Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
INDIANA GAS COMPANY, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-0793669
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1630 North Meridian Street
Indianapolis, Indiana 46202
(317) 926-3351
(Address, including zip code, and telephone
number, including area code, of
registrant's principal executive offices)
Niel C. Ellerbrook, President and
Chief Operating Officer
Indiana Gas Company, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202
(317) 321-0510
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Catherine L. Bridge, Esquire J. Michael Parish, Esquire
Barnes & Thornburg Reid & Priest LLP
1313 Merchants Bank Building 40 West 57th Street
11 South Meridian Street New York, New York 10019
Indianapolis, Indiana 46204
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.
/ X /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /__/
- -----------.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. /__/ ___________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
Type of each class Amount to be Proposed Proposed maximum Amount
of securities to be registered maximum offering aggregate offering registration fee
registered price per share (1) price (1)
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<S> <C> <C> <C> <C>
Debt Securities $95,000,000 100% $95,000,000 $28,788
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(1) Estimated solely for the purpose of calculating the registration fee.
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The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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[RED HERRING LANGUAGE ALONG LEFT MARGIN]
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THE SECURITIES IN
ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 30, 1997
$95,000,000
INDIANA GAS COMPANY, INC.
Debt Securities
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Indiana Gas Company, Inc. (the "Company") intends from time to time to
issue up to $95,000,000 aggregate principal amount of its Debt Securities (the
"Debt Securities") consisting of unsecured debentures, notes or other evidences
of indebtedness, in one or more series, on terms to be determined at the time or
times of sale. For each offering of Debt Securities for which this Prospectus is
being delivered, there will be an accompanying Prospectus Supplement (the
"Prospectus Supplement") that sets forth the title, aggregate principal amount,
maturity, rate or rates and times of payment of interest, any terms for
redemption at the option of the Company or the holders, any terms for sinking
fund payments, any listing on a national securities exchange and the initial
public offering price and any other terms in connection with the offering and
sale of such Debt Securities.
The Debt Securities may be sold directly by the Company or through
agents designated from time to time or through underwriters or dealers, which
may include Merrill Lynch & Co. or which may be a group of underwriters
represented by Merrill Lynch & Co. or other firms. If any agents of the Company
or any underwriters are involved in any sale of the Debt Securities in respect
of which this Prospectus is being delivered, the names of such agents or
underwriters, the principal amount, if any, to be purchased by the underwriters
and the compensation, if any, of such underwriters or agents will be set forth
in the Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is __________ ____, 1997.
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AVAILABLE INFORMATION
Indiana Gas Company, Inc. (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the "SEC"). Such
material may be inspected and copied at the public reference facilities
maintained by the SEC at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's regional offices located at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven
World Trade Center, Suite 1300, New York, New York 10048; and copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the SEC at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The SEC also maintains a Web site on the internet that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC, including the
Company. The address of such site is: http://www.sec.gov.
The Company has filed with the SEC a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the SEC. For further information, reference is
hereby made to the Registration Statement.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the SEC pursuant to the
Exchange Act are incorporated by reference into this Prospectus:
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1996, March 31, 1997 and June 30, 1997.
(c) The Company's Current Reports on Form 8-K dated October 2, 1996,
July 31, 1997, September 15, 1997 and October 8, 1997.
All documents filed by the Company pursuant to Sections 13, 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this Prospectus by
reference, other than exhibits to such documents unless specifically
incorporated by reference into such documents. Requests for such copies should
be directed to Vice President and Treasurer, Indiana Gas Company, Inc., 1630
North Meridian Street, Indianapolis, Indiana 46202-1496, telephone (317)
926-3351.
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CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE DEBT
SECURITIES. SPECIFICALLY, THE UNDERWRITERS MAY OVERALLOT IN CONNECTION WITH THE
OFFERING, AND MAY BID FOR, AND PURCHASE, THE DEBT SECURITIES IN THE OPEN MARKET.
FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
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THE COMPANY
The Company is an operating public utility engaged in the business of
providing gas utility service in the State of Indiana. The Company was
incorporated under the laws of the State of Indiana on July 16, 1945. All of the
outstanding shares of Common Stock of the Company are owned by Indiana Energy,
Inc., which is a public holding company.
At September 30, 1997, the Company supplied gas to approximately
477,000 customers in 281 communities in 48 of the 92 counties in the State of
Indiana. The Company's service area has a population of approximately 2 million
and contains diversified manufacturing and agricultural-related enterprises. The
principal industries served include automotive parts and accessories, feed,
flour and grain processing, metal castings, aluminum products, gypsum products,
electrical equipment, metal specialties and glass. The largest communities
served include Muncie, Anderson, Lafayette-West Lafayette, Bloomington, Terre
Haute, Marion, New Albany, Columbus, Jeffersonville, New Castle and Richmond.
The Company does not provide gas service in Indianapolis although its general
office is located in that city.
The address of the general office of the Company is 1630 North Meridian
Street, Indianapolis, Indiana 46202. Its telephone number is 317-926-3351.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges of the Company for the fiscal
years ended September 30, 1996, 1995, 1994, 1993 and 1992 was 4.6; 4.1; 4.1;
3.5; and 3.5, respectively. The ratio of earnings to fixed charges of the
Company for the twelve month period ended June 30, 1997 was 4.4. For the purpose
of computing the ratio of earnings to fixed charges, (i) earnings consist of net
income to which have been added income taxes, investment tax credits and fixed
charges and (ii) fixed charges include interest charges, amortization of debt
discount and expense, and the estimated interest component of rents.
USE OF PROCEEDS
The Company may use a portion of the net proceeds from the sale of the
Debt Securities offered hereby to refinance certain series of its long-term debt
(depending upon interest rates, market prices and other factors). The net
proceeds from the sale of Debt Securities not used to refinance such existing
indebtedness will be applied to finance, in part, the Company's continuing
construction program, for the payment of obligations incurred in connection with
such refinancing or such construction expenditures, and for other corporate
purposes.
Capital expenditures for the fiscal year 1997 were approximately
$72,000,000 and the Company expects that approximately $68,000,000 will be
expended in fiscal year 1998 and approximately $63,000,000 will be expended in
fiscal year 1999. In fiscal 1997, 58% of the Company's capital expenditures was
provided by funds generated internally (utility income less dividends plus
charges to utility income not requiring funds). In fiscal 1996, 70% of capital
expenditures was provided by funds generated internally.
DESCRIPTION OF THE DEBT SECURITIES
General
The Debt Securities will be issued under the Indenture dated as of
February 1, 1991, between the Company and First Trust National Association
(successor to Bank of America Illinois which in turn is successor to Continental
Bank, National Association), as Trustee (the "Trustee"), as supplemented and
modified by indentures supplemental thereto (the "Indenture"), a copy of which
is filed as an exhibit to the Registration Statement.
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The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the Indenture, including the
definitions therein of certain terms. Wherever particular Sections or defined
terms of the Indenture are referred to herein or in a Prospectus Supplement,
such Sections or defined terms are incorporated herein or therein by reference.
The Indenture provides that, in addition to the Debt Securities offered
hereby, additional debt securities (including both interest bearing and original
issue discount securities) may be issued thereunder, without limitation as to
the aggregate principal amount. The Indenture does not limit the amount of other
debt, secured or unsecured, which may be issued by the Company. The Debt
Securities are unsecured and rank equally with the Company's other unsecured
indebtedness.
Unless otherwise indicated in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form, without coupons, in
denominations of $1,000 or any multiple thereof, will be registered for transfer
and exchange, and principal and interest, if any, will be payable at the
Corporate Trust Offices of the Trustee in Chicago, Illinois and New York, New
York. No service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other government charge payable in connection therewith.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities ("Offered
Securities") in respect of which the same is being delivered: (1) the title of
the Offered Securities; (2) any limit on the aggregate principal amount of the
Offered Securities; (3) the date or dates on which the principal of the Offered
Securities will be payable; (4) the rate or rates at which the Offered
Securities will bear interest, if any, and the date or dates from which any such
interest will accrue; (5) the Interest Payment Dates on which any such interest
on the Offered Securities will be payable and the Regular Record Date for any
interest payable on any Offered Securities; (6) the place or places where the
principal of (and premium, if any) and interest, if any, on Offered Securities
will be payable, any Offered Securities may be surrendered for registration or
transfer, and Offered Securities may be surrendered for exchange; (7) the period
or periods within which, the price or prices at which, and the terms and
conditions upon which, the Offered Securities may be redeemed or purchased, in
whole or in part; (8) any mandatory or optional sinking fund or analogous
provisions; (9) the denominations in which any Offered Securities will be
issuable if other than denominations of $1,000 and any integral multiple
thereof; (10) the currency or currencies of payment of principal of (and
premium, if any) and interest on the Offered Securities will be payable (if
other than U.S. dollars); (11) if the amount of payments of principal of (and
premium, if any) or interest on the Offered Securities may be determined with
reference to an index, the manner in which such amounts will be determined; (12)
if other than the full principal amount thereof, the portion of the principal
amount of Offered Securities which will be payable upon declaration of
acceleration of Maturity; (13) any additional Events of Default or covenants of
the Company pertaining to the Offered Securities; and (14) any other terms of
the Offered Securities. Any such Prospectus Supplement will also describe any
special provisions for the payment of additional amounts with respect to the
Offered Securities.
Limitations on Liens
The Company has agreed that, so long as any of the Debt Securities are
outstanding, it will not create or suffer to be created or to exist any mortgage
on, pledge of, or other lien on or security interest in ("Lien"), any property
of the Company now owned or hereafter acquired, securing any indebtedness for
money borrowed ("Debt"), without first offering to the Holder of each Debt
Security an undertaking by the Company to make effective provision whereby such
Debt Security shall be equally and ratably secured with any and all such
indebtedness and with any other indebtedness similarly entitled to be equally
and ratably secured (which offer may only be accepted by any Holder in writing
delivered to the Company on or prior to the 30th day following the date of the
Company's notice) and in accordance with such provisions as are acceptable to
the Trustee. However, these restrictions on Liens do not apply to nor prevent
the creation or existence of: (i) certain governmental and similar Liens,
pledges and deposits described in the Indenture; leases made, or existing on
property acquired, in the ordinary course of business (including leases made in
sale and lease-back transactions); and zoning restrictions, easements, licenses
or restrictions on the use of real property or minor irregularities in the title
thereto, which do not, in the opinion of the Company, materially impair the use
of such property in the operation of the business of the Company or the value of
such property for the purpose of such
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business; (ii) Liens on any property acquired, constructed or improved by the
Company after the date of the Indenture which are created or assumed
contemporaneously with, or within 120 days after, such acquisition or completion
of such construction or improvement, or within six months thereafter pursuant to
a firm commitment for financing arranged with a lender or investor within such
120-day period, to secure or provide for the payment of all or any part of the
purchase price of such property or the cost of such construction or improvement
incurred after the date of the Indenture, or, in addition to Liens contemplated
by clause (iii) below, Liens on any property existing at the time of acquisition
thereof, so long as the Liens do not apply to any property theretofore owned by
the Company other than, in the case of any such construction or improvement, any
theretofore unimproved real property on which the property so constructed or the
improvement is located; (iii) existing Liens on any property or indebtedness of
a corporation which is merged with or into or consolidated with the Company;
(iv) Liens in favor of the United States of America, any State, or any
department, agency or instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price of the cost of constructing
or improving the property subject to such Liens, including, without limitation,
Liens to secure Debt of the pollution control or industrial revenue bond type;
(v) Liens to secure loans to the Company maturing within 12 months from the
creation thereof and made in the ordinary course of business; (vi) Liens on any
property (including any natural gas, oil or other mineral property) to secure
all or part of the cost of exploration, drilling or development thereof or to
secure Debt incurred to provide funds for any such purpose; and (vii) Liens for
the sole purpose of extending, renewing or replacing in whole or in part Debt
secured by any Lien referred to in clauses (i) through (vi) or this clause
(vii), so long as the principal amount of Debt secured thereby does not exceed
the principal amount of Debt so secured at the time of such extension, renewal
or replacement, and that such extension, renewal or replacement is limited to
all or a part of the property or indebtedness which secured the Lien so
extended, renewed or replaced (plus improvements on such property).
Events of Default
The following constitute Events of Default under the Indenture with
respect to Debt Securities of any series: (1) default in the payment of
principal of (or premium, if any, on) any Debt Security when due and the
continuation of such default for a period of three Business Days thereafter; (2)
default in the payment of interest on any Debt Security when due and the
continuation thereof for a period of 30 days; (3) default in the payment of any
sinking fund payment when due by the terms of the Debt Securities of that series
and the continuation of such default for a period of three Business Days
thereafter; (4) default in the performance or breach of any covenant or warranty
of the Company in the Indenture (other than a covenant or warranty included in
the Indenture solely for the benefit of one or more series of Debt Securities
other than such series), and the continuation thereof for 60 days after written
notice to the Company as provided in the Indenture; (5) default in the payment
of principal, premium, if any, or interest on (after any applicable period of
grace), or acceleration of, indebtedness evidenced by any other series issued
under the Indenture or any other mortgage, indenture or instrument, or other
evidence of indebtedness of the Company for borrowed money, in an aggregate
amount exceeding $10,000,000, which default is not rescinded or annulled, or
indebtedness not discharged, within 90 days after written notice to the Company
as provided in the Indenture; (6) certain events of bankruptcy, insolvency or
reorganization; and (7) any other Event of Default provided with respect to Debt
Securities of a particular series.
If an Event of Default with respect to the Debt Securities occurs and
is continuing, either the Trustee or the Holders of 33% in aggregate principal
amount of the outstanding Debt Securities may declare the principal amount of
all Debt Securities to be due and payable immediately. At any time after the
declaration of acceleration with respect to the Debt Securities has been made,
but before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in principal amount of the outstanding Debt Securities
may, under certain circumstances, rescind and annul such acceleration.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in principal amount of
the outstanding Debt Securities will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or
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power conferred on the Trustee, with respect to the Debt Securities. The right
of a Holder of any Debt Security to institute a proceeding with respect to the
Indenture is subject to certain conditions precedent, but each Holder has an
absolute right to receive payment of principal, premium, if any, and interest
when due and to institute suit for the enforcement of any such payment. The
Indenture provides that the Trustee, within 90 days after the occurrence of a
default with respect to the Debt Securities, is required to give the Holders of
the Debt Securities notice of such default, unless cured or waived; provided
that, except in the case of default in the payment of principal or of interest
on any Debt Security, the Trustee may withhold such notice if it determines it
is in the interest of such Holders to do so and the Trustee must withhold such
notice for 45 days in the event of a default described in clause 4 of the second
preceding paragraph.
The Company is required to furnish annually to the Trustee a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
Other than the restrictions on the Issuance of additional secured Debt
described above, there are no provisions of the Indenture which afford Holders
of the Debt Securities protection in the event of a highly leveraged transaction
involving the Company. However, such a transaction would require regulatory
approval and management of the Company believes that such approval would be
unlikely in a highly leveraged context.
Consolidation, Merger, Sale or Conveyance
The Indenture provides that the Company may, without the consent of the
holders of the Debt Securities, consolidate with, or convey, transfer or lease
its property and assets substantially as an entity to another corporation, only
if in any such case (i) if the Company is not the continuing corporation, the
successor corporation shall assume by a supplemental indenture the Company's
obligations under the Indenture and (ii) immediately after giving effect to such
transaction, no Event of Default, and no event which after notice or lapse of
time would become an Event of Default, shall have occurred and be continuing.
Modification of the Indenture
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
principal amount (calculated as provided in the Indenture) of the Outstanding
Securities, if all series of Outstanding Securities are affected, or the Holders
of a majority in aggregate principal amount of each series affected by such
modification, in case one or more, but less than all, of the series of
Outstanding Securities are affected, to modify the Indenture or any supplemental
indenture or the rights of the Holders of the Debt Securities of any series;
provided that no such modification shall, without the consent of the Holders of
each Debt Security affected thereby, change the maturity of any Debt Security,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable upon redemption of any
Debt Security, or reduce the overdue rate thereof or change the currency of
payment of principal or interest on any Debt Security or reduce the above stated
percentage in principal amount of Outstanding Securities the consent of the
Holders of which is required for modification or amendment of the Indenture or
for waiver of certain defaults, or change any obligation of the Company to
maintain an office or agency in each Place of Payment.
The Indenture also permits the Company and the Trustee to amend the
Indenture in certain circumstances without the consent of the Holders of any
Debt Securities to evidence the merger of the Company or the replacement of the
Trustee and for certain other purposes.
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EXPERTS
The audited financial statements and schedules incorporated by
reference into this Prospectus and elsewhere in the Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports included or incorporated by reference herein, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
The statements as to matters of law and legal conclusions under the
caption "Description of the Debt Securities" have been reviewed by Barnes &
Thornburg, counsel for the Company, and are made on the authority of said firm.
LEGAL OPINIONS
The validity of the Debt Securities will be passed upon for the Company
by Barnes & Thornburg, 1313 Merchants Bank Building, 11 South Meridian Street,
Indianapolis, Indiana 46204, counsel for the Company, and for the Underwriters
by Reid & Priest LLP, 40 West 57th Street, New York, New York 10019, which will
rely on Barnes & Thornburg as to matters of Indiana law.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to or through underwriters,
and also may sell the Debt Securities directly to other purchasers or through
dealers or agents. Such underwriters may include Merrill Lynch & Co. and/or a
group of underwriters represented by firms including Merrill Lynch & Co. Merrill
Lynch & Co. may also act as agent.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
In connection with the sale of the Debt Securities, underwriters may
receive compensation from the Company or from purchasers of the Debt Securities
for whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell the Debt Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of the Debt Securities may be deemed to be underwriters, and
any discounts or commissions received by them from the Company and any profit on
the resale of the Debt Securities by them may be deemed to be underwriting
discounts and commissions under the Act. Any such underwriter, dealer or agent
will be identified, and any such compensation received from the Company will be
described, in a Prospectus Supplement.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of the Debt
Securities may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Act, or to contribution from the
Company with respect to payments which the underwriters, dealers or agents may
be required to make in respect thereof.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase the Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Offered Securities shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which such purchaser is subject. The underwriters
and such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
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In connection with the offering of the Debt Securities, underwriters
may purchase and sell the Debt Securities in the open market. These transactions
may include overallotment and stabilizing transactions and purchases to cover
short positions credited by the underwriters in connection with the offering.
The underwriters also may impose a penalty bid, whereby selling concessions
allowed to broker-dealers in respect of the securities sold in the offering may
be reclaimed by the underwriters if such Debt Securities are repurchased by the
underwriters in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Debt Securities,
which may be higher than the price that might otherwise prevail in the open
market; and these activities, if commenced, may be discontinued at any time.
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[LEFT COLUMN]
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus Supplement or the
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized. This Prospectus Supplement and the
Prospectus do not constitute an offer to sell or the solicitation of an offer to
buy any securities other than the securities described in this Prospectus
Supplement or an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation is unlawful.
Neither the delivery of this Prospectus Supplement or the Prospectus nor any
sale made hereunder or thereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of the Company since
the date hereof or that the information contained herein or therein is correct
as of any time subsequent to the date of such information.
TABLE OF CONTENTS
Prospectus
Page
Available Information.........................................................2
Incorporation of Certain Documents
by Reference ...............................................................2
The Company ..................................................................3
Ratio of Earnings to Fixed Charges ...........................................3
Use of Proceeds ..............................................................3
Description of the Debt Securities ...........................................3
Experts ......................................................................7
Legal Opinions ...............................................................7
Plan of Distribution .........................................................7
<PAGE>
[RIGHT COLUMN]
$95,000,000
INDIANA GAS COMPANY, INC.
LOGO
-------------
PROSPECTUS
-------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses to be incurred in
connection with the issuance and distribution of the securities being
registered. All amounts shown are estimates, except the registration fee.
Securities and Exchange Commission
registration fee ....................................... $ 28,788
Fees and expenses of accountants ........................... 25,000
Fees and expenses of counsel................................ 75,000
Blue Sky and legal investment
fees and expenses....................................... 15,000
Fees and expenses of Trustee................................ 15,000
Printing expenses........................................... 20,000
Printing and engraving of Securities........................ 23,000
Rating agency fees.......................................... 20,000
Miscellaneous............................................... 15,212
--------
Total................................................... $ 237,000
========
Item 15. Indemnification of Directors and Officers.
The following discussion of the indemnification provisions of the
Indiana Business Corporation Law (Indiana Code ss. 23-1-37) (the "BCL"), which
applies to the Company, is a summary, is not meant to be complete, and is
qualified in its entirety by reference to the BCL.
The BCL authorizes a corporation to indemnify its directors,
officers, employees and agents against expenses in certain proceedings provided
such person (i) acted in good faith, (ii) reasonably believed if acting in an
official capacity, that his conduct was in the best interest of the corporation,
or in all other cases, that his conduct was at least not opposed to the
corporation's best interest, and (iii) in the case of criminal proceedings the
individual had reasonable cause to believe that his conduct was lawful, or had
no reasonable cause to believe that his conduct was unlawful. The BCL provides
further that a corporation shall indemnify its directors, officers, employees,
and agents who are wholly successful, on the merits or otherwise, against
expenses in the defense of such proceedings. The BCL provides, however, that
this indemnification should not be deemed exclusive of any other indemnification
rights provided by the Articles of Incorporation, By-Laws, resolution or other
authorizations adopted by a majority vote of the voting shares then issued and
outstanding.
Under the same statute, an Indiana corporation may purchase and
maintain insurance on behalf of any person who is or was a director, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of the BCL.
Section 8.08, Clause (b) of Article 8 of the Amended and Restated
Articles of Incorporation, as amended, of the Company provides as follows:
Clause (b). Indemnification of Corporate Persons and Related Matters.
The following provisions apply to the indemnification by the Corporation of
directors, members of any committees of the Board of Directors, officers,
employees and agents of the Corporation (collectively "Corporate Persons") and
matters related thereto:
S-1
<PAGE>
(i) Indemnification Standards. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil or criminal, administrative or investigative, formal or
informal (an "Action"), by reason of the fact that he is or was a
Corporate Person of the Corporation or is or was serving at the request
of the Corporation as a Corporate Person, partner, trustee or member or
in another authorized capacity (collectively, an "Authorized Capacity")
of or for another Legal Entity, whether or not organized or formed for
profit (collectively, "Another Entity"), against expenses (including
attorneys' fees) ("Expenses") and judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such Action, if such person (1) acted in good faith,
(2) acted in a manner he reasonably believed (A) with respect to
actions as a Corporate Person of the Corporation, to be in the best
interests of the Corporation, or (B) with respect to actions in an
Authorized Capacity of or for Another Entity, was not opposed to the
best interests of the Corporation, and (3) with respect to any criminal
Action, either (A) had reasonable cause to believe his conduct was
lawful, or (B) had no reasonable cause to believe his conduct was
unlawful. The termination of any Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, be determinative that the person did not meet the
standards for indemnification set forth in this Clause (b)(i) (the
"Indemnification Standards").
(ii) Indemnification in Successfully Defended Actions. To the
extent that a person who is or was a Corporate Person of the
Corporation, or is or was serving at the request of the Corporation in
an Authorized Capacity of or for Another Entity, has been successful on
the merits or otherwise in the defense of any Action referred to in
Clause (b)(i) above, or in the defense of any claim, issue or matter in
any such Action, the Corporation shall indemnify him against Expenses
actually and reasonably incurred by him in connection therewith.
(iii) Indemnification Procedure. Unless ordered by a court,
any indemnification of any person under Clause (b)(i) above shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the
circumstances because he met the Indemnification Standards. Such
determination shall be made (1) by the Board, by a majority vote of a
quorum consisting of Directors who are not at the time parties to the
Action involved ("Parties"); or (2) if a quorum cannot be obtained
under Subparagraph (1), by a majority vote of a Committee duly
designated by the Board (in which designation Directors who are Parties
may participate), consisting solely of two or more Directors who are
not at the time Parties; or (3) by written opinion of independent legal
counsel (A) selected by the Board or Committee in the manner prescribed
in Subparagraphs (1) or (2), respectively, or (B) if a quorum cannot be
obtained and a Committee cannot be designated under Subparagraphs (1)
and (2), respectively, selected by a majority of the full Board, in
which selection Directors who are Parties may participate; or (4) by
the Shareholders who are not at the time Parties, voting together as a
single class.
(iv) Advances for Expenses. Expenses reasonably incurred in
defending an Action by any person who may be entitled to
indemnification under Clause (b)(i) above may be paid by the
Corporation in advance of the final disposition of such Action if (1)
such person furnishes the Corporation with (A) a written affirmation of
his good faith belief that he has met, and (B) a written undertaking,
executed personally or on his behalf, to repay the advance (an
"Undertaking") if it is ultimately determined that he did not meet, the
Indemnification Standards; and (2) a determination is made, under the
procedure set forth in Clause (b)(iii) above, that the facts then known
to those making the determination would not preclude indemnification
under Clause (b)(i) above. An Undertaking must be an unlimited general
obligation of the person making it, but need not be secured and may be
accepted by the Corporation without further reference to such person's
financial ability to make repayment.
(v) Rights Not Exclusive. The indemnification provided in
these Articles (1) shall not be deemed exclusive of any other rights to
which a person seeking indemnification may be entitled under (A) any
law, (B) the By-Laws, (C) any resolution of the Board or of the
Shareholders, (D) any other
S-2
<PAGE>
authorization, whenever adopted, after notice, by a majority vote of
all Shares entitled to vote on General Voting Matters, or (E) the
articles of incorporation, code of by-laws or other governing
documents or any resolution of or other authorization by the
directors, shareholders, partners, trustees, members, owners or
governing body, of Another Entity; (2) shall inure to the benefit of
the heirs, executors and administrators of such person; and (3) shall
continue as to any such person who has ceased to be a Corporate
Person of the Corporation or to be serving in an Authorized Capacity
for Another Entity.
(vi) Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a Corporate
Person of the Corporation, or is or was serving at the request of the
Corporation in an Authorized Capacity of or for Another Entity,
against any liability asserted against and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the Corporation would have the power to indemnify him against such
liability under the provisions of this Clause (b).
(vii) Definition of Corporation. For the purposes of this Clause
(b), references to "the Corporation" include any constituent
corporation absorbed in a consolidation or merger (a "Constituent")
as well as the resulting or surviving corporation (the "Survivor"),
such that any person who is or was a Corporate Person of such a
Constituent, or is or was serving at the request of such Constituent
in an Authorized Capacity of or for Another Entity, shall stand in
the same position under the provisions of this Clause (b) with
respect to the Survivor as he would if he had served the Survivor, or
at his request, in the same capacity.
The Company maintains directors' and officers' liability insurance
with an annual aggregate limit of $35,000,000 for the current policy period,
subject to a $200,000 deductible at the corporate level, for each wrongful act
where corporate reimbursement is available to any director or officer. When
corporate reimbursement is not available as prescribed by applicable common law,
statutory law or the Company's governing documents, the insurer will reimburse
the directors and officers with no deductible with respect to losses sustained
by them for specified wrongful acts while acting in their capacities,
individually or collectively, as such directors or officers.
Item 16. List of Exhibits.
The exhibits required by this item are listed on page E-1.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes (1) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that clauses (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement; (2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and (3) to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
S-3
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
S-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indianapolis, State of Indiana, on October 30, 1997.
INDIANA GAS COMPANY, INC.
By: /s/ Lawrence A. Ferger
-----------------------------------
Lawrence A. Ferger, Chairman,
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
(1) Principal Executive Officer
/s/ Lawrence A. Ferger
- -------------------------------- Chairman and October 30, 1997
Lawrence A. Ferger Chief Executive Officer
(2) Principal Financial Officer
/s/ Niel C. Ellerbrook
- -------------------------------- President October 30, 1997
Niel C. Ellerbrook
(3) Principal Accounting Officer
/s/ Jerome A. Benkert, Jr.
- -------------------------------- Vice President and October 30, 1997
Jerome A. Benkert, Jr. Controller
S-5
<PAGE>
(4) A Majority of the Board of Directors
/s/ Paul T. Baker
- ---------------------------- Director )
Paul T. Baker )
)
)
/s/ Niel C. Ellerbrook )
- ---------------------------- Director )
Niel C. Ellerbrook )
)
)
/s/ Loren K. Evans )
- ---------------------------- Director )
Loren K. Evans )
)
)
/s/ Lawrence A. Ferger ) October 30, 1997
- ---------------------------- Director )
Lawrence A. Ferger )
)
)
/s/ Otto N. Frenzel III )
- ---------------------------- Director )
Otto N. Frenzel III )
)
)
/s/ John E. Worthen )
- ---------------------------- Director )
John E. Worthen )
S-6
<PAGE>
EXHIBIT INDEX
Exhibit 1 Proposed Form of Distribution Agreement between Indiana Gas
Company, Inc. and the Agents
Exhibit 4 Indenture dated as of February 1, 1991 between Indiana Gas
Company, Inc. and First Trust National Association
(successor to Bank of America Illinois which in turn is
successor to Continental Bank, National Association), as
Trustee (incorporated by reference to Exhibit 4(a) to
Indiana Gas Company, Inc.'s Current Report on Form 8-K
dated February 1, 1991, and filed February 15, 1991); First
Supplemental Indenture thereto dated as of February 15,
1991 (incorporated by reference to Exhibit 4(b) to Indiana
Gas Company, Inc.'s Current Report on Form 8-K dated
February 1, 1991 and filed February 15, 1991); Second
Supplemental Indenture thereto dated as of September 15,
1991 (incorporated by reference to Exhibit 4(b) to Indiana
Gas Company, Inc.'s Current Report on Form 8-K dated
September 15, 1991 and filed September 25, 1991); Third
Supplemental Indenture thereto dated as of September 15,
1991 (incorporated by reference to Exhibit 4(c) to Indiana
Gas Company, Inc.'s Current Report on Form 8-K dated
September 15, 1991 and filed September 25, 1991); Fourth
Supplemental Indenture thereto dated as of December 2,
1992, (incorporated by reference to Exhibit 4(b) to Indiana
Gas Company, Inc.'s Current Report on Form 8-K dated
December 1, 1992 and filed December 8, 1992); and Officers'
Certificate pursuant to Section 301 of the Indenture dated
as of April 5, 1995, (incorporated by reference to Exhibit
4(a) to Indiana Gas Company, Inc.'s Current Report on Form
8-K dated and filed April 5, 1995).
Exhibit 5 Opinion of Barnes & Thornburg with respect to the legality
of the securities registered hereunder.
Exhibit 12 Statement re computation of ratios
Exhibit 23(a) Consent of Arthur Andersen LLP
Exhibit 23(b) Consent of Barnes & Thornburg (included in opinion of
counsel filed as Exhibit 5).
Exhibit 24 Powers of Attorney
Exhibit 25 Form T-1 Statement of Eligibility of Trustee
E-1
Exhibit (1)
[Form]
INDIANA GAS COMPANY, INC.
$-----------------
Medium-Term Notes, Series __
Distribution Agreement
------------------
New York, New York
Ladies and Gentlemen:
Indiana Gas Company, Inc., an Indiana corporation (the
"Company"), proposes to issue and sell from time to time its Medium-Term Notes,
Series __ (the "Securities") in an aggregate amount up to $__________ and agrees
with each of you (individually, an "Agent", and collectively, the "Agents") as
set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each, a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. A Terms Agreement
may be an oral agreement confirmed in writing. This Distribution Agreement shall
not be construed to create either an obligation on the part of the Company to
sell any Securities or an obligation of any of the Agents to purchase Securities
as principal.
The Company will notify the Agents of their appointment of
such other agents, dealers or underwriters in accordance with the provisions of
this paragraph and of the principal amount of Securities sold to such other
agents, dealers or underwriters. Such other agents, dealers or underwriters will
be required (i) if in connection with a particular issuance of Securities only
<PAGE>
and not in connection with being named an Agent, to acknowledge delivery to it
of a letter from the Company substantially in the form of Exhibit A hereto, and
(ii) if such other agent, dealer or underwriter is to be named an Agent, to
deliver to the Company a letter substantially in the form of Exhibit B hereto,
to be signed and returned by the Company.
The Securities will be issued under an indenture, dated as of
February 1, 1991 (the "Indenture"), between the Company and Bank of America
Illinois, successor to Continental Bank, National Association, as Trustee (the
"Trustee"), as heretofore supplemented. The Securities shall have the
maturities, interest rates and redemption provisions, if any, and other terms
set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and the terms and
rights thereof established, from time to time by the Company in accordance with
the Indenture.
1. The Company represents and warrants to, and agrees
with, each Agent that:
(a) A registration statement on Form S-3 (File No.
333-_____ in respect of $95,000,000 aggregate principal amount of debt
securities, including the Securities, has been filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered to
such Agent, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, have
been declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Agents); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became effective
but excluding Form T-1, each as amended at the time such part of the
registration statement became effective, is hereinafter collectively called the
"Registration Statement"; the prospectus (including, if
-2-
<PAGE>
applicable, any prospectus supplement) relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein by reference;
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with Section 4(a) hereof) in
relation to Securities to be sold pursuant to this Agreement, in the form filed
or transmitted for filing with the Commission pursuant to Rule 424(b) under the
Act and in accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
-3-
<PAGE>
(c) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company (other than any changes in
long-term debt resulting from the issuance of Securities pursuant to this
Agreement) or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(d) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(e) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(f) The Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of Securities;
(g) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms
-4-
<PAGE>
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action result in
any violation of the provisions of the Articles of Incorporation, as amended, or
the By-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or the
Indenture, except such as have been, or will have been prior to the Commencement
Date (as defined in Section 3 hereof), obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the solicitation by such Agent of offers to purchase Securities
from the Company and with purchases of Securities by such Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(h) Neither the Company nor any of its subsidiaries is in
violation of its Articles of Incorporation or By-laws or in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(i) The statements set forth in the Prospectus under the
captions "Description of the Debt Securities" and "Supplemental Description of
the Notes", insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions "Plan of Distribution" and "Supplemental Plan
of Distribution", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
(j) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is subject, which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated
-5-
<PAGE>
financial position, shareholders' equity or results of operations of the Company
and its subsidiaries, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(k) The Company is not, and after giving effect to each
offering and sale of the Securities will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(l) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(m) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of Securities which
shall have been issued and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other than such Securities)
that shall have been issued and sold pursuant to the Registration Statement will
not exceed the amount of debt securities registered under the Registration
Statement;
(n) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(o) The order of the Indiana Utility Regulatory Commission
(the "Indiana Commission"), dated _________, authorizing the Company, among
other things, to issue up to $______________ of debt securities, including the
Securities (the "Indiana Commission Order"), is in full force and effect and is
not the subject of any appeal or other proceeding.
2. (a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, each
of the Agents hereby severally and not jointly agrees, as agent of the Company,
to use its reasonable efforts to solicit and receive offers to purchase the
Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. So long as this
Agreement shall remain in effect with respect to any Agent, the Company shall
not, without the consent of such Agent, solicit or accept offers to purchase, or
sell, any debt securities with a maturity at the time of original issuance of 9
months or more from date of issuance except pursuant to this Agreement
(including, without limitation, the third paragraph hereof), any Terms
Agreement, or except pursuant to a private
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placement not constituting a public offering under the Act or except in
connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may solicit and
accept offers to purchase, Securities directly on its own behalf in transactions
with persons other than broker-dealers, and, in the case of any such sale not
resulting from a solicitation made by any Agent, no commission will be payable
with respect to such sale. These provisions shall not limit Section 4(f) hereof
or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the payment in
each case therefor shall be as set forth in the Administrative Procedure
attached hereto as Annex II as it may be amended from time to time by written
agreement between the Agents and the Company (the "Administrative Procedure").
The provisions of the Administrative Procedure shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in the Administrative
Procedure. The Company will furnish to the Trustee a copy of the Administrative
Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As soon as
practicable, but in any event not later than one business day in New York City,
after receipt of notice from the Company, the Agents will suspend solicitation
of offers to purchase Securities from the Company until such time as the Company
has advised the Agents that such solicitation may be resumed. During such
period, the Company shall not be required to comply with the provisions of
Sections 4(h), 4(i), 4(j) and 4(k). Upon advising the Agents that such
solicitation may be resumed, however, the Company shall simultaneously provide
the documents required to be delivered by Sections 4(h), 4(i), 4(j) and 4(k),
and the Agents shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the Agents. In addition,
any failure by the Company to comply with its obligations hereunder, including
without limitation its obligations to deliver the documents required by Sections
4(h), 4(i), 4(j) and 4(k), shall automatically terminate the Agents' obligations
hereunder, including without limitation its obligations to solicit offers to
purchase the Securities hereunder as agent or to purchase Securities hereunder
as principal.
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The Company agrees to pay each Agent a commission, at the time
of settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
Commission (percentage of
aggregate principal amount
Range of Maturities of Securities sold)
From 9 months to less than 1 year %
From 1 year to less than 18 months %
From 18 months to less than 2 years %
From 2 years to less than 3 years %
From 3 years to less than 4 years %
From 4 years to less than 5 years %
From 5 years to less than 6 years %
From 6 years to less than 7 years %
From 7 years to less than 10 years %
From 10 years to less than 15 years %
From 15 years to less than 20 years %
From 20 years to 30 years %
From more than 30 years to 40 years %
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the Company and
such Agent shall otherwise agree) a Terms Agreement, which will provide for the
sale of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent. The commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such
Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof. Each Agent proposes to offer Securities purchased by it as
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principal for sale at prevailing market prices or prices related thereto at the
time of sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as set forth
in the Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities
to be purchased by an Agent as principal, whether set forth in a Terms Agreement
or in accordance with the Administrative Procedure, is referred to herein as a
"Time of Delivery".
(c) Each Agent agrees, with respect to any Security
denominated in a currency other than U.S. dollars, as agent, directly or
indirectly, not to solicit offers to purchase, and as principal under any Terms
Agreement or otherwise, directly or indirectly, not to offer, sell or deliver,
such Security in, or to residents of, the country issuing such currency, except
as permitted by applicable law.
3. The documents required to be delivered pursuant to Section
6 hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities is commenced or on which any
Terms Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof or (B) after
the date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which shall be
disapproved by any Agent party to such Terms Agreement or so purchasing as
principal promptly after reasonable
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notice thereof; (ii) to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b)(3) under the Act not later
than the close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used; (iii) to make no amendment
or supplement to the Registration Statement or Prospectus, other than any
Pricing Supplement (including, without limitation, any Pricing Supplement
relating to Securities sold to or through an underwriter or agent pursuant to
the third paragraph of this Agreement), at any time prior to having afforded
each Agent a reasonable opportunity to review and comment thereon; (iv) to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or has become effective or any supplement to the Prospectus or any
amended Prospectus (other than any Pricing Supplement that relates to Securities
not purchased through or by such Agent) has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; and (v)
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly to take such action as such Agent may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as such Agent may request and to comply with such
laws so as to permit the continuance of sales and dealings therein for as long
as may be necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of
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the Prospectus as each time amended or supplemented, other than any Pricing
Supplement (except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the Act, and
with copies of the documents incorporated by reference therein, all in such
quantities as such Agent may reasonably request from time to time; and, if the
delivery of a prospectus is required at any time in connection with the offering
or sale of the Securities (including Securities purchased from the Company by
such Agent as principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify such Agent and request such
Agent, in its capacity as agent of the Company, to suspend solicitation of
offers to purchase Securities from the Company (and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event not
later than one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then amended or
supplemented, to so advise such Agent promptly by telephone (with confirmation
in writing) and to prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period such Agent
continues to own Securities purchased from the Company by such Agent as
principal or such Agent is otherwise required to deliver a prospectus in respect
of transactions in the Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or other)
furnished to shareholders,
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<PAGE>
and deliver to such Agent (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the Company
is listed; (ii) such additional information concerning the business and
financial condition of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission); and (iii)
information relating to any downgrading in the rating of the Securities or any
other debt securities of the Company, or any published or publicly disseminated
proposal to consider a downgrade in the rating of the Securities or any other
debt securities of the Company, by any "nationally recognized statistical rating
organization" (as defined for such purposes of Rule 436(g) under the Act), as
soon as an executive officer of the Company is informed of any such downgrading
or publicly disseminated proposal to consider such downgrading;
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the Company
by such Agent and (ii) the related Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities, without the prior written consent of
such Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and correct as of the
date of such acceptance or of such Terms Agreement, as the case may be, as
though made at and as of such date, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating
to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by a
Pricing Supplement), each time a
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<PAGE>
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus, and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Reid & Priest LLP, counsel to the Agents,
as a condition to the purchase of Securities pursuant to such Terms Agreement,
the Company shall furnish to such counsel such papers and information as they
may reasonably request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion under this Section 4(i) as
a condition to the purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to such Agent a written
opinion of Barnes & Thornburg, counsel for the Company, or other counsel for the
Company satisfactory to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as the case
may be, in form satisfactory to such Agent, to the effect that such Agent may
rely on the opinion of such counsel referred to in Section 6(c) hereof which was
last furnished to such Agent to the same extent as though it were dated the date
of such letter authorizing reliance (except that the statements in such last
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such counsel referred to
in Section 6(c) hereof but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date;
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus, in either case to set forth financial information included in or
derived from the Company's consolidated financial statements or accounting
records, and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of
a letter under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such
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<PAGE>
Agent a letter, dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in form satisfactory
to such Agent, of the same tenor as the letter referred to in Section 6(d)
hereof but modified to relate to the Registration Statement and the Prospectus
as amended or supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the extent
such financial statements and other information are available as of a date not
more than three business days prior to the date of such letter; provided,
however, that, with respect to any financial information or other matter, such
letter may reconfirm as true and correct at such date as though made at and as
of such date, rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section 6(d)
hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the Company sells
Securities to such Agent as principal and the applicable Terms Agreement
specifies the delivery of a certificate under this Section 4(k) as a condition
to the purchase of Securities pursuant to such Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent a certificate,
dated the date of such supplement, amendment, incorporation or Time of Delivery
relating to such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the effect
that the statements contained in the certificates referred to in Section 6(h)
hereof which were last furnished to such Agent are true and correct at such date
as though made at and as of such date (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(h) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase
Securities from the Company as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Securities if, on
the related settlement date fixed pursuant to the Administrative Procedure, any
condition set forth in Section 6(a), 6(e), 6(f) or 6(g) hereof shall not have
been satisfied (it being understood that the judgment of such person with
respect to the impracticability or inadvisability of such purchase of Securities
shall be substituted, for purposes of this
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<PAGE>
Section 4(l), for the respective judgments of an Agent with respect to certain
matters referred to in such Sections 6(e) and 6(g), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment permitted under
such Sections 6(e) and 6(g) on behalf of any such person).
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the fees, disbursements and
expenses of counsel for the Agents in connection with the establishment of the
program contemplated hereby, any opinions to be rendered by such counsel
hereunder and under any Terms Agreement and the transactions contemplated
hereunder and under any Terms Agreement; (iii) the cost of printing, producing
or reproducing this Agreement, any Terms Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Agents in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees
incident to, and the fees and disbursements of counsel for the Agents in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the fees and expenses of any Trustee and any
agent of any Trustee and any transfer or paying agent of the Company and the
fees and disbursements of counsel for any Trustee or such agent in connection
with any Indenture and the Securities; (ix) any advertising expenses connected
with the solicitation of offers to purchase and the sale of Securities so long
as such advertising expenses have been approved by the Company; and (x) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
Except as provided in Sections 7 and 8 hereof, each Agent shall pay all other
expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at
any time ("Solicitation Time") to solicit offers to purchase the Securities and
the obligation of any Agent to
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purchase Securities as principal, pursuant to any Terms Agreement or otherwise,
shall in each case be subject, in such Agent's discretion, to the condition that
all representations and warranties and other statements of the Company herein
(and, in the case of an obligation of an Agent under a Terms Agreement, in or
incorporated by reference in such Terms Agreement) are true and correct at and
as of the Commencement Date and any applicable date referred to in Section 4(k)
hereof that is prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or Time of Delivery, as the case
may be, the condition that prior to such Solicitation Time or Time of Delivery,
as the case may be, the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be, the Prospectus
as amended or supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
4(a) hereof; (ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent;
(b) Reid & Priest LLP, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the Commencement
Date, with respect to the matters covered in paragraphs (i), (iv), (v), (vi),
(ix), (xi) and (xiii) of subsection (c) below, as well as such other related
matters as such Agent may reasonably request; and (ii) if and to the extent
requested by such Agent, with respect to each applicable date referred to in
Section 4(h) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions, dated such applicable
date, to the effect that such Agent may rely on the opinion or opinions which
were last furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter authorizing
reliance (except that the statements in such last opinion or opinions shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in any case, in lieu of such an opinion or
opinions, an opinion or opinions of the same tenor as the opinion or opinions
referred to in clause (i) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date; and in each case
such
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counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Barnes & Thornburg, counsel for the Company, or other
counsel for the Company satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each applicable
date referred to in Section 4(i) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in form and substance satisfactory
to such Agent, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or to which any property of the Company or any of its
subsidiaries is subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) This Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered
by the Company;
(v) The Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered by the Company,
will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the Indenture
and the Securities conform to the descriptions thereof in the
Prospectus;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to
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enforcement, to (i) the United States Bankruptcy Code, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights or remedies generally and (ii) general equitable principles
(regardless of whether such enforcement is considered in a proceeding
at law or in equity) and to judicial discretion. The Indenture has been
duly qualified under the Trust Indenture Act. All taxes and fees
required to be paid with respect to the execution of the Indenture and
the issuance of the Securities have been paid;
(vii) The issue and sale of the Securities, the compliance
by the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any applicable Terms Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party or by
which the Company is bound or to which any of the property or assets of
the Company is subject, nor will such action result in any violation of
the provisions of the Articles of Incorporation, as amended, of the
Company or the By-laws of the Company or any statute or any order, rule
or regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its properties;
(viii) The Company and its parent, Indiana Energy, Inc., are
presently exempt from the provisions of the Public Utility Holding
Company Act of 1935, as amended (except Section 9 thereof), which would
otherwise require them to register thereunder; and the Company's gas
distribution activities are exempt from or do not require compliance
with the provisions of the Natural Gas Act;
(ix) The statements set forth in the Prospectus under the
captions "Description of the Debt Securities" and "Supplemental
Description of the Notes", insofar as they purport to constitute a
summary of the terms of the Securities, and under the caption
"Supplemental Plan of Distribution", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate and complete in all material respects;
(x) The Company is not and, after giving effect
to the offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
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"investment company", as such terms are defined in the
Investment Company Act;
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules,
financial data or statistical information therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and although they are not passing upon and do not assume
any responsibility for the accuracy and completeness of the statements
contained in such documents, such counsel advises you on the basis of
the discussions and inquiries concerning various legal and related
subjects and reviews of and reports on certain corporate records,
documents and proceedings and conferences with representatives of the
Company at which certain portions of such documents were discussed
(relying as to certain facts relevant to a determination of materiality
upon the representations of the Company), no facts have come to our
attention which would lead us to believe that any of such documents,
when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xii) To such counsel's knowledge, the Indiana Commission Orders
is in full force and effect and is sufficient to permit the Company to
enter into and perform the transactions contemplated by this Agreement;
and no other consent, approval, authorization, order, registration or
qualification of any court or governmental agency or body is required
for solicitation of offers to purchase Securities, the issue and sale
of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable Terms
Agreement, or the Indenture, except such as have been obtained under
the Act and the Trust Indenture Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the sale of
the Securities as contemplated by this Agreement; and
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<PAGE>
(xiii) The Registration Statement and the Prospectus (other
than the financial statements and related schedules, financial data or
statistical information therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the applicable
rules and regulations thereunder; further, although they are not
passing upon and do not assume any responsibility for the accuracy and
completeness of the statements contained in the Registration Statement
and the Prospectus, such counsel advises you on the basis of the
discussions and inquiries concerning various legal and related subjects
and reviews of and reports on certain corporate records, documents and
proceedings and conferences with representatives of the Company at
which certain portions of the Registration Statement and the Prospectus
were discussed (relying as to certain facts relevant to a determination
of materiality upon the representations of the Company), no facts have
come to our attention which would lead us to believe that (A) as of its
effective date, the Registration Statement (other than the financial
statements and related schedules, financial data or statistical
information therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) as of their respective dates,
the Prospectus (other than the financial statements and related
schedules therein, financial data or statistical information, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading or (C) as of the
date hereof either the Registration Statement or the Prospectus (other
than the financial statements and related schedules, financial data or
statistical information therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits 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 were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed or any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to
be described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required;
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(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
such Agent a letter, dated the Commencement Date or such applicable date, as the
case may be, in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of such Agent so material and adverse as
to make it impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the purchase by such
Agent of Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for
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purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; or (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this Clause (iii) in the judgment of such Agent makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Securities or
the purchase of the Securities from the Company as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the terms and in
the manner contemplated in the Prospectus; and
(h) The Company shall have furnished or caused to be furnished
to such Agent certificates of officers of the Company dated the Commencement
Date and each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in such
form and executed by such officers of the Company as shall be satisfactory to
such Agent, as to the accuracy of the representations and warranties of the
Company herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters set forth in subsections
(a) and (e) of this Section 6, and as to such other matters as such Agent may
reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided,
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however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by such
Agent expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
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<PAGE>
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to
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<PAGE>
be stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
any Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by per capita
allocation (even if all Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), an Agent
shall not be required to contribute any amount in excess of the amount by which
the total public offering price at which the Securities purchased by or through
it were sold exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under this subsection
(d) to contribute are several in proportion to the respective purchases made by
or through it to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities
from the Company and in performing the other obligations of such Agent hereunder
(other than in respect of any purchase by an Agent as principal, pursuant to a
Terms Agreement or otherwise), is acting solely as agent for the Company and not
as principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by
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<PAGE>
such Agent and has been accepted by the Company, but such Agent shall not have
any liability to the Company in the event such purchase is not consummated for
any reason. If the Company shall default on its obligation to deliver Securities
to a purchaser whose offer it has accepted, the Company shall (i) hold each
Agent harmless against any loss, claim or damage arising from or as a result of
such default by the Company and (ii) notwithstanding such default, pay to the
Agent that solicited such offer any commission to which it would be entitled in
connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the Company may be suspended
or terminated at any time by the Company as to any Agent or by any Agent as to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Securities which are already
issued, agreed to be issued or the subject of a pending offer at the time of
such suspension or termination and (z) in any event, this Agreement shall remain
in full force and effect insofar as the fourth paragraph of Section 2(a), and
Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advice hereunder
shall be in writing, or by telephone if promptly confirmed in writing, and if to
____________________ shall be sufficient in all respects when delivered or sent
by telex, facsimile transmission or registered mail to
- --------------------------------------------------------------------------------
_________________________________________________, Facsimile Transmission No.
___________________________, Attention: _________________________, and if to the
Company shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to Indiana Gas Company, Inc.,
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<PAGE>
1630 North Meridian Street, Indianapolis, Indiana 46202-1496, Facsimile
Transmission No. (317) 321-0498, Attention: Chief Financial Officer.
12. This Agreement and any Terms Agreement shall be binding
upon, and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any
Terms Agreement. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. This Agreement and any Terms Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
15. This Agreement and any Terms Agreement, respectively, may
be executed by any one or more of the parties hereto and thereto in any number
of counterparts, each of which shall be an original, but all of such respective
counterparts shall together constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your understanding,
please sign and return to us six counterparts hereof, whereupon this letter and
the acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
INDIANA GAS COMPANY, INC.
By:
Name:
Title:
Accepted in New York, New York, as of the date hereof:
By:
Name:
Title:
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<PAGE>
EXHIBIT A
[Date]
[Address]
Re: [Amount of Issue] Medium Term Notes, Series __
Ladies and Gentlemen:
We hereby confirm that, in consideration for your agreeing to
distribute this issue, for the purpose of this issue only, we will treat you in
all respects as an agent for our $___________________ Medium-Term Note Program
and you will enjoy all rights and benefits, and be subject to all the
obligations of an Agent as set out in the Distribution Agreement, dated
___________, a copy of which has been delivered to you.
This letter shall be governed by, and construed in accordance
with, the laws of the State of New York.
Please confirm your acceptance of the following by signing
this letter and returning it to us.
Yours faithfully,
INDIANA GAS COMPANY, INC.
By:
Name:
Title:
Acknowledged and Accepted:
By:
Name:
Title
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<PAGE>
EXHIBIT B
FORM OF DEALER ACCESSION LETTER
[Date]
Indiana Gas Company, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202-1496
Attention:
Re: $__________ Medium Term Notes, Series __
Ladies and Gentlemen:
We refer to the Distribution Agreement, dated _________,
entered into in respect of the above $___________ Medium-Term Note Program (the
"Program") and made among you and the Agents party thereto (which agreement, as
amended from time to time, is herein referred to as the "Agreement").
Conditions Precedent
We confirm that we are in receipt of the documents referenced
below:
- a copy of the Agreement;
- a copy of all documents referred to in Section 6 of the
Agreement;
- a side letter in a form approved by ourselves from each of the
legal advisers referred to in Section 6 of the Agreement
addressed to ourselves and giving us the full benefit of the
existing legal opinions;
and have found them to our satisfaction.
For purposes of the Agreement, our Notice Details are as
follows:
[Insert name, address, telephone, telex
(+ answerback) and attention]
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<PAGE>
In consideration of your appointment of us as an Agent under
the Agreement we hereby undertake, for the benefit of each of you and each of
the other Agents, that we will perform and comply with all the duties and
obligations expressed to be assumed by an Agent under the Agreement.
We understand that, in accordance with the Agreement, with
effect from the date hereof, we shall become a party to the Agreement, vested
with all the authority, rights, powers, duties and obligations of an Agent as if
originally named as an Agent under the Agreement.
This letter is governed by, and shall be construed in
accordance with, New York law.
If the foregoing is in accordance with your understanding,
please sign and return to us a copy hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between us and
each of you in accordance with its terms.
Your faithfully,
Acknowledged and Accepted:
INDIANA GAS COMPANY, INC.
By:
Name:
Title:
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<PAGE>
ANNEX I
INDIANA GAS COMPANY, INC.
Medium-Term Notes, Series __
Terms Agreement
____________, 19__
Ladies and Gentlemen:
Indiana Gas Company, Inc. (the "Company") proposes, subject to
the terms and conditions stated herein and in the Distribution Agreement, dated
______________ (the "Distribution Agreement"), between the Company on the one
hand and
- --------------------------------------------------------------------------------
(the "Agents") on the other, to issue and sell to the Agents the securities
specified in the Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company, of offers to purchase
Securities is incorporated herein by reference in its entirety, and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Nothing contained herein or in the
Distribution Agreement shall make any party hereto an agent of the Company or
make such party subject to the provisions therein relating to the solicitation
of offers to purchase Securities from the Company, solely by virtue of its
execution of this Terms Agreement. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of
this Terms Agreement, except that each representation and warranty in Section 1
of the Distribution Agreement which makes reference to the Prospectus shall be
deemed to be a representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended and supplemented to relate to the Purchased
Securities.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in
the Distribution Agreement incorporated herein by
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<PAGE>
reference, the Company agrees to issue and sell to
____________________________________ and ________________________________ agrees
to purchase from the Company the Purchased Securities, at the time and place, in
the principal amount and at the purchase price set forth in the
Schedule hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us ____ counterparts hereof, and upon acceptance
hereof by you this letter and such acceptance hereof, including those provisions
of the Distribution Agreement incorporated herein by reference, shall constitute
a binding agreement between you and the Company.
INDIANA GAS COMPANY, INC.
By:
Name:
Title:
Accepted:
By:
Name:
Title:
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<PAGE>
Schedule to Annex I
Title of Purchased Securities:
[ %] Medium-Term Notes [Series __]
Aggregate Principal Amount:
[$.................... or units of other Specified
Currency]
[Price to Public:]
Purchase Price by Purchasing Agent
% of the principal amount of the Purchased Securities[, plus
accrued interest from _______________ to _______________] [and accrued
amortization, if any, from _________________ to
- ----------------]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the
order of the Company, in [[New York] Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified by the
Company in [next day] [immediately available] funds]
Indenture:
Indenture, dated as of ____________, 19__, between the
Company and , as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
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<PAGE>
Documents to be Delivered:
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred
to in Section 4(h).]
[(2) The opinion of counsel to the Company referred to in
Section 4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
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<PAGE>
ANNEX II
INDIANA GAS COMPANY, INC.
Administrative Procedure
This Administrative Procedure relates to the Securities
defined in the Distribution Agreement, dated _____________ (the "Distribution
Agreement"), between Indiana Gas Company, Inc. (the "Company") and
_______________________________________________________ (the "Agents"), to which
this Administrative Procedure is attached as Annex II. Defined terms used herein
and not defined herein shall have the meanings given such terms in the
Distribution Agreement, the Prospectus as amended or supplemented or the
Indenture.
The procedures to be followed with respect to the settlement
of sales of Securities directly by the Company to purchasers solicited by an
Agent, as agent, are set forth below. The terms and settlement details related
to a purchase of Securities by an Agent, as principal, from the Company will be
set forth in a Terms Agreement pursuant to the Distribution Agreement, unless
the Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons
with whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
Each Security will be issued only in fully registered form and
will be represented by either a global security (a "Global Security") delivered
to the Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
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<PAGE>
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Certificated Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry
Securities for eligibility in the book-entry system maintained by the
Depositary, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Letter of Representation from the Company and the Trustee to
the Depositary, dated the date hereof, and a Medium-Term Note Certificate
Agreement between the Trustee and the Depositary, dated as of December 29, 1988
(the "Certificate Agreement"), and its obligations as a participant in the
Depositary, including the Depositary's Same-Day Funds Settlement System
("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Book-Entry
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase Book-Entry
Securities, other than those rejected by such Agent. Each Agent may, in its
discretion reasonably exercised, reject any offer received by it in whole or in
part. Each Agent also may make offers to the Company to purchase Book-Entry
Securities as a Purchasing Agent. The Company will have the sole right to accept
offers to purchase Book-Entry Securities and may reject any such offer in whole
or in part.
The Company will promptly notify the Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Book-Entry Securities. If the Company accepts an offer to purchase
Book-Entry Securities, it will confirm such acceptance in writing to the Selling
Agent or Purchasing Agent, as the case may be, and by telephone and in writing
to the Trustee.
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Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the
Selling Agent or Purchasing Agent, as the case may be, will communicate
promptly, but in no event later than the time set forth under "Settlement
Procedure Timetable" below, the following details of the terms of such offer
(the "Sale Information") to the Company by telephone (confirmed in writing) or
by facsimile transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of Global
Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount,
as the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
and
(iii) Amount (% of par) that the Redemption
Price shall decline (but not below par) on each anniversary of
the Redemption Commencement Date;
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(12) If a Floating Rate Book-Entry Security, such of
the following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread and/or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number
of the registered owner(s);
(14) Denomination of certificates to be delivered at
settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent
or Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message
through the Depositary's Participant Terminal System, providing
the following settlement information to the Depositary, and the
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Depositary shall forward such information to such Agent and Standard & Poor's
Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing
such Book-Entry Security;
(3) Whether such Global Security will represent any
other Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by
the Depositary on behalf of the Selling Agent or Purchasing
Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry
Security, number of days by which such date succeeds the record date for the
Depositary's purposes (or, in the case of Floating Rate Securities which reset
daily or weekly, the date five calendar days immediately preceding the
applicable Interest Payment Date and, in the case of all other Book-Entry
Securities, the Regular Record Date, as defined in the Security) and, if
calculable at that time, the amount of interest payable on such Interest Payment
Date.
D. The Trustee will complete and authenticate the
Global Security previously delivered by the Company representing
such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security
to the Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i) debit
such Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to debit
such Book-Entry Security to such Agent's
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<PAGE>
participant account and credit such Book-Entry Security to the participant
accounts of the Participants with respect to such Book-Entry Security and (ii)
to debit the settlement accounts of such Participants and credit the settlement
account of such Agent for an amount equal to the price of such Book-Entry
Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at National City Bank Indiana,
Indianapolis, Indiana, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the Participants with
respect to such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written confirmation
to such purchaser.
L. The Depositary will, at any time, upon request of the
Company or the Trustee, promptly furnish to the Company or the Trustee a list of
the names and addresses of the participants for whom the Depositary has credited
Book-Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry
Security, it will prepare a Pricing Supplement reflecting the terms of such
Book-Entry Security and arrange to have delivered to the Selling Agent or
Purchasing Agent, as the case may be, at least ten copies of such Pricing
Supplement, not later than 5:00 p.m., New York City time, on the Business Day
following the Trade Date (as defined below), or if the Company and the purchaser
agree to settlement on the Business Day following the date of acceptance of such
offer, not later than noon, New York City time, on such date. The Company will
arrange to have ten Pricing Supplements filed with the Commission not later than
the close of business of the Commission on the fifth Business Day following the
date on which such Pricing Supplement is first used.
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<PAGE>
Delivery of Confirmation and Prospectus to Purchaser by Selling
Agent:
The Selling Agent will deliver to the purchaser of a
Book-Entry Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Security and the authentication and issuance of the
Global Security representing such Book-Entry Security shall constitute
"settlement" with respect to such Book-Entry Security. All orders of Book-Entry
Securities solicited by a Selling Agent or made by a Purchasing Agent and
accepted by the Company on a particular date (the "Trade Date") will be settled
on a date (the "Settlement Date") which is the third Business Day after the
Trade Date pursuant to the "Settlement Procedure Timetable" set forth below,
unless the Company and the purchaser agree to settlement on another Business Day
which shall be no earlier than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling
Agent and accepted by the Company for settlement on the fifth Business Day after
the Trade Date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City
time) set forth below:
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<PAGE>
Settlement Time
Procedure
A 5:00 p.m. on the Business Day following the Trade Date
or 10:00 a.m. on the Business Day prior to the
Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry
Security has not been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be completed as soon as such
rate has been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or
canceled, the Trustee, upon obtaining knowledge thereof, will deliver to the
Depositary, through the Depositary's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Security pursuant to Settlement Procedure "F", the
Trustee may deliver to the Depositary, through the Depositary's Participant
Terminal System, as soon as practicable a withdrawal message instructing the
Depositary to debit such Book-Entry Security to the Trustee's participant
account, provided that the Trustee's participant account contains a principal
amount of the Global Security representing such Book-Entry Security that is at
least equal to the principal amount to be debited. If a withdrawal message is
processed with
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<PAGE>
respect to all the Book-Entry Securities represented by a Global Security, the
Trustee will mark such Global Security "canceled", make appropriate entries in
the Trustee's records and send such canceled Global Security to the Company. The
CUSIP number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all, of the
Book-Entry Securities represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Security or Securities and shall be canceled
immediately after issuance and the other of which shall represent the remaining
Book-Entry Securities previously represented by the surrendered Global Security
and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not
timely paid to the participants with respect to such Book-Entry Security by the
beneficial purchaser thereof (or a person, including an indirect participant in
the Depositary, acting on behalf of such purchaser), such participants and, in
turn, the Agent for such Book-Entry Security may enter deliver orders through
the Depositary's Participant Terminal System debiting such Book-Entry Security
to such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, the Depositary may take any actions in
accordance with its SDFS operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not all, of the Book-Entry
Securities to have been represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedure "D", for the authentication and
issuance of a Global Security representing the
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<PAGE>
other Book-Entry Securities to have been represented by such Global Security and
will make appropriate entries in its records. The Company will, from time to
time, furnish the Trustee with a sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Certificated
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase Certificated
Securities, other than those rejected by such Agent. Each Agent may, in its
discretion reasonably exercised, reject any offer received by it in whole or in
part. Each Agent also may make offers to the Company to purchase Certificated
Securities as a Purchasing Agent. The Company will have the sole right to accept
offers to purchase Certificated Securities and may reject any such offer in
whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or rejection of an offer
to purchase Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate the following
details of the terms of such offer (the "Sale Information") to the Company by
telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
1. Principal Amount of Certificated Securities to be
purchased;
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<PAGE>
2. If a Fixed Rate Certificated Security, the
interest rate and initial interest payment date;
3. Trade Date;
4. Settlement Date;
5. Maturity Date;
6. Specified Currency and, if the Specified Currency
is other than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
7. Indexed Currency, the Base Rate and the Exchange
Rate Determination Date, if applicable;
8. Issue Price;
9. Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
10. Net Proceeds to the Company;
11. If a redeemable Certificated Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each anniversary of the
Redemption Commencement Date;
12. If a Floating Rate Certificated Security, such of
the following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread and/or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
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(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
13. Name, address and taxpayer identification number
of the registered owner(s);
14. Denomination of certificates to be delivered at
settlement;
15. Book-Entry Security or Certificated Security; and
16. Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated
Security, it will prepare a Pricing Supplement reflecting the terms of such
Certificated Security and arrange to have delivered to the Selling Agent or
Purchasing Agent, as the case may be, at least ten copies of such Pricing
Supplement, not later than 5:00 p.m., New York City time, on the Business Day
following the Trade Date, or if the Company and the purchaser agree to
settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than the close of business of
the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling
Agent:
The Selling Agent will deliver to the purchaser of a
Certificated Security a written confirmation of the sale and delivery and
payment instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including the
Pricing Supplement) in relation to such Certificated Security prior to or
together with the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Certificated Security.
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<PAGE>
Date of Settlement:
All offers of Certificated Securities solicited by a Selling
Agent or made by a Purchasing Agent and accepted by the Company will be settled
on a date (the "Settlement Date") which is the third Business Day after the date
of acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00 a.m., New York
City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of
Certificated Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile
transmission or other acceptable written means to authenticate and deliver the
Certificated Securities no later than 2:15 p.m., New York City time, on the
Settlement Date. Such instruction will be given by the Company prior to 3:00
p.m., New York City time, on the Business Day immediately preceding the
Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which case such
instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee
and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Security and
appropriate receipts that will serve as the documentary control of the
transaction.
In the case of a sale of Certificated Securities to a
purchaser solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York
City time, on the Settlement Date, deliver the Certificated Securities to the
Selling Agent for the benefit of the purchaser of such Certificated Securities
against delivery by the Selling Agent of a receipt therefor. On the Settlement
Date the Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue price
of the Certificated Securities less the Selling Agent's commission; provided
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
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<PAGE>
In the case of a sale of Certificated Securities to a
Purchasing Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Purchasing Agent
against delivery of payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make
payment to the Selling Agent for a Certificated Security, the Selling Agent will
promptly notify the Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect
of which the failure occurred, make appropriate entries in its records and,
unless otherwise instructed by the Company, destroy the Certificated Security.
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<PAGE>
ANNEX III
Accountants' Letter
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements
and any supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) audited by them and
incorporated by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and the
Exchange Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies
of which are attached;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of the
unaudited condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the Company's
quarterly report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which are attached; and on the
basis of specified procedures including inquiries of officials of the Company
who have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (v)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with
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<PAGE>
the applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information
with respect to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatement where applicable) in
the audited consolidated financial statements for such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on Form
10-K for such fiscal years;
(v) On the basis of limited procedures, not
constituting an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the latest
audited financial statements incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that caused them to
believe that:
(A)(i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Company's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived;
(C) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in the
consolidated capital stock (other than
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<PAGE>
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Agents, or any increases in any items
specified by the Agents, in each case as compared with amounts shown in
the latest balance sheet incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(D) for the period from the date of the latest
financial statements incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per share
amounts of consolidated net income or other items specified by the
Agents, or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the Agents,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter.
(vii) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Agents which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the Agents
or in documents incorporated by reference in the Prospectus specified by the
Agents, and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the
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<PAGE>
Distribution Agreement as of the Commencement Date referred to in Section 6(d)
thereof and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) as of the date of the amendment,
supplement, incorporation or the Time of Delivery relating to the Terms
Agreement requiring the delivery of such letter under Section 4(j) thereof.
-4-
Indiana Gas Company, Inc.
October 30, 1997
Page 1
EXHIBIT 5
[BARNES & THORNBURG LETTERHEAD]
October 30, 1997
Indiana Gas Company, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-3 (the "Registration Statement") of Indiana Gas Company,
Inc., an Indiana corporation (the "Corporation"), filed pursuant to the
Securities Act of 1933, as amended ("Securities Act"), relating to the offer and
sale by the Corporation of up to $95,000,000 of debt securities (the "Debt
Securities") to be issued and sold under the provisions of the Indenture between
the Corporation and First Trust National Association (successor to Bank of
America Illinois which in turn is successor to Continental Bank, National
Association), dated as of February 1, 1991, as supplemented and amended and to
be supplemented and amended for the purpose of creating the series of Debt
Securities. We have examined such records, certificates and other documents and
have made such investigation of law as we have deemed necessary in the
circumstances.
Based on that examination and investigation, it is our opinion that,
when the Debt Securities have been issued and sold and the purchase price
thereof has been paid in accordance with the transactions proposed in the
Registration Statement, as the same may be amended, and when the steps mentioned
in the next paragraph have been taken, and the Debt Securities shall have been
duly executed, authenticated and delivered in accordance with the Indenture, and
delivered against payment therefor, the Debt Securities will be legal, valid and
binding obligations of the Corporation.
The steps to be taken which are referred to in the next preceding
paragraph are:
1. Appropriate definitive action by the
Board of Directors of the Corporation or an authorized
committee thereof with respect to the proposed transactions
set forth in the Registration Statement;
2. Compliance with the Securities Act,
applicable state blue sky laws and the Trust Indenture Act of
1939, as amended; and
3. Issuance and sale of the Debt Securities
in accordance with the corporate authorization aforesaid.
<PAGE>
Indiana Gas Company, Inc.
October 30, 1997
Page 2
This opinion letter is limited to the current Federal laws of the
United States and the current internal laws of the State of Indiana (without
giving effect to any conflict of law principles thereof) and we have not
considered, and express no opinion on, the laws of any other jurisdiction.
We consent to the use of our name under the caption "Legal Opinions" in
the Prospectus included in the Registration Statement and to the filing of this
opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
BARNES & THORNBURG
/s/ BARNES & THORNBURG
Indiana Gas Company, Inc.
and Subsidiary Companies
Computation of Ratio of Earnings to Fixed Charges
(Thousands except ratios)
<TABLE>
<CAPTION>
12 Months
Fixed Charges, as defined in Ended Fiscal Year Ended September 30
Regulation S-K, Item 503: June 30, 1997 1996 1995 1994 1993 1992
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Interest on LT debt 14,019 14,882 13,474 14,798 15,304 13,885
Interest on LT debt--nonutility -- -- -- -- -- --
Interest on notes payable 1,584 337 971 493 447 222
Other Interest 824 688 1,085 746 889 449
1/3 rent expense 954 937 865 949 916 1,086
------------------------------------------------------------------
(1) Total fixed charges 17,381 16,844 16,395 16,986 17,556 15,642
==================================================================
EARNINGS:
Net income before preferred stock dividends 37,466 38,630 32,109 34,596 28,534 25,743
Income taxes
Current 22,195 23,300 16,152 17,124 13,892 12,748
Current-nonutility (IEI P.29 & Ind EN P.8) -- -- -- -- -- --
Deferred 1,209 804 3,994 3,273 2,931 2,073
ITC (930) (930) (930) (930) (1,007) (929)
Other income taxes
Ind Gas(409201-409207, 409211-409217) (991) (606) (586) (1,490) 214 (1,092)
Fixed charges (1) 17,381 16,844 16,395 16,986 17,556 15,642
------------------------------------------------------------------
(2) Total earnings 76,330 78.042 67,134 69,559 62,120 54,185
==================================================================
RATIO OF EARNINGS TO FIXED CHARGES
(2) DIVIDED BY (1) 4.4 4.6 4.1 4.1 3.5 3.5
==================================================================
</TABLE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated October 25, 1996,
included in the Indiana Gas Company, Inc.'s Form 10-K for the year ended
September 30, 1996, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Indianapolis, Indiana,
October 29, 1997.
-1-
EXHIBIT 24
INDIANA GAS COMPANY, INC.
LIMITED POWER OF ATTORNEY
(To Sign and File Registration Statement)
The undersigned director and/or officer of INDIANA GAS COMPANY, INC.,
an Indiana corporation (the "Company"), which intends to file with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement or Statements
and related prospectus for the registration of one or more new series of the
Company's Debt Securities in the aggregate principal amount of not to exceed
$95,000,000, does hereby appoint each of Lawrence A. Ferger and Niel C.
Ellerbrook as such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign said
Registration Statement or Statements and related prospectus and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or a
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of
Attorney this 30th day of October, 1997.
/s/ Paul T. Baker
-------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF Marion )
SUBSCRIBED AND SWORN to before me, a notary public, by said Paul T. Baker
who did personally appear and execute the above and foregoing Limited Power of
Attorney on October 30, 1997. Witness my hand and Notarial Seal this 30th day of
October, 1997.
/s/Mary Ellen Mires-Canada, Notary Public
-----------------------------------------
My Commission Expires: (printed)
9/14/98
- ----------------------
County of Residence:
Marion
- ----------------------
[NOTARY PUBLIC SEAL]
<PAGE>
INDIANA GAS COMPANY, INC.
LIMITED POWER OF ATTORNEY
(To Sign and File Registration Statement)
The undersigned director and/or officer of INDIANA GAS COMPANY, INC.,
an Indiana corporation (the "Company"), which intends to file with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement or Statements
and related prospectus for the registration of one or more new series of the
Company's Debt Securities in the aggregate principal amount of not to exceed
$95,000,000, does hereby appoint each of Lawrence A. Ferger and Niel C.
Ellerbrook as such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign said
Registration Statement or Statements and related prospectus and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or a
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of
Attorney this 30th day of October, 1997.
/s/ Neil C. Ellerbrook
-------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF Marion )
SUBSCRIBED AND SWORN to before me, a notary public, by said Neil C.
Ellerbrook who did personally appear and execute the above and foregoing Limited
Power of Attorney on October 30, 1997. Witness my hand and Notarial Seal this
30th day of October, 1997.
/s/Mary Ellen Mires-Canada, Notary Public
-----------------------------------------
My Commission Expires: (printed)
9/14/98
- ----------------------
County of Residence:
Marion
- ----------------------
[NOTARY PUBLIC SEAL]
<PAGE>
INDIANA GAS COMPANY, INC.
LIMITED POWER OF ATTORNEY
(To Sign and File Registration Statement)
The undersigned director and/or officer of INDIANA GAS COMPANY, INC.,
an Indiana corporation (the "Company"), which intends to file with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement or Statements
and related prospectus for the registration of one or more new series of the
Company's Debt Securities in the aggregate principal amount of not to exceed
$95,000,000, does hereby appoint each of Lawrence A. Ferger and Niel C.
Ellerbrook as such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign said
Registration Statement or Statements and related prospectus and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or a
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of
Attorney this 30th day of October, 1997.
/s/ Loren K. Evans
-------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF Marion )
SUBSCRIBED AND SWORN to before me, a notary public, by said Loren K. Evans
who did personally appear and execute the above and foregoing Limited Power of
Attorney on October 30, 1997. Witness my hand and Notarial Seal this 30th day of
October, 1997.
/s/Mary Ellen Mires-Canada, Notary Public
-----------------------------------------
My Commission Expires: (printed)
9/14/98
- ----------------------
County of Residence:
Marion
- ----------------------
[NOTARY PUBLIC SEAL]
<PAGE>
INDIANA GAS COMPANY, INC.
LIMITED POWER OF ATTORNEY
(To Sign and File Registration Statement)
The undersigned director and/or officer of INDIANA GAS COMPANY, INC.,
an Indiana corporation (the "Company"), which intends to file with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement or Statements
and related prospectus for the registration of one or more new series of the
Company's Debt Securities in the aggregate principal amount of not to exceed
$95,000,000, does hereby appoint each of Lawrence A. Ferger and Niel C.
Ellerbrook as such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign said
Registration Statement or Statements and related prospectus and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or a
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of
Attorney this 30th day of October, 1997.
/s/ Lawrence A. Ferger
-------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF Marion )
SUBSCRIBED AND SWORN to before me, a notary public, by said Lawrence A.
Ferger who did personally appear and execute the above and foregoing Limited
Power of Attorney on October 30, 1997. Witness my hand and Notarial Seal this
30th day of October, 1997.
/s/Mary Ellen Mires-Canada, Notary Public
-----------------------------------------
My Commission Expires: (printed)
9/14/98
- ----------------------
County of Residence:
Marion
- ----------------------
[NOTARY PUBLIC SEAL]
<PAGE>
INDIANA GAS COMPANY, INC.
LIMITED POWER OF ATTORNEY
(To Sign and File Registration Statement)
The undersigned director and/or officer of INDIANA GAS COMPANY, INC.,
an Indiana corporation (the "Company"), which intends to file with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement or Statements
and related prospectus for the registration of one or more new series of the
Company's Debt Securities in the aggregate principal amount of not to exceed
$95,000,000, does hereby appoint each of Lawrence A. Ferger and Niel C.
Ellerbrook as such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign said
Registration Statement or Statements and related prospectus and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or a
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of
Attorney this 30th day of October, 1997.
/s/ Otto N. Frenzel
-------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF Marion )
SUBSCRIBED AND SWORN to before me, a notary public, by said Otto N. Frenzel
who did personally appear and execute the above and foregoing Limited Power of
Attorney on October 30, 1997. Witness my hand and Notarial Seal this 30th day of
October, 1997.
/s/Mary Ellen Mires-Canada, Notary Public
-----------------------------------------
My Commission Expires: (printed)
9/14/98
- ----------------------
County of Residence:
Marion
- ----------------------
[NOTARY PUBLIC SEAL]
<PAGE>
INDIANA GAS COMPANY, INC.
LIMITED POWER OF ATTORNEY
(To Sign and File Registration Statement)
The undersigned director and/or officer of INDIANA GAS COMPANY, INC.,
an Indiana corporation (the "Company"), which intends to file with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement or Statements
and related prospectus for the registration of one or more new series of the
Company's Debt Securities in the aggregate principal amount of not to exceed
$95,000,000, does hereby appoint each of Lawrence A. Ferger and Niel C.
Ellerbrook as such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign said
Registration Statement or Statements and related prospectus and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or a
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of
Attorney this 30th day of October, 1997.
/s/ John E. Worthen
-------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF Marion )
SUBSCRIBED AND SWORN to before me, a notary public, by said John E. Worthen
who did personally appear and execute the above and foregoing Limited Power of
Attorney on October 30, 1997. Witness my hand and Notarial Seal this 30th day of
October, 1997.
/s/Mary Ellen Mires-Canada, Notary Public
-----------------------------------------
My Commission Expires: (printed)
9/14/98
- ----------------------
County of Residence:
Marion
- ----------------------
[NOTARY PUBLIC SEAL]
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2): [___]
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 36-4046888
(Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
11 E. Wacker Drive, Suite 3000
Chicago, Illinois 60601
(Address of Principal Executive Offices) (Zip Code)
Mr. Steven E. Charles
Vice President
First Trust National Association
11 E. Wacker Drive, Suite 3000
Chicago, Illinois 60601
(312) 228-9418
(Name, address and telephone number of agent for service)
INDIANA GAS COMPANY, INC.
(Exact name of obligor as specified in its charter)
Indiana 35-0793669
(State of Incorporation) (I.R.S. Employer Identification No.)
1630 N. Meridian Street
Indianapolis, Indiana 46202
(Address of Principal Executive Offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
-1-
<PAGE>
GENERAL
Item 1. GENERAL INFORMATION
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None. See Note following Item 16.
Items 3-15.
Items 3 - 15 are not applicable because, to the best
of the Trustee's knowledge, the obligor is not in
default under any Indenture for which the Trustee
acts as Trustee.
Item 16. LIST OF EXHIBITS
List below all exhibits filed as a part of this statement of
eligibility.
1. Copy of Articles of Incorporation.*
2. Copy of Certificate of Authority to Commence
Business.**
3. Authorization of the Trustee to exercise corporate
trust powers (included in Exhibits 1 and 2; no
separate instrument).**
4. Copy of existing By-Laws.***
5. Not applicable.
6. The consents of the Trustee required by Section
321(b) of the Act.
-2-
<PAGE>
7. Copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.***
8. Not applicable.
9. Not applicable.
- --------
* INCORPORATED BY REFERENCE TO FILE NUMBER 333-19025
** INCORPORATED BY REFERENCE TO FILE NUMBER 33-64175
*** INCORPORATED BY REFERENCE TO FILE NUMBER 333-26727
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, First Trust National Association, an Association organized and existing
under the laws of the United States, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Chicago and State of Illinois, on the 30th day of
October, 1997.
FIRST TRUST NATIONAL ASSOCIATION
/s/ Steven E. Charles
--------------------------------
Steven E. Charles
Vice President
ATTEST:
/s/ David S. Vick
- ---------------------------------------
David S. Vick
Assistant Secretary
-4-
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: October 30, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Steven E. Charles
----------------------------------
Steven E. Charles
Vice President
-5-
