Reports on Form 10-Q of the Company for the quarterly periods
ended December 31, 2000 and March 31, 2001 (the "Quarterly Reports") and the
Current Reports on Form 8-K filed on October 27, 2000, January 25, 2001,
April 20, 2001, April 26, 2001 and May 18, 2001 (together with the Annual
Report and the Quarterly Reports, the "Exchange Act Documents"), each as
filed with the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and deemed to be incorporated by reference in
the Prospectus.
A-1
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 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-Sixth
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-2
(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-Sixth 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-Sixth 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, 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. The
Mortgage has been duly qualified under the Trust Indenture Act.
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.
A-3
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 counsel for the
Underwriters. 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 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 the Annual
Report), as of the date the Annual Report was filed with the Commission
under the Exchange Act, 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 (A) 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 or (B) the information under "The Insurance Policy
and the Insurer" and other descriptions of the Financial Guaranty Insurance
Policy (as defined in the Underwriting Agreement) contained in the
Prospectus and Appendix A to the Prospectus.
A-4
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 Pillsbury Winthrop LLP, and I concur in the conclusions expressed
therein insofar as they involve questions of Missouri law.
I am also delivering this opinion to Pillsbury Winthrop LLP,
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 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 my prior written consent.
Very truly yours,
Exhibit B
_________
[Letterhead of Counsel for the Underwriters]
June [ ], 2001
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
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
$50,000,000 principal amount of the Company's First Mortgage Bonds, 6 5/8%
Series due June 15, 2016 (the "Bonds"), which have been issued under the
Company's Mortgage and Deed of Trust dated as of February 1, 1945 to UMB
Bank & Trust, n.a. (formerly Mississippi Valley Trust Company), as trustee
(the "Trustee"), as supplemented and amended by all indentures supplemental
thereto, including the Twenty-Sixth Supplemental Indenture, dated as of June
15, 2001 (such Mortgage and Deed of Trust, as so amended and supplemented,
being hereinafter referred to as the "Mortgage"), pursuant to the
Underwriting Agreement dated June 21, 2001 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") is deemed to incorporate by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended September 30, 2000 (the "Annual
Report"), the Quarterly Reports on Form 10-Q of the Company for the
quarterly periods ended December 31, 2000 and March 31, 2001 (the "Quarterly
Reports") and the Current Reports on Form 8-K filed on October 27, 2000,
January 25, 2001, April 20, 2001, April 26, 2001 and May 18, 2001 (together
with the Annual Report and the Quarterly Reports, 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 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 review, 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.
B-1
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 laws 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.
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.
B-2
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 the Annual Report), as of the date the Annual Report was filed
with the Commission under the Exchange Act, 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 (A) 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 or (B) the information under "The Insurance
Policy and the Insurer" and other descriptions of the Financial Guaranty
Insurance Policy (as defined in the Underwriting Agreement) contained in the
Prospectus and Appendix A to the Prospectus.
B-3
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,
B-4
