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EXHIBIT 99.1
ATMOS ENERGY CORPORATION
(a Texas and Virginia corporation)
6,000,000 Shares of Common Stock
(No Par Value)
PURCHASE AGREEMENT
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December 14, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Warburg LLC
as Representatives of the several Underwriters named in Schedule A
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, NY 10281
Ladies and Gentlemen:
Atmos Energy Corporation, a Texas and Virginia corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch and UBS Warburg LLC are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
no par value, of the Company ("Common Stock") set forth in said Schedule A, and
with respect to the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 741,500 additional shares of Common Stock to cover over-
allotments, if any. The aforesaid 6,000,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 741,500 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
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The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-93705) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the published rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information". Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus". Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement". Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement", and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities is herein called the
"Prospectus". If Rule 434 is relied on, the term "Prospectus" shall refer to
the preliminary prospectus dated December 1, 2000 together with the Term Sheet
and all references in this Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus, or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of
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1934 (the "1934 Act") which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties
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(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the time of the filing by the Company of any annual report
on Form 10-K and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not 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. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Merrill Lynch expressly for
use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
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(ii) Incorporated Documents. The documents incorporated or deemed to
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be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act, 1933 Act Regulations, 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations"),
and, when read together with the other information in the Prospectus, at
the time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time (and if any Option Securities
are purchased, at the Date of Delivery), did not and will not contain an
untrue statement of a material fact and did not omit to or will not omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(iii) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
---------------------------
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly in
all material respects in accordance with GAAP the information required to
be stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement and the
Prospectus.
(v) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change, or a development known to the Company involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Common Stock in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock, other than as set forth in the Prospectus.
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(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in good standing under
the laws of the State of Texas and the Commonwealth of Virginia and has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
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the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each
a "Subsidiary" and, collectively, the "Subsidiaries") (a) has been duly
organized and is validly existing as an entity in good standing under the
laws of the jurisdiction of its formation, other than EnerMart Trust, a
Pennsylvania business trust, and Energas Energy Services Trust, a
Pennsylvania business trust, each of which has been duly organized and is
validly existing as a business trust in good standing under the laws of the
Commonwealth of Pennsylvania and (b) has power and authority or business
trust power and authority, as the case may be, to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign entity to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock or limited liability company
membership interests, as the case may be, of each such Subsidiary have been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock or limited
liability company membership interests, as the case may be, of any
Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary. The only Subsidiaries of the Company
are the subsidiaries listed on Schedule C hereto.
(viii) Capitalization. The authorized, issued and outstanding capital
---------------------
stock of the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options referred to
in the Prospectus). The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
---------------------------------
authorized, executed and delivered by the Company.
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(x) Authorization and Description of Securities
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The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and non-
assessable; the Common Stock conforms to all statements relating thereto
contained in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same; no holder of the Securities
will be subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts
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Neither the Company nor any of its subsidiaries is in violation of its
charter or bylaws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges, encumbrances or a Repayment Event that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or bylaws of the Company or any subsidiary or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii) Absence of Labor Dispute
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No labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent, and the Company
is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
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(xiii) Absence of Proceedings
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There is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened,against or
affecting the Company or any subsidiary, which is required to be disclosed
in the Registration Statement (other than as disclosed therein),or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to affect the properties,assets or
operations of the Company and its subsidiaries, except what does not
result in a Material Adverse Effect, or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property, assets or operations is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits
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There are no contracts or documents which are required to be described in
the Registration Statement, the Prospectus or the documents incorporated
by reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(xv) Possession of Intellectual Property
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The Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements
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There have been issued and, at the Closing Time, there shall be in full
force and effect orders or authorizations of the regulatory authorities of
the States of Colorado, Georgia, Illinois, Kentucky, Missouri,and Virginia,
respectively, authorizing the issuance and sale of the Securities on terms
herein set forth or contemplated and no other filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities or blue sky laws.
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(xvii) Possession of Licenses and Permits
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The Company and its subsidiaries possess such permits, licenses,approvals,
consents and other authorizations (collectively,"Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
except where the failure to do so would not have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, would result in a Material
Adverse Effect.
(xviii) Title to Property
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The Company and its subsidiaries have good title to all real property
owned by the Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances
of any kind except such as (a) are described in the Registration Statement
and the Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any subsidiary has any notice of any claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any
such lease or sublease, which, singly or in the aggregate, would result in
a Material Adverse Effect.
(xix) Investment Company Act
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The Company is not, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus 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 "1940 Act").
(xx) Environmental Laws
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Except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances,
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hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxi) Registration Rights
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There are no persons or entities with registration rights or other similar
rights to have any securities registered under the Registration.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing
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(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number
of Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly,to purchase up to an additional 741,500
shares of Common Stock at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by Merrill
Lynch to the Company setting forth the number of Option Securities as to which
the several Underwriters are then exercising the option and the time and date
of payment and delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by Merrill Lynch, but shall
not be later than seven full business days after the exercise of said option,
nor in any event prior to the Closing Time, as hereinafter defined. If the
option is exercised as to all or any portion of the Option Securities, each of
the Underwriters, acting
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severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as
Merrill Lynch in its discretion shall make to eliminate any sales or purchases
of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022, or at such
other place as shall be agreed upon by Merrill Lynch and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by
Merrill Lynch and the Company (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by Merrill Lynch and the
Company, on each Date of Delivery as specified in the notice from Merrill Lynch
to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Merrill Lynch, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
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Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the
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notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
11
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will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus.
If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that
the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however,
-------- -------
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the date of the Prospectus.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
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(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, the Company will not, without the prior
written consent of Merrill Lynch, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of any share of Common Stock
or any securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of
a security outstanding on the date hereof and referred to in the
Prospectus, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the
Company referred to in the Prospectus, (D) any shares of Common Stock
issued pursuant to any non-employee director stock plan or dividend
reinvestment plan, (E) any shares of our Common Stock that may be issued in
connection with the acquisition by the Company of Woodward Marketing, LLC
or (F) any shares of Common Stock issued by the Company as a result of
acquisitions where such shares of Common Stock are subject to the
restrictions set forth herein.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such
other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities
to the Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees, the filing fees incident to any
necessary filings under state securities laws and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of the Blue Sky Survey and any
supplement
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<PAGE>
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities, if any, and (x) the fees and expenses incurred in connection
with the listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------------------
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if
the Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of (i) Gibson, Dunn & Crutcher LLP, counsel for the Company,
in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit A hereto,
(ii) Hunton & Williams, Virginia counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit B hereto and (iii) Louis P.
Gregory, General Counsel of the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit C hereto.
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<PAGE>
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the Underwriters, as the
Representatives may reasonably require. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change or a
development known to the Company involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and the Representatives shall have received a certificate of
the President or a Senior Vice President of the Company and of the chief
financial officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Ernst & Young a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(h) No Objection. If required, the NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
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(i) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form
of Exhibit D hereto signed by the persons listed on Schedule D hereto.
(j) Conditions to Purchase of Option Securities. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representative(s) shall have received:
(i) Officers' Certificate. A certificate, dated such Date
----------------------------
of Delivery, of the President or a Senior Vice President of the
Company and of the chief financial officer of the Company confirming
that the certificate delivered at Closing Time pursuant to Section
5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsels for Company and the General
-------------------------------------------------------
Counsel. The favorable opinion of Gibson, Dunn & Crutcher LLP, counsel
-------
for the Company, together with the favorable opinion of Hunton &
Williams, Virginia counsel for the Company and the favorable opinion
of Louis P. Gregory, General Counsel of the Company, each in form and
substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable
------------------------------------------
opinion of Shearman & Sterling, counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst &
--------------------------------
Young in form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to
Section 5(f) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
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<PAGE>
(l) Termination of Agreement . If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
---------------------------
(a) Indemnification of Underwriters. (1) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the
17
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Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto). The
foregoing indemnity with respect to any untrue statement contained in or any
omission from the Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, liability, claim, damage or expense purchased any of the Securities
that are the subject thereof if the Company shall sustain the burden of proving
that (i) the untrue statement or omission contained in the Prospectus was
corrected; (ii) such person was not sent or given a copy of the Prospectus
(excluding documents incorporated by reference) which corrected the untrue
statement or omission at or prior to the written confirmation of the sale of
such Securities to such person if required by applicable law; and (iii) the
Company satisfied its obligation pursuant to Section 3(d) of this Agreement to
provide a sufficient number of copies of the Prospectus to the Underwriters.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Merrill Lynch expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
-------- -------
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
18
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indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement Without Consent If Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel and such
indemnified party shall be entitled to such reimbursement, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
------------------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
19
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The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation
20
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thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal,
New York, Texas or Virginia authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
----------- ------------------------------------------
more of the Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, the non-defaulting
Underwriters shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after Closing Time, which does not result in a termination of the obligation of
the Underwriters to purchase and the Company to sell the relevant Option
Securities, as the case may be, either the Representatives or the Company
21
<PAGE>
shall have the right to postpone Closing Time or the relevant Date of Delivery,
as the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section.
SECTION 11. Notices. All notices and other communications hereunder
----------- -------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 200 Crescent Court,
Suite 550, Dallas, Texas 75201, attention of Charles M. Davis, Jr.; and notices
to the Company shall be directed to it at 1800 Three Lincoln Centre, 5430 LBJ
Freeway, Dallas, Texas 75240, attention of Louis P. Gregory.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
----------- -------
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------- ----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
----------- ------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
22
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
ATMOS ENERGY CORPORATION
By: /s/ J. Patrick Reddy
---------------------------
Name: J. Patrick Reddy
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Warburg LLC
As Representatives of the several Underwriters
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Charles M. Davis, Jr.
-------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial
Name of Underwriter Securities
-------------------------------------------------------------------------- ------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith 3,920,000
Incorporated.....................................................
UBS Warburg LLC........................................................... 1,680,000
A.G. Edwards & Sons, Inc.................................................. 200,000
Edward D. Jones & Co., L.P................................................ 200,000
---------
Total........................................................... 6,000,000
=========
</TABLE>
<PAGE>
SCHEDULE B
ATMOS ENERGY CORPORATION
6,000,000 Shares of Common Stock
(No Par Value)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $22.25.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $21.14, being an amount equal to the initial
public offering price set forth above less $1.11 per share; provided that
the purchase price per share for any Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not
payable on the Option Securities.
<PAGE>
SCHEDULE C
List of Subsidiaries
--------------------
1. Atmos Energy Holdings, Inc.
2. Atmos Energy Services, Inc.
3. Atmos Energy Marketing, LLC
<PAGE>
SCHEDULE D
List of Persons and Entities Subject to Lock-Up
-----------------------------------------------
Directors
---------
Robert W. Best, Chairman
Travis W. Bain
Dan Busbee
Richard W. Cardin
Thomas J. Garland
Gene C. Koonce
Vincent J. Lewis
Thomas C. Meredith
Phillip E. Nichol
Carl S. Quinn
Charles K. Vaughan
Richard Ware
Honorary Director
-----------------
Lee E. Schlessman
Corporate Officers, Business Unit Presidents and Other Individuals
------------------------------------------------------------------
John P. Reddy
Louis P. Gregory
R. Earl Fischer
Wynn D. McGregor
Cleaburne H. Fritz
Shirley A. Hines
Lynn L. Hord
Ronald W. McDowell
Robert E. Mattingly
Fred E. Meisenheimer
Thomas Pearson
Gordon J. Roy
Laurie M. Sherwood
Thomas R. Blose, Jr.
Tom S. Hawkins, Jr.
Conrad Gruber
B. J. Hackler
Gary L. Schlessman
J.D. Woodward
<PAGE>
Exhibit A
---------
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Texas.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and the Company's Annual Report on Form 10-K for the year ended
September 30, 2000 (the "Form 10-K") and to enter into and perform its
obligations under the Purchase Agreement.
(iii) The Securities to be purchased by the Underwriters have been
duly authorized for issuance and sale to the Underwriters pursuant to the
Purchase Agreement and, when issued and delivered by the Company pursuant to the
Purchase Agreement against payment of the consideration set forth in the
Purchase Agreement, will be validly issued and fully paid and non-assessable and
no holder of the Securities is or will be subject to personal liability by
reason of being such a holder.
(iv) The issuance of the Securities is not subject to the preemptive
or other similar rights of any securityholder of the Company provided in the
charter or bylaws of the Company or by statute.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(vii) The Registration Statement, including any Rule 462(b)
Registration Statement and the Rule 430A Information, the Prospectus, including
the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, including the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules and other
financial data included therein or omitted therefrom, as to which we express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, as applicable.
<PAGE>
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we 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 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the Commission thereunder.
(ix) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and bylaws of the Company and
the requirements of the New York Stock Exchange.
(x) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder or that are required to be described in
the Prospectus or the Form 10-K that are not described as required (except for
regulatory proceedings, as to which we express no opinion).
(xi) The information in the Registration Statement under
"Description of Common Stock" and under Item 15 in the Prospectus, to the extent
that it constitutes matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions, has been reviewed
by us and is correct in all material respects.
(xii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states or the regulatory authorities
of the various states, as to which we express no opinion) is necessary or
required in connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance, sale or delivery of the
Securities.
(xiii) The execution, delivery and performance of the Purchase
Agreement and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by the Company with its obligations under the Purchase Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a) (xi) of the Purchase Agreement) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, any document filed as an
exhibit to the Registration Statement or the Form 10-K or any document
incorporated as an exhibit into the Registration Statement or Form 10-K by
reference to another filing by the Company (except for such conflicts, breaches
or defaults or liens, charges or
A-2
<PAGE>
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or bylaws of the
Company or any applicable law, statute, rule, regulation, judgment, order, writ
or decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
properties, assets or operations (other than as to regulatory matters, as to
which we express no opinion).
(xiv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
(xv) The Rights under the Company's Shareholder Rights Agreement,
dated November 12, 1997, as amended, to which holders of the Securities will be
entitled, have been duly authorized and, when issued and delivered by the
Company pursuant to the terms therein, will be validly issued.
(xvi) To the best of our knowledge, no person or corporation which is
a "holding company" or a "subsidiary of a holding company", within the meaning
of such terms as defined in the Public Utility Holding Company Act of 1935,
directly or indirectly owns, controls or holds with power to vote 10% or more of
the outstanding voting securities of the Company; and the Company is not a
"holding company" or to the best of our knowledge, a "subsidiary of a holding
company" as so defined.
During the course of the preparation of the Registration Statement and
the Prospectus, we have participated in conferences with representatives of the
Company and the Underwriters at which the contents of the Registration Statement
and the Prospectus and related matters were discussed. Based upon the
foregoing, no facts have come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the Rule
430A Information (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which we make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we make no statement), at
the time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Except as
specifically noted in the opinions set forth in paragraphs (iii), (iv) and (ix),
above, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements included in the
Registration Statement and the Prospectus and we have not independently verified
the accuracy, completeness or fairness of such statements.
In rendering such opinion, such counsel may state that its opinion is
limited to the Federal laws of the United States and the laws of the State of
Texas. Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written
A-3
<PAGE>
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-4
<PAGE>
Exhibit B
---------
FORM OF OPINION OF VIRGINIA COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)(ii)
(i) The Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Virginia.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and in the most recent Form 10-K filed by the Company, and to enter
into and perform its obligations under the Purchase Agreement.
(iii) The Securities to be purchased by the Underwriters have been
duly authorized for issuance and sale to the Underwriters pursuant to the
Purchase Agreement and, when issued and delivered by the Company pursuant to the
Purchase Agreement against payment of the consideration set forth in the
Purchase Agreement, will be validly issued and fully paid and non-assessable and
no holder of the Securities is or will be subject to personal liability by
reason of being such a holder.
(iv) The issuance of the Securities is not subject to the preemptive
or other similar rights of any securityholder of the Company provided in the
charter or bylaws of the Company or by statute.
(v) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and bylaws of the Company.
(vi) The Rights under the Company's Shareholder Rights Agreement,
dated November 12, 1997, as amended, to which holders of the Securities will be
entitled, have been duly authorized and, when issued and delivered by the
Company pursuant to the terms therein, will be validly issued.
In rendering such opinion, such counsel may state that its opinion is
limited to the Federal laws of the United States and the laws of the
Commonwealth of Virginia.
<PAGE>
Exhibit C
---------
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)(iii)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Texas and the
Commonwealth of Virginia.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and in the Company's Annual Report on Form 10-K for the year ended
September 30, 2000 (the "Form 10-K") and to enter into and perform its
obligations under the Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any, pursuant
to the Purchase Agreement or pursuant to reservations, agreements, employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) Each subsidiary (other than EnerMart Trust, a Pennsylvania
business trust ("EnerMart Trust") and Energas Energy Services Trust, a
Pennsylvania business trust ("EnerGas Trust"),) has been duly incorporated or
formed, as the case may be, and is validly existing as an entity in good
standing under the laws of the jurisdiction of its incorporation or formation,
as the case may be, has the power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and the
Form 10-K and is duly qualified as a foreign entity to transact business and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
subsidiary or limited liability company membership interests of each subsidiary
(other than EnerMart Trust and EnerGas Trust) has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock or
<PAGE>
limited liability company membership interests of any subsidiary (other than
EnerMart Trust and EnerGas Trust) was issued in violation of the preemptive or
similar rights of any securityholder of such subsidiary.
(vi) EnerMart Trust and EnerGas Trust has been duly organized and
validly existing as a business trust under laws of the Commonwealth of
Pennsylvania, has power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and the Form 10-K, is
duly qualified as a foreign business trust to transact business and is in good
standing in each jurisdiction in which such qualification is required, except
where the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect and is wholly-owned, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and data and supporting schedules included
therein or omitted therefrom, as to which I need express no opinion), when they
were filed with the Commission complied as to form in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations.
(ix) To the best of my knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder or that are required to be described in
the Prospectus or the Form 10-K that are not described as required.
(x) The information in (a) the Prospectus under "Prospectus
Supplement Summary--Recent Developments", "Prospectus Supplement Summary--
Pending Louisiana Acquisition", "Business--Regulation", "Business-Rates",
"Business-Properties" and "Business-Competition", (b) the Form 10-K under "Part
I, Item 1-Business-Regulation", "Part I, Item 1-Business-Rates", "Item 2-
Properties" and Item 3-Litigation Matters and (c) Note 5 to the Company's 2000
Consolidated Financial Statements (contained in the Form 10-K), to the extent
that it constitutes matters of law, summaries of legal matters, the Company's
Restated Articles of Incorporation, as amended, and Amended and Restated Bylaws
or legal proceedings, or legal conclusions, has been reviewed by me and is
correct in all material respects.
(xi) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus or Form 10-K
that are not described as required.
(xii) All descriptions in the Registration Statement, Prospectus and
Form 10-K of contracts and other documents to which the Company or its
subsidiaries are a party are
C-2
<PAGE>
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement, Prospectus and Form 10-K or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(xiii) To the best of my knowledge, neither the Company nor any
subsidiary is in violation of its charter or bylaws and no default by the
Company or the charter, bylaws or other organizational documents of any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement, the
Prospectus or Form 10-K or filed or incorporated by reference as an exhibit to
the Registration Statement.
(xiv) The material franchises, permits and rights of the Company and
its subsidiaries in each jurisdiction in which such franchise, permit or right
is required are valid and adequate for the business in which it is engaged, and
there do not exist, to the best of my knowledge, any restrictions in connection
therewith that, solely or in the aggregate, would result in a Material Adverse
Effect.
(xv) There have been issued and, as of the dated hereof, are in
full force and effect orders or authorizations of the regulatory authorities of
Colorado, Georgia, Illinois, Kentucky, Missouri, and Virginia, respectively,
authorizing the issuance and sale of the Securities on the terms set forth or
contemplated in the Purchase Agreement; and no other filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations, which have
obtained, or as may be required under the securities or blue sky laws of the
various states, as to which I express no opinion), is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement or for the offering, issuance, sale or delivery of the Securities.
(xvi) The execution, delivery and performance of the Purchase
Agreement and the Securities and the consummation of the transactions
contemplated in the Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations under the
Purchase Agreement and the Securities do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xiv) of the Purchase Agreement) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
C-3
<PAGE>
Adverse Effect), nor will such action result in any violation of the provisions
of the charter and bylaws of the Company or the charter, bylaws or other
organizational documents of any subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to me, of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their respective
properties, assets or operations.
Nothing has come to my attention that would lead me to believe that
the Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable) (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which I make no statement), at the
time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which I make no
statement), at the time the Prospectus was issued, at the time any such amended
or supplemented prospectus was issued or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that his opinion is
limited to the Federal laws of the United States, the laws of the State of Texas
and the Virginia Stock Corporation Act.
C-4
<PAGE>
Exhibit D
---------
FORM OF LOCK-UP LETTER FROM DIRECTORS AND
OFFICERS PURSUANT TO SECTION 5(i)
December 11, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Warburg LLC
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Re: Proposed Public Offering by Atmos Energy Corporation
----------------------------------------------------
Dear Sirs:
The undersigned, a stockholder and/or officer and/or director of Atmos
Energy Corporation, a Texas and Virginia corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and the underwriters named in the within-
mentioned purchase agreement propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company providing for the public offering of
shares (the "Securities") of the Company's common stock, no par value (the
"Common Stock"). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder and/or as an officer and/or as a
director of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the Purchase Agreement that, during a
period of 90 days from the date of the Purchase Agreement, the undersigned will
not, without the prior written consent of Merrill Lynch, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer any shares of the
Company's Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of
<PAGE>
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:____________________________
Print Name:___________________________
D-2
<PAGE>
Annex A
-------
FORM OF ACCOUNTANTS' COMFORT LETTER
PURSUANT TO SECTION 5(e)
December 14, 2000
The Board of Directors
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
250 Vesey Street
New York, New York 10281
UBS Warburg LLC
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
We have audited the consolidated balance sheets of Atmos Energy Corporation (the
"Company") as of September 30, 2000 and 1999 and the consolidated statements of
income, shareholders' equity, and cash flows for each of the three years in the
period ended September 30, 2000, and the related schedule, all included in the
Company's Annual Report on Form 10-K for the year ended September 30, 2000 and
incorporated by reference in the Registration Statement (No. 333-93705) on Form
S-3 filed by the Company under the Securities Act of 1933 (the "Act"); our
reports with respect thereto also are incorporated by reference in such
Registration Statement in the form in which it became effective, the Prospectus
dated November 7, 2000 and the Prospectus Supplement dated December 14, 2000,
herein collectively referred to as the "Registration Statement"
In connection with the Registration Statement:
1. We are independent auditors with respect to the Company within the meaning
of the Act and the applicable rules and regulations thereunder adopted by
the SEC.
<PAGE>
2. In our opinion, the consolidated financial statements and financial
statement schedule audited by us and included in the Company's Annual
Report on Form 10-K at September 30, 2000 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 Securities
Exchange Act of 1934 (the "Exchange Act") and the related rules and
regulations adopted by the SEC.
3. We have not audited any financial statements of the Company as of any date
or for any period subsequent to September 30, 2000. The purpose, and
therefore the scope, of our audit for the year ended September 30, 2000 was
to enable us to express our opinion on the consolidated financial
statements at September 30, 2000 and for the year then ended, but not on
the financial statements for any interim period within such year.
4. For purposes of this letter, we have read the fiscal 2001 minutes of
meetings of the shareholders and the Board of Directors and other
committees of the Company as set forth in the minute books through December
12, 2000, officials of the Company having advised us that the minutes of
all such meetings through that date were set forth therein, and have
carried out other procedures to December 12, 2000 as follows (our work did
not extend to the period from December 13, 2000 to December 14, 2000,
inclusive):
a. With respect to the period from October 1, 2000 to October 31, 2000,
we have:
(1) read the unaudited consolidated balance sheet and income
statement for October 2000 furnished to us by the Company,
officials of the Company having advised us that no such financial
statements as of any date or for any period subsequent to October
31, 2000 were available; and
(2) inquired of certain officials of the Company who have
responsibility for financial and accounting matters as to whether
the unaudited consolidated balance sheet and income statement
referred to under a.(1) are stated on a basis substantially
consistent with that of the audited consolidated financial
statements included in the Registration Statement.
The foregoing procedures do not constitute an audit conducted in accordance
with auditing standards generally accepted in the United States. Also, they
would not necessarily reveal matters of significance with respect to the
comments in the following paragraph. Accordingly, we make no representations
as to the sufficiency of the foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures that
caused us to believe that:
a. any material modifications should be made to the audited consolidated
financial statements described in 2. above, incorporated by reference
in the Registration Statement, for them to be in conformity with
accounting principles generally accepted in the United States;
Annex A-2
<PAGE>
b. (i) at October 31, 2000, there was any change in the capital stock,
increase in long-term debt or decrease in consolidated net current assets
or shareholders' equity of the consolidated Company as compared with the
amounts shown in the September 30, 2000 audited consolidated balance sheet
incorporated by reference in the Registration Statement; or (ii) for the
period from October 1, 2000 to October 31, 2000, there was any decrease, as
compared with the corresponding period in the preceding year, in
consolidated net sales or in the total or per-share amounts of consolidated
net income, except in all instances for changes, increases, or decreases
that the Registration Statement discloses have occurred or may occur and
except as set forth below (in thousands, except per share data):
Net Current Long-term
Assets Shareholders' Debt (including
(Liabilities) Equity current maturities)
----------- ------ ------------------
September 30, 2000 $(164,313) $392,476 $380,764
October 31, 2000 $(158,477) $393,263 $380,698
Operating Net Income Net Income (Loss)
Revenues (Loss) per diluted share
-------- ------ -----------------
One month ended
October, 31, 1999 $ 48,637 $ (663) $ (0.021)
One month ended
October 31, 2000 $ 62,541 $ (100) $ (0.003)
6. As mentioned under 4.a. above, Company officials have advised us that no
consolidated financial statements as of any date or for any period
subsequent to October 31, 2000 are available; accordingly, the procedures
carried out by us with respect to changes in financial statement items
after October 31, 2000 have, of necessity, been even more limited than
those with respect to the periods referred to in 4. above. We have inquired
of certain officials of the Company who have responsibility for financial
and accounting matters as to whether: (i) at December 12, 2000 there was
any change in the capital stock, increase in long-term debt or any
decreases in consolidated net current assets or shareholders' equity of the
consolidated Company as compared with the amounts shown on the September
30, 2000 audited consolidated balance sheet incorporated by reference in
the Registration Statement, or (ii) for the period from October 1, 2000 to
December 12, 2000, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated net sales or in
the total or per-share amounts of
Annex A-3
<PAGE>
consolidated net income. On the basis of these inquiries and our reading of
the minutes as described in 4. above, nothing came to our attention that
caused us to believe that there was any such change, increase, or decrease,
except in all instances for changes, increases, or decreases that the
Registration Statement discloses have occurred or may occur.
7. For the purposes of this letter, we have also read the items identified by
you on the attached copies of pages from the Registration Statement
included as Exhibit I, and have performed the following procedures, which
were applied as indicated by the symbols explained below:
A Compared or recomputed the dollar amounts to the amounts in the
audited consolidated financial statements described in the
introductory paragraph of this letter or, for prior years, included in
the Company's Annual Reports on Form 10-K, as restated if applicable,
for the fiscal years 1998, 1997 and 1996 to the extent such amounts
are included in or can be derived from such statements and found them
to be in agreement.
B Compared the dollar and other amounts not derived directly from
audited consolidated financial statements to amounts in the Company's
accounting records to the extent such amounts could be so compared
directly and found them to be in agreement.
C Compared the dollar and other amounts to the rate orders as filed with
the respective state's regulatory commission, to the extent that such
amounts are included in or can be derived from such documents and
found them to be in agreement.
D Proved the arithmetic accuracy of the dollar amounts or percentages
based on the data in the above mentioned financial statements,
accounting records and analyses.
E Compared the dollar amounts to the minutes of the meeting of the
Company's Board of Directors to the extent such amounts are included
or can be derived from such minutes, and found them to be in
agreement.
F Compared the dollar amounts to the executed agreement between the
Company and the other party to the extent such amounts included can be
derived from such agreement and found them to be in agreement.
8. At your request, we have read and performed procedures with regard to the
following as set forth in the Registration Statement on the indicated
pages.
Item Page Description
a. S-5 "Capitalization." The amounts and number of shares under the
captions "Actual as of September 30, 2000" and "As Adjusted."
Annex A-4
<PAGE>
With respect to item 8.a., we compared the amounts and number of shares
listed under the caption "Actual as of September 30, 2000" to the
corresponding amounts and number of shares shown in an analysis prepared by
the Company and found them to be in agreement. We compared the amounts and
number of shares in the Company's analysis to balances in the appropriate
accounts in the Company's accounting records and found them to be in
agreement. We compared the amounts and number of shares listed under the
caption "As Adjusted" to the amounts and number of shares listed under the
caption "Actual" adjusted for the issuance of the shares of common stock to
be offered by means of the Registration Statement and for the proposed use
of the proceeds thereof to prepay portions of certain short-term debt, as
described under "Use of Proceeds,'' and found such amounts and number of
shares to be in agreement (however, we do not comment as to the
reasonableness of the "Use of Proceeds" or whether such use will actually
take place).
9. This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Company in connection with the offering of the securities
covered by the Registration Statement, and is not to be used, circulated,
quoted or otherwise referred to within or without the underwriting group
for any other purpose, including, but not limited to, the registration,
purchase, or sale of securities, nor is it to be filed with or referred to
in whole or in part in the Registration Statement or any other document,
except that reference may be made to it in the underwriting agreement or
any list of closing documents pertaining to the offering of the securities
covered by the Registration Statement.
Very truly yours,
Annex A-5
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Representations and Warranties................................................................ 3
(a) Representations and Warranties by the Company................................................. 3
(i) Compliance with Registration Requirements............................................ 3
(ii) Incorporated Documents............................................................... 4
(iii) Independent Accountants.............................................................. 4
(iv) Financial Statements................................................................. 4
(v) No Material Adverse Change in Business............................................... 4
(vi) Good Standing of the Company......................................................... 5
(vii) Good Standing of Subsidiaries........................................................ 5
(viii) Capitalization....................................................................... 5
(ix) Authorization of Agreement........................................................... 5
(x) Authorization and Description of Securities.......................................... 6
(xi) Absence of Defaults and Conflicts.................................................... 6
(xii) Absence of Labor Dispute............................................................. 6
(xiii) Absence of Proceedings............................................................... 7
(xiv) Accuracy of Exhibits................................................................. 7
(xv) Possession of Intellectual Property.................................................. 7
(xvi) Absence of Further Requirements...................................................... 7
(xvii) Possession of Licenses and Permits................................................... 8
(xviii) Title to Property.................................................................... 8
(xix) Investment Company Act............................................................... 8
(xx) Environmental Laws................................................................... 8
(xxi) Registration Rights.................................................................. 9
(b) Officer's Certificates........................................................................ 9
SECTION 2. Sale and Delivery to Underwriters; Closing.................................................... 9
(a) Initial Securities............................................................................ 9
(b) Option Securities............................................................................. 9
(c) Payment....................................................................................... 10
(d) Denominations; Registration................................................................... 10
SECTION 3. Covenants of the Company...................................................................... 10
(a) Compliance with Securities Regulations and Commission Requests................................ 10
(b) Filing of Amendments.......................................................................... 11
(c) Delivery of Registration Statements........................................................... 11
(d) Delivery of Prospectuses...................................................................... 11
(e) Continued Compliance with Securities Laws..................................................... 12
(f) Blue Sky Qualifications....................................................................... 12
(g) Rule 158...................................................................................... 12
(h) Use of Proceeds............................................................................... 12
</TABLE>
<PAGE>
<TABLE>
<S> <C>
(i) Listing....................................................................................... 13
(j) Restriction on Sale of Securities............................................................. 13
(k) Reporting Requirements........................................................................ 13
SECTION 4. Payment of Expenses........................................................................... 13
(a) Expenses...................................................................................... 13
(b) Termination of Agreement...................................................................... 14
SECTION 5. Conditions of Underwriters' Obligations....................................................... 14
(a) Effectiveness of Registration Statement....................................................... 14
(b) Opinion of Counsel for Company................................................................ 14
(c) Opinion of Counsel for Underwriters........................................................... 15
(d) Officers' Certificate......................................................................... 15
(e) Accountants' Comfort Letter................................................................... 15
(f) Bring-down Comfort Letter..................................................................... 15
(g) Approval of Listing........................................................................... 15
(h) No Objection.................................................................................. 15
(i) Lock-up Agreements............................................................................ 16
(j) Conditions to Purchase of Option Securities................................................... 16
(k) Additional Documents.......................................................................... 16
(l) Termination of Agreement...................................................................... 17
SECTION 6. Indemnification............................................................................... 17
(a) Indemnification of Underwriters............................................................... 17
(b) Indemnification of Company, Directors and Officers............................................ 18
(c) Actions Against Parties; Notification......................................................... 18
(d) Settlement Without Consent If Failure to Reimburse............................................ 19
SECTION 7. Contribution.................................................................................. 19
SECTION 8. Representations, Warranties and Agreements to Survive Delivery................................ 20
SECTION 9. Termination of Agreement...................................................................... 20
(a) Termination; General.......................................................................... 20
(b) Liabilities................................................................................... 21
SECTION 10. Default by One or More of the Underwriters.................................................... 21
SECTION 11. Notices....................................................................................... 22
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 12. Parties....................................................................................... 22
SECTION 13. GOVERNING LAW AND TIME........................................................................ 22
SECTION 14. Effect of Headings............................................................................ 22
</TABLE>
SCHEDULES
Schedule A - List of Underwriters
Schedule B - Pricing Information
Schedule C - List of Subsidiaries
Schedule D - List of Persons and Entities Subject to Lock-up
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
Exhibit B - Form of Opinion of Virginia Counsel to the Company
Exhibit C - Form of Opinion of General Counsel of the Company
Exhibit D - Form of Lock-up Letter
ANNEXES
Annex A - Form of Accountants' Comfort Letter
iii
