SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
March 11, 1994 July 14, 1992
______________ _______________
(Date of earliest
event reported)
PUGET SOUND POWER & LIGHT COMPANY
____________________________________________________
(Exact name of registrant as specified in its charter)
Washington 1-4393 91-0374630
______________ __________ ____________
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification
incorporation) No.)
411-108th Avenue N.E.
Bellevue, Washington 98004-5515
_______________________________
(Address of principal executive
offices, including zip code)
(206) 454-6363
_______________________________
(Registrant's telephone number,
including area code)
Item 7. Exhibits
1.1 Underwriting Agreement dated as of July 14, 1992 between
Puget Sound Power & Light Company and Merrill Lynch Pierce,
Fenner & Smith Incorporated, Kidder Peabody & Co. Incorporated,
and Shearson Lehman Brothers Inc.
1.2 Underwriting Agreement dated as of January 26, 1994 between
Puget Sound Power & Light Company and Lehman Brothers Inc.,
Merrill Lynch Pierce, Fenner & Smith Incorporated and Smith
Barney Shearson Inc.
Signature
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Dated: March 11, 1994
PUGET SOUND POWER & LIGHT COMPANY
By Robert P. Bariletti
_____________________________
Robert P. Bariletti
Assistant Treasurer
EXHIBIT 1.1
__________________________________
PUGET SOUND POWER & LIGHT COMPANY
3,000,000 Shares
7 7/8% Series Preferred Stock
(Cumulative, $25 Par Value)
UNDERWRITING AGREEMENT
New York, New York
July 14, 1992
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Kidder, Peabody & Co. Incorporated
Shearson Lehman Brothers Inc.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Dear Sirs:
The undersigned, Puget Sound Power & Light Company, a Washington
corporation (the "Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), its Preferred Stock of the
designation and par value, with the terms and in the aggregate number of
shares specified in Schedule I hereto (the "Securities"). The Securities are
more fully described in the Prospectus hereinafter referred to. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section l. Certain terms used in this Agreement are defined in paragraph (i)
hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have used a
preliminary prospectus supplement (the "Preliminary Prospectus") to the basic
prospectus included in such registration statement, which describes the
Securities and the offering thereof and is used prior to filing of the
Prospectus Supplement (as defined in the next sentence). Promptly upon the
execution of this Agreement, the Company will prepare and file with the
Commission, with your consent, a prospectus supplement relating to the
Securities (the "Prospectus Supplement") pursuant to Rule 424 of the rules
and regulations of the Commission under the Act. Such registration
statement, including the basic prospectus, financial statements, documents
incorporated therein by reference and exhibits, when it became effective, is
hereinafter called the "Registration Statement" and the basic prospectus as
it may have been amended or supplemented prior to the date of this Agreement
(but excluding any prospectus supplement relating to the offering of
securities registered under the Registration Statement other than the
Securities) and as supplemented by the Prospectus Supplement, including all
documents incorporated or deemed to be incorporated therein by reference, is
hereinafter called the "Prospectus."
(b) The Registration Statement, at the time it became
effective, and any post-effective amendment thereof, at the time it becomes
effective, fully complied or will fully comply with the provisions of the Act
and the rules under the Act and did not or will not contain any untrue
statement of a material fact and did not or will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and the Prospectus, at the date of this
Agreement and the Closing Date (as hereinafter defined), and any amendment
thereof or supplement or addition thereto, fully complied or will fully
comply with the provisions of the Act and the rules under the Act and did not
contain or will not contain an untrue statement of a material fact and did
not omit or will not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; the documents
incorporated by reference in the Registration Statement and the Prospectus,
at the time the Registration Statement became effective, and at the date of
this Agreement, complied in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations of the Commission thereunder applicable to such
documents, and any documents deemed to be incorporated by reference in the
Prospectus subsequent thereto up to and including the Closing Date, will,
when they are filed with the Commission, comply in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder applicable to such documents; provided, however, that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof.
(c) The Company has taken all corporate action necessary to be
taken by it to authorize the execution hereof by it and the performance by it
of all obligations on its part to be performed hereunder; and the
consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, or other agreement or instrument to which the Company is now a
party, or the charter of the Company, as amended, or any order, rule or
regulation applicable to the Company of any Federal or state regulatory board
or body or administrative agency having jurisdiction over the Company or over
its property.
(d) Other than approvals that may be required under state
securities laws and the approval of the Washington Utilities and
Transportation Commission, no other approval of any regulatory public body,
state or Federal, is, or will be at the Closing Date, necessary in connection
with the issuance and sale of the Securities pursuant to this Agreement.
(e) Coopers & Lybrand are independent accountants with respect
to the Company as required by the Act and the rules thereunder.
(f) The consolidated financial statements filed with or as part
of the Registration Statement present fairly the financial position, results
of operations and changes in financial position of the Company and its
subsidiaries at the respective dates and for the respective periods
indicated, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The Company
has no material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set
forth in the Registration Statement and the Prospectus, there has not been
any material adverse change in the condition (financial or other), earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business.
(h) The Securities conform to the description thereof contained
in the Prospectus and are duly and validly authorized, and, when delivered to
the Underwriters as provided herein, against payment of the consideration set
forth in Schedule I hereto, will be validly issued and outstanding, fully-
paid and non-assessable with no personal liability attaching to the ownership
thereof.
(i) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Closing Date" shall have the meaning set forth in Section 3
hereof. "Rule 415", "Rule 424" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before
the Effective Date of the Registration Statement or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement
or the issue date of any Preliminary Prospectus or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations, warranties and agreements herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in Schedule I hereto, the number of shares
of the Securities set forth opposite such Underwriter's name in Schedule II
hereto, except that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective number of shares of
the Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Securities to
be purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities". The Company agrees to pay to the
Representatives for the respective accounts of the Underwriters, an amount
equal to the product of (i) the Underwriters' Compensation per share
specified in Schedule I hereto and (ii) the numbers of shares specified in
Schedule I hereto.
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially
in the form of Schedule III hereto but such changes therein as the Company
may authorize or approve. The underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, an
amount equal to the product of (i) the Underwriters' Compensation per share
specified in Schedule I hereto and (ii) the number of shares of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged
by the Underwriters have been approved by the Company but, except as the
Company may otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum number of shares set forth in Schedule I hereto and
the aggregate number of shares of Contract Securities may not exceed the
maximum number of shares set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The number of shares of the Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total number
of shares of Contract Securities as the number of shares of the Securities
set forth opposite the name of such Underwriter bears to the aggregate number
of shares set forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such proportion and
so advise the Company in writing; provided, however, that the total number of
shares of the Securities to be purchased by all Underwriters shall be the
aggregate number of shares set forth in Schedule II hereto less the aggregate
number of shares of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities and payment of the Underwriters' Compensation shall
be made at the office, on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the
order of the Company by certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next day funds or as
otherwise agreed upon between the Company and the Representatives. Payment of
the Underwriters' Compensation shall be made by the Company to the
Representatives for the accounts of the Underwriters by certified or official
bank check or checks drawn on or by a New York Clearing House bank and
payable in next day funds or as otherwise agreed upon between the Company and
the Representatives. Delivery of the Underwriters' Securities shall be made
at such location as the Representatives shall reasonably designate at least
one business day in advance of the Closing Date and payment for the
Securities shall be made at the office specified in Schedule I hereto. The
Underwriters' Securities shall be in definitive form and shall be registered
in such names and in such denominations as the Representatives may request
not less than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 P.M. on the business day prior to the Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Underwriters' Securities for sale to the
public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment to the
Registration Statement or supplement to the Prospectus (other than any
prospectus supplement relating to the offering of securities registered under
the Registration Statement other than the Securities and permitted by Section
5(h) hereof, or any document required to be filed under the Exchange Act
which upon filing is deemed to be incorporated by reference in the
Registration Statement or the Prospectus) unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (i) when the
Registration Statement, if not effective at Execution Time, and any amendment
thereto, shall become effective, (ii) when the Prospectus Supplement, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (iii) when prior to the termination of the offering of the
Securities any amendment to the Registration Statement relating to the
Securities shall have been filed or become effective, (iv) of any request by
the Commission for any amendment of the Registration Statement or supplement
to the Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or suspension and, if issued or suspended, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company promptly
will prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earning
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and to
counsel for the Underwriters, without charge, a signed copy of the
Registration Statement as originally filed and of each amendment thereto,
including copies of all documents incorporated by reference therein, all
powers of attorney, consents and exhibits filed therewith (other than
exhibits incorporated by reference), and will deliver to the Representatives
conformed copies of the Registration Statement, any Preliminary Prospectus
and the Prospectus, including any documents incorporated by reference therein
at or after the date thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, all amendments of and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request.
(e) The Company will arrange for qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities.
(f) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs
and expenses incident to the performance of its obligations hereunder,
including, without limiting the generality of the foregoing, (i) the
preparation and filing by it of the Registration Statement and the Prospectus
Supplement and the printing and delivery of any Preliminary Prospectus and
this Agreement, (ii) the preparation, issue and delivery of the Securities,
(iii) the printing and distribution of all documents in connection with the
underwriting contemplated herein, (iv) all expenses, including fees and
disbursements of counsel, incurred in connection with qualifying the
Securities under state securities or "blue sky" laws and the preparation of
surveys with respect thereto, (v) all taxes, if any, except transfer taxes,
on the issue of the Securities, and (vi) all rating agency fees.
(g) For a period of five calendar years from the Effective
Date, the Company will furnish (or cause to be furnished) to each of the
Representatives, upon request, copies of (i) all reports to stockholders of
the Company and (ii) all reports and financial statements filed with the
Commission or any national securities exchange.
(h) During the period beginning from the Execution Time and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Securities, as notified to the Company by the
Representatives, or (ii) the fifth day after the Closing Date, the Company
will not offer, sell, contract to sell or otherwise dispose of any of its
Preferred Stock (other than the Securities), except under prior or concurrent
contractual commitments which have been disclosed to the Representatives,
without the prior written consent of the Representatives, which consent shall
not be unreasonably withheld.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, as of the date
of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document incorporated
by reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Washington Utilities and Transportation Commission
shall, prior to the Closing Date, have issued an order or orders permitting
the issuance and sale of the Securities on terms consistent with this
Agreement and such order or orders shall be in full force and effect on the
Closing Date and will not be subject to any appeal.
(c) At the Closing Date the Representatives shall receive a
favorable opinion of counsel for the Company, Perkins Coie, to the effect
that:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Washington, with adequate corporate powers to own its properties and carry on
the business in which it is now engaged; the Company is duly qualified as a
foreign corporation to own property and transact business in, and is in good
standing in, the State of Montana and has adequate corporate powers to own
and operate its properties in that State; and the Company is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each other jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business;
(ii) the Company holds such franchises, permits and licenses
as are reasonably adequate to enable the Company to carry on its business as
presently conducted, and, as to any franchises, permits and licenses which
the Company does not hold, the absence thereof will not materially adversely
affect the operations, business and properties of the Company as a whole;
(iii) the order or orders of the Washington Utilities and
Transportation Commission referred to in paragraph (b) of this Section 6 are
valid orders in full force and effect on the Closing Date; said orders
authorize the issuance and sale of the Securities on terms consistent with
this Agreement and any Delayed Delivery Contracts, and no other
authorization, consent, or approval of any governmental authority is
necessary for the issuance and sale of the Securities, the performance of the
obligations of the Company under the Securities or the consummation of any of
the other transactions contemplated herein, except such as have been obtained
under the Act and for compliance with the provisions of applicable securities
or "blue sky" laws in connection with the sale of the Securities to the
public;
(iv) the Registration Statement and the Prospectus and each
amendment thereof or supplement thereto as of their respective effective or
issue dates, as the case may be, (except the financial statements and
schedules and other financial or statistical data included therein, as to
which such counsel need express no opinion, and except the documents
incorporated by reference in the Prospectus, as to which such counsel's
opinion is hereinbelow expressed) comply as to form in all material respects
with the requirements of the Act and the applicable instructions, rules and
regulations of the Commission thereunder; any required filing of the
Prospectus and any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); the
documents incorporated by reference in the Prospectus (except the financial
statements and schedules and other financial or statistical data included
therein, as to which such counsel need express no opinion), when filed with
the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Registration Statement and any
amendments thereto have become effective under the Act, no stop order has
been issued by the Commission suspending the effectiveness of the
Registration Statement, as amended, and no proceeding has been initiated or
threatened for that purpose; and the Securities conform to the descriptions
thereof and statements in regard thereto contained in the Registration
Statement and the Prospectus;
(v) the statements of law or conclusions of law made in the
Company's most recent annual report to the Commission on Form 10-K, in the
Company's quarterly reports to the Commission on Form 10-Q and current
reports on Form 8-K, if any, incorporated in the Registration Statement and
the Prospectus, which are identified in Schedule IV-A hereto, are correct
statements of law or conclusions of law, and the statements as to matters of
law and legal conclusions under the headings "Description of the Company's
Preferred Stock" and "Certain Terms of the New Preferred Stock" made in the
Prospectus are correct; the descriptions of the terms of all contracts and
other documents described in the Registration Statement and the Prospectus
are accurate, and, to such counsel's knowledge, all contracts and other
documents required to be filed as part of the Registration Statement,
including the Form 10-K, have been filed with, or incorporated by reference
in, the Registration Statement as exhibits; and the Company has not filed any
documents under the Exchange Act which are required to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 which have not
been so incorporated by reference;
(vi) the proceedings, to the extent that the Company is a
party thereto and that such counsel is lead counsel of record therein for the
Company, described in the Form 10-K, in the Company's quarterly reports to
the Commission on Form 10-Q and current reports on Form 8-K, if any,
incorporated in the Registration Statement and in the Prospectus, which are
identified in Schedule IV-B hereto, are all the legal and governmental
proceedings to which the Company is a party and in which such counsel is lead
counsel of record for the Company which are required to be described in the
Prospectus and the descriptions of such proceedings are accurate in all
material respects; and such counsel is not aware of any proceedings required
to be described in the Prospectus which are not described in the Prospectus;
(vii) the execution and delivery of this Agreement, the
issuance and sale of the Securities, the consummation of the transactions
herein and therein contemplated and the fulfillment of and compliance with
the terms hereof and thereof will not (A) result in a breach of any of the
terms, conditions or provisions of, constitute a default under, conflict with
the Restated Articles of Incorporation or Bylaws, both as amended to date, of
the Company or the terms of any indenture, mortgage, deed of trust or other
agreement or instrument, of which such counsel has knowledge, to which the
Company is a party or by which the Company or any of its properties or assets
may be bound or affected or (B) to the best of such counsel's knowledge,
after due inquiry, violate any judgment, order, writ, injunction, decree,
award, demand, law, license, rule or regulation applicable to the Company or
any court, arbitrator, grand jury, or of any governmental agency having
jurisdiction over the Company or any of its properties or assets;
(viii) proper corporate proceedings have been taken so that the
Securities have been duly established and the issuance and sale of the
Securities have been validly authorized, including all necessary action by
shareholders of the Company; upon the issuance and sale of the Securities
pursuant hereto and receipt of payment therefor in accordance herewith, the
Securities will have been validly issued and fully paid and will be
nonassessable; and based upon an examination thereof, the certificates used
to evidence the Securities are in due and proper form; and
(ix) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company.
In giving such opinion, said counsel may rely as to all matters of
the law of the State of Montana and legal conclusions based thereon upon the
opinion of local counsel satisfactory to you and Mudge Rose Guthrie Alexander
& Ferdon and as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
Such counsel shall also state that, although they are not passing upon
or assuming any responsibility for the accuracy, completeness or fairness of
any of the statements made in the Registration Statement or the Prospectus
except as stated in paragraph (c) (v) and (vi) of this Section 6, they have
reviewed the Registration Statement and the Prospectus, participated in
conferences with representatives of the Company, its accountants, and your
representatives and counsel, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed, and do not
know of any reason to believe that, at the Effective Date, the Registration
Statement and at the Execution Time, the Registration Statement, or any
amendment thereto, contained any 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, at the Execution Time
or the Closing Date, the Prospectus, as supplemented, included any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) At the Closing Date you shall receive the opinion of Mudge
Rose Guthrie Alexander & Ferdon covering the matters in the first clause of
(i); (iii) (other than the law of the State of Montana); (iv); (viii); and
(ix) of paragraph (c) of this Section 6. In giving such opinion, said
counsel may rely as to all matters of law of the State of Washington and
legal conclusions based thereon upon the opinion of counsel for the Company
called for by paragraph (c) of this Section 6 and as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials. Said opinion of Mudge Rose Guthrie Alexander &
Ferdon shall state that, although they are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of any of the
statements made in the Registration Statement or the Prospectus, they have
reviewed the Registration Statement and the Prospectus (other than the
financial statements and schedules and other financial and statistical data
contained therein as to which such counsel need express no opinion),
participated in conferences with representatives of the Company, its
accountants, its counsel and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed and do not know of any reason to believe that, at the Effective
Date, the Registration Statement and at the Execution Time, the Registration
Statement, or any amendment thereto, contained any 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,
at the Execution Time or the Closing Date, the Prospectus, as supplemented,
included any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) You shall have received a letter or letters from Coopers &
Lybrand in form and substance satisfactory to you (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date:
(i) confirming that they are independent public accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder;
(ii) stating that in their opinion the financial statements
and financial statement schedules incorporated by reference in the
Registration Statement and the Prospectus and reported on by them comply in
form in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and regulations;
(iii) stating that on the basis of a reading of the minutes of
meetings of the shareholders and of the Board of Directors of the Company as
set forth in the minute books to a specified date not more than five days
prior to the date of such letter, a reading of the latest available unaudited
interim financial statements, inquiries of certain personnel of the Company
who have responsibility for financial and accounting matters of the Company
and its subsidiaries and their other procedures set forth in such letter
which have been agreed to by you, nothing has come to their attention that
has caused them to believe that
(A) the unaudited financial statements, if any, included
or incorporated in the Registration Statement and the Prospectus are not
presented in conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited financial
statements incorporated by reference in the Registration Statement or do not
comply in form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder;
(B) the unaudited amounts in the "Selected Financial
Information", if any, included in the Prospectus do not agree with the
amounts set forth in the unaudited financial statements for the same periods
or were not determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements incorporated by
reference in the Registration Statement and the Prospectus; or
(C) if there are available unaudited interim financial
statements of the Company subsequent to the financial statements included or
incorporated in the Registration Statement and the Prospectus, at the date of
the latest available unaudited interim financial statements (i) there was any
change in the capital stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown on the balance sheet included in
the most recent financial statements included or incorporated in the
Registration Statement and the Prospectus or (ii), there was any decrease
during the twelve month period ended at the date of such latest available
unaudited interim financial statements as compared with the amounts shown for
the twelve month period set forth in the most recent financial statements
included or incorporated in the Registration Statement or Prospectus in
operating revenues, operating income, net income, earnings per common share
or the ratios of earnings to fixed charges and preferred stock dividends,
except, in all instances for changes, decreases or increases which the
Prospectus discloses have occurred or may occur, and except for any
declaration or payment of regular dividends, any issuance of shares of Common
Stock of the Company pursuant to the Company's stock purchase and dividend
reinvestment plan and the Company's employee investment plan and any required
sinking fund payments;
(iv) stating that on the basis of the reading of the minutes
and the inquiries of the personnel of the Company referred to in (iii) above,
nothing has come to their attention that has caused them to believe that, at
a specified date not more than five days prior to the date of such letter,
there was any change in the capital stock or long-term debt of the Company or
any decrease in net assets as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period from the date of
the latest available unaudited interim financial statements through such
specified date, there were any decreases as compared with the corresponding
period in the preceding year in operating revenues, operating income, net
income, earnings per common share or the ratios of earnings to fixed charges
and preferred stock dividends, except, in all instances, for changes,
decreases or increases which the Prospectus discloses have occurred or may
occur, and except for any declaration or payment of regular dividends, any
issuance of shares of Common Stock of the Company pursuant to the Company's
stock purchase and dividend reinvestment plan and the Company's employee
investment plan and any required sinking fund payments;
(v) stating that they have performed certain other specified
procedures with respect to certain amounts and percentages set forth in the
Registration Statement and the Prospectus as theretofore agreed upon by the
Representatives, and have found them to be in agreement with the records or
other specified materials of the Company and the computations to be
arithmetically correct; and
(vi) stating, with respect to the Ratios of Earnings to
Combined Fixed Charges and Preferred Stock Dividends set forth in the
Prospectus under the heading "Selected Financial Information" and Exhibit
(12) to the Registration Statement, that they found the amounts of earnings,
fixed charges and preferred stock dividends to be derived from the
appropriate accounting records of the Company and have checked the arithmetic
accuracy of the computations set forth, and they have read Item 503(d) of
Regulation S-K and the other applicable published rules and regulations
issued by the Commission under the Act and the Exchange Act and, under the
requirements of Item 503(d)(9) of Regulation S-K, the Pro Forma Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends does not
differ by 10 percent or more from the historical ratio after giving effect to
the issuance of the Securities.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Coopers & Lybrand shall have furnished to the Representatives
a letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been (i) any change,
decrease or increase specified in the letter or letters referred to in
paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and its subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signatory of such certificate has carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Company's rated securities by
Moody's Investors Service, Inc. or Standard & Poor's Corporation.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company
in writing or by telephone or telecopy confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or in any amendment
thereof, in any Preliminary Prospectus, or in the Prospectus or in any
amendment thereof or supplement thereto, including any document incorporated
or deemed to be incorporated by reference in any of such documents, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through the Representatives specifically for
use in connection with the preparation thereof, and (ii) such indemnity with
respect to a prospectus included in the Registration Statement or any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Prospectus
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of
a material fact contained in the such prospectus or any Preliminary
Prospectus was corrected in the Prospectus. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page and
under the heading "Underwriting" and, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Prospectus or the Prospectus Supplement, constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnifying party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (plus any local
counsel), approved by the Representatives in the case of paragraph (a) of
this Section 8, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum
of such discount and the purchase price per share of the Securities specified
in Schedule I hereto and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter (except as may
be provided in the Agreement among Underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the Underwriters'
Compensation applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who is not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of the Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (y) and (z) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the number of shares of the Securities set forth opposite their names
in Schedule II hereto bears to the aggregate number of shares of the
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
number of shares of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
number of shares of the Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any,
to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This Agreement will continue in effect until
terminated as provided in this Section 10. This Agreement shall be subject
to termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the Underwriters'
Securities, if prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as
to make it, in the judgment of the Representatives, impracticable to market
the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telecopied and confirmed to them, at the address
specified in Schedule I hereto, or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to it at 411-108th Avenue N.E.,
Bellevue, Washington 98004-5515, attention of the Secretary.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
PUGET SOUND POWER & LIGHT COMPANY
By: R. E. Olson
----------------------------
Name: R.E. Olson
Title: Vice President Finance & Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
KIDDER, PEABODY & CO.
INCORPORATED
SHEARSON LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: Anthony V. Leness
-----------------------
Name: Anthony V. Leness
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated July 14, 1992
Registration Statement No. 33-45916
Representatives:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Kidder, Peabody & Co. Incorporated
Shearson Lehman Brothers Inc.
Title, Purchase Price and Description of the Securities:
Title: 7 7/8% Series Preferred Stock (Cumulative, $25 Par Value)
Number of shares: 3,000,000
Purchase Price per share: $24.2125
Initial Public Offering Price per share: $25.00
Underwriters' Compensation per share: $0
Dividend Rights:
Dividends on the Securities will be payable quarterly at the rate
specified in its title on the 15th day of February, May, August and November
of each year. The first dividend on the Securities, which will accrue from
the date of original issue, will be $.13125 per share, payable on August 15,
1992. Dividends on the Securities will be cumulative from the date of
original issue.
Redemption Provisions:
The Securities will not be redeemable prior to July 15, 1997. On
and after such date, the Securities will be redeemable by the Company in
whole or in part at any time on not less than 30 days' notice at a
redemption price of $25 per share plus accrued dividends to the date of
redemption.
Sinking Fund Provisions:
The Securities will not be entitled to the benefit of any
sinking fund.
Other provisions: N/A
Closing Date, Time and Payment Office:
July 21, 1992
10:00 A.M. Eastern Standard Time
Mudge Rose Guthrie Alexander & Ferdon
180 Maiden Lane
New York, New York 10038
Delayed Delivery Arrangements: N/A
Fee:
Minimum number of shares of each contract:
Maximum number of shares of all contracts:
Modification of items to be covered by the letter from Coopers & Lybrand
delivered pursuant to Section 6(e) at the Execution Time:
N/A
Notices:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Kidder, Peabody & Co. Incorporated
Shearson Lehman Brothers Inc.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
SCHEDULE II
Number of Shares
of Securities to
Underwriters be Purchased
Merrill Lynch, Pierce, Fenner & Smith 1,000,000
Incorporated
Kidder, Peabody & Co. Incorporated 1,000,000
Shearson Lehman Brothers Inc. 1,000,000
----------
Total 3,000,000
SCHEDULE III
Delayed Delivery Contract
(Insert name and address
of lead Representative)
Dear Sirs:
The undersigned hereby agrees to purchase from Puget Sound Power &
Light Company (the "Company"), and the Company agrees to sell the
undersigned, on ___________, 1992, (the "Delivery Date"), ________ number of
shares of the Company's ________________ (the "Securities") offered by the
Company's Prospectus dated ________, 1992, receipt of a copy of which is
hereby acknowledged, at a purchase price of $________ per share from
________, 1992, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before 11:00 AM, New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telecopied communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate number of shares of the Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be subject
to the conditions (and neither party shall incur any liability by reason of
the failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject, and (2) the Company,
on or before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such number of shares of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Prospectus
mentioned above. Promptly after completion of such sale to the Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion of counsel
for the Company delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the Securities to be
sold and delivered, shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Securities pursuant to other
contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form
of acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
(Name of Purchaser)
By:
(Signature and Title of Officer)
(Address)
Accepted:
Puget Sound Power & Light Company
By:
(Authorized Signature)
SCHEDULE IV-A
1991 Annual Report on Form 10-K:
Part I
Item 1. "Business-Regulation and Rates" (first paragraph)
Part II
Financial Statement, Note 2 (first paragraph)
March 31, 1992 Quarterly Report: N/A
Current Reports on Form 8-K for 1992: N/A
SCHEDULE IV-B
1991 Annual Report on Form 10-K:
Part I
Item 1. "Business-Power Resources" (fourteenth, sixteenth and
seventeenth paragraphs)
"Environment" (second and fourth paragraphs)
Part II
Item 7. "Management's Discussion and Analysis of Financial Condition and
Results of Operations
-Operating Revenues" (first and fourth paragraphs)
-Operating Expenses (sixth and eighth paragraphs)
-Rate Matters
Financial Statements, Note 1 (Conservation, Deferred Energy Costs, Self
Insurance, Federal Income Taxes, Periodic Rate Adjustment Mechanism),
Note 8, Note 9, Note 12 (second paragraph) and Note 15 (eighth, ninth and
eleventh paragraphs)
March 31, 1992 Quarterly Report:
Financial Statements, Note (b) (Investment in Bonneville Exchange Contract)
and Note (e) (Other)
Current Reports on Form 8-K for 1992:
January 15, 1992
Item 5. Other Events
April 17, 1992
Item 5. Other Events
June 12, 1992
Item 5. Other Events
EXHIBIT 1.2
__________________________________
PUGET SOUND POWER & LIGHT COMPANY
2,000,000 Shares
Adjustable Rate Cumulative Preferred Stock, Series B
($25 Par Value)
UNDERWRITING AGREEMENT
New York, New York
January 26, 1994
Lehman Brothers Inc.
Merrill Lynch & Co. - Merrill Lynch, Pierce, Fenner & Smith Incorporated
Smith Barney Shearson Inc. as Representatives of the several Underwriters
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
The undersigned, Puget Sound Power & Light Company, a Washington
corporation (the "Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), its Preferred Stock of the
designation and par value, with the terms and in the aggregate number of
shares specified in Schedule I hereto (the "Securities"). The Securities are
more fully described in the Prospectus hereinafter referred to. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Agreement are defined in paragraph (i)
hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have used a
preliminary prospectus supplement (the "Preliminary Prospectus") to the basic
prospectus included in such registration statement, which describes the
Securities and the offering thereof and is used prior to filing of the
Prospectus Supplement (as defined in the next sentence). Promptly upon the
execution of this Agreement, the Company will prepare and file with the
Commission, with your consent, a prospectus supplement relating to the
Securities (the "Prospectus Supplement") pursuant to Rule 424 of the rules
and regulations of the Commission under the Act. Such registration
statement, including the basic prospectus, financial statements, documents
incorporated therein by reference and exhibits, when it became effective, is
hereinafter called the "Registration Statement" and the basic prospectus as
it may have been amended or supplemented prior to the date of this Agreement
(but excluding any prospectus supplement relating to the offering of
securities registered under the Registration Statement other than the
Securities) and as supplemented by the Prospectus Supplement, including all
documents incorporated or deemed to be incorporated therein by reference, is
hereinafter called the "Prospectus".
(b) The Registration Statement, at the time it became
effective, and any post-effective amendment thereof, at the time it becomes
effective, fully complied or will fully comply with the provisions of the Act
and the rules under the Act and did not or will not contain any untrue
statement of a material fact and did not or will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and the Prospectus, at the date of this
Agreement and the Closing Date (as hereinafter defined), and any amendment
thereof or supplement or addition thereto, fully complied or will fully
comply with the provisions of the Act and the rules under the Act and did not
contain or will not contain an untrue statement of a material fact and did
not omit or will not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; the documents
incorporated by reference in the Registration Statement and the Prospectus,
at the time the Registration Statement became effective, and at the date of
this Agreement, complied in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations of the Commission thereunder applicable to such
documents, and any documents deemed to be incorporated by reference in the
Prospectus subsequent thereto up to and including the Closing Date, will,
when they are filed with the Commission, comply in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder applicable to such documents; provided, however, that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof.
(c) The Company has taken all corporate action necessary to be
taken by it to authorize the execution hereof by it and the performance by it
of all obligations on its part to be performed hereunder; and the
consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, or other agreement or instrument to which the Company is now a
party, or the charter of the Company, as amended, or any order, rule or
regulation applicable to the Company of any Federal or state regulatory board
or body or administrative agency having jurisdiction over the Company or over
its property.
(d) Other than approvals that may be required under state
securities laws and the approval of the Washington Utilities and
Transportation Commission, no other approval of any regulatory public body,
state or Federal, is, or will be at the Closing Date, necessary in connection
with the issuance and sale of the Securities pursuant to this Agreement.
(e) Coopers & Lybrand are independent accountants with respect
to the Company as required by the Act and the rules and regulations
thereunder.
(f) The consolidated financial statements filed with or as part
of the Registration Statement present fairly the financial position, results
of operations and changes in financial position of the Company and its
subsidiaries at the respective dates and for the respective periods
indicated, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The Company
has no material contingent obligation which is not disclosed in the
Registration Statement and the Prospectus.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set
forth in the Registration Statement and the Prospectus, there has not been
any material adverse change in the condition (financial or other), earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business.
(h) The Securities conform to the description thereof contained
in the Prospectus and are duly and validly authorized, and, when delivered to
the Underwriters as provided herein, against payment of the consideration set
forth in Schedule I hereto, will be validly issued and outstanding, fully-
paid and non-assessable with no personal liability attaching to the ownership
thereof.
(i) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Closing Date" shall have the meaning set forth in Section 3
hereof. "Rule 415", "Rule 424" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before
the Effective Date of the Registration Statement or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement
or the issue date of any Preliminary Prospectus or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations, warranties and agreements herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in Schedule I hereto, the number of shares
of the Securities set forth opposite such Underwriter's name in Schedule II
hereto, except that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective number of shares of
the Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Securities to
be purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities". The Company agrees to pay to the
Representatives for the respective accounts of the Underwriters, an amount
equal to the product of (i) the Underwriters' Compensation per share
specified in Schedule I hereto and (ii) the numbers of shares specified in
Schedule I hereto.
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially
in the form of Schedule III hereto but with such changes therein as the
Company may authorize or approve. The underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, an
amount equal to the product of (i) the Underwriters' Compensation per share
specified in Schedule I hereto and (ii) the number of shares of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged
by the Underwriters have been approved by the Company but, except as the
Company may otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum number of shares set forth in Schedule I hereto and
the aggregate number of shares of Contract Securities may not exceed the
maximum number of shares set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The number of shares of the Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total number
of shares of Contract Securities as the number of shares of the Securities
set forth opposite the name of such Underwriter bears to the aggregate number
of shares set forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such proportion and
so advise the Company in writing; provided, however, that the total number of
shares of the Securities to be purchased by all Underwriters shall be the
aggregate number of shares set forth in Schedule II hereto less the aggregate
number of shares of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities and payment of the Underwriters' Compensation shall
be made at the office, on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the
order of the Company by certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next day funds or as
otherwise agreed upon between the Company and the Representatives. Payment
of the Underwriters' Compensation shall be made by the Company to the
Representatives for the accounts of the Underwriters by certified or official
bank check or checks drawn on or by a New York Clearing House bank and
payable in next day funds or as otherwise agreed upon between the Company and
the Representatives. Delivery of the Underwriters' Securities shall be made
at such location as the Representatives shall reasonably designate at least
one business day in advance of the Closing Date and payment for the
Securities shall be made at the office specified in Schedule I hereto. The
Underwriters' Securities shall be in definitive form and shall be registered
in such names and in such denominations as the Representatives may request
not less than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 P.M. on the business day prior to the Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Underwriters' Securities for sale to the
public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment to the
Registration Statement or supplement to the Prospectus (other than any
prospectus supplement relating to the offering of securities registered under
the Registration Statement other than the Securities and permitted by
Section 5(h) hereof, or any document required to be filed under the Exchange
Act which upon filing is deemed to be incorporated by reference in the
Registration Statement or the Prospectus) unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (i) when the
Registration Statement, if not effective at Execution Time, and any amendment
thereto, shall become effective, (ii) when the Prospectus Supplement, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (iii) when prior to the termination of the offering of the
Securities any amendment to the Registration Statement relating to the
Securities shall have been filed or become effective, (iv) of any request by
the Commission for any amendment of the Registration Statement or supplement
to the Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or suspension and, if issued or suspended, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company promptly
will prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earning
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and to
counsel for the Underwriters, without charge, a signed copy of the
Registration Statement as originally filed and of each amendment thereto,
including copies of all documents incorporated by reference therein, all
powers of attorney, consents and exhibits filed therewith (other than
exhibits incorporated by reference), and will deliver to the Representatives
conformed copies of the Registration Statement, any Preliminary Prospectus
and the Prospectus, including any documents incorporated by reference therein
at or after the date thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, all amendments of and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request.
(e) The Company will arrange for qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities.
(f) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs
and expenses incident to the performance of its obligations hereunder,
including, without limiting the generality of the foregoing, (i) the
preparation and filing by it of the Registration Statement and the Prospectus
Supplement and the printing and delivery of any Preliminary Prospectus and
this Agreement, (ii) the preparation, issue and delivery of the Securities,
(iii) the printing and distribution of all documents in connection with the
underwriting contemplated herein, (iv) all expenses, including fees and
disbursements of counsel, incurred in connection with qualifying the
Securities under state securities or "blue sky" laws and the preparation of
surveys with respect thereto, (v) all taxes, if any, except transfer taxes,
on the issue of the Securities, and (vi) all rating agency fees.
(g) For a period of five calendar years from the Effective
Date, the Company will furnish (or cause to be furnished) to each of the
Representatives, upon request, copies of (i) all reports to stockholders of
the Company and (ii) all reports and financial statements filed with the
Commission or any national securities exchange.
(h) During the period beginning from the Execution Time and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Securities, as notified to the Company by the
Representatives, or (ii) the fifth day after the Closing Date, the Company
will not offer, sell, contract to sell or otherwise dispose of any of its
Preferred Stock (other than the Securities), except under prior or concurrent
contractual commitments which have been disclosed to the Representatives,
without the prior written consent of the Representatives, which consent shall
not be unreasonably withheld.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, as of the date
of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document incorporated
by reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Washington Utilities and Transportation Commission,
prior to the Closing Date, shall have issued an order or orders permitting
the issuance and sale of the Securities on terms consistent with this
Agreement and such order or orders shall be in full force and effect on the
Closing Date and shall not be subject to any appeal.
(c) At the Closing Date the Representatives shall receive a
favorable opinion of Perkins Coie, counsel for the Company, to the effect
that:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Washington, with adequate corporate powers to own its properties and carry on
the business in which it is now engaged; the Company is duly qualified as a
foreign corporation to own property and transact business in, and is in good
standing in, the State of Montana and has adequate corporate powers to own
and operate its properties in that State; and the Company is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each other jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business;
(ii) the Company holds such franchises, permits and licenses
as are reasonably adequate to enable the Company to carry on its business as
presently conducted, and, as to any franchises, permits and licenses which
the Company does not hold, the absence thereof will not materially adversely
affect the operations, business and properties of the Company as a whole;
(iii) the order or orders of the Washington Utilities and
Transportation Commission referred to in paragraph (b) of this Section 6 are
valid orders in full force and effect on the Closing Date; said orders
authorize the issuance and sale of the Securities on terms consistent with
this Agreement and any Delayed Delivery Contracts, and no other
authorization, consent, or approval of any governmental authority is
necessary for the issuance and sale of the Securities, the performance of the
obligations of the Company under the Securities or the consummation of any of
the other transactions contemplated herein, except such as have been obtained
under the Act and for compliance with the provisions of applicable securities
or "blue sky" laws in connection with the sale of the Securities to the
public;
(iv) the Registration Statement and the Prospectus and each
amendment thereof or supplement thereto as of their respective effective or
issue dates, as the case may be, (except the financial statements and
schedules and other financial or statistical data included therein, as to
which such counsel need express no opinion, and except the documents
incorporated by reference in the Prospectus, as to which such counsel's
opinion is hereinbelow expressed) comply as to form in all material respects
with the requirements of the Act and the applicable instructions, rules and
regulations of the Commission thereunder; any required filing of the
Prospectus and any supplements thereto, pursuant to Rule 424(b), has been
made in the manner and within the time period required by Rule 424(b); the
documents incorporated by reference in the Prospectus (except the financial
statements and schedules and other financial or statistical data included
therein, as to which such counsel need express no opinion), when filed with
the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Registration Statement and any
amendments thereto have become effective under the Act, no stop order has
been issued by the Commission suspending the effectiveness of the
Registration Statement, as amended, and no proceeding has been initiated or
threatened for that purpose; and the Securities conform to the descriptions
thereof and statements in regard thereto contained in the Registration
Statement and the Prospectus;
(v) the statements of law or conclusions of law made in the
Company's most recent annual report to the Commission on Form 10-K, in the
Company's quarterly reports to the Commission on Form 10-Q and current
reports on Form 8-K, if any, incorporated in the Registration Statement and
the Prospectus, which are identified in Schedule IV-A hereto, are correct
statements of law or conclusions of law, and the statements as to matters of
law and legal conclusions under the headings "Description of the Company's
Preferred Stock" and "Certain Terms of the New Preferred Stock" made in the
Prospectus are correct; the descriptions of the terms of all contracts and
other documents described in the Registration Statement and the Prospectus
are accurate, and, to such counsel's knowledge, all contracts and other
documents required to be filed as part of the Registration Statement,
including the Form 10-K, have been filed with, or incorporated by reference
in, the Registration Statement as exhibits; and the Company has not filed any
documents under the Exchange Act which are required to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 which have not
been so incorporated by reference.
(vi) the proceedings, to the extent that the Company is a
party thereto and that such counsel is lead counsel of record therein for the
Company, described in the Form 10-K, in the Company's quarterly reports to
the Commission on Form 10-Q and current reports on Form 8-K, if any,
incorporated in the Registration Statement and in the Prospectus, which are
identified in Schedule IV-B hereto, are all the legal and governmental
proceedings to which the Company is a party and in which such counsel is lead
counsel of record for the Company which are required to be described in the
Prospectus and the descriptions of such proceedings are accurate in all
material respects; and such counsel is not aware of any proceedings required
to be described in the Prospectus which are not described in the Prospectus;
(vii) the execution and delivery of this Agreement, the
issuance and sale of the Securities, the consummation of the transactions
herein and therein contemplated and the fulfillment of and compliance with
the terms hereof and thereof will not (A) result in a breach of any of the
terms, conditions or provisions of, constitute a default under, conflict with
the Restated Articles of Incorporation or Bylaws, both as amended to date, of
the Company or the terms of any indenture, mortgage, deed of trust or other
agreement or instrument, of which such counsel has knowledge, to which the
Company is a party or by which the Company or any of its properties or assets
may be bound or affected or (B) to the best of such counsel's knowledge,
after due inquiry, violate any judgment, order, writ, injunction, decree,
award, demand, law, license, rule or regulation applicable to the Company or
any court, arbitrator, grand jury, or of any governmental agency having
jurisdiction over the Company or any of its properties or assets;
(viii) proper corporate proceedings have been taken so that the
Securities have been duly established and the issuance and sale of the
Securities have been validly authorized, including all necessary action by
shareholders of the Company; upon the issuance and sale of the Securities
pursuant hereto and receipt of payment therefor in accordance herewith, the
Securities will have been validly issued and fully paid and will be
nonassessable; and based upon an examination thereof, the certificates used
to evidence the Securities are in due and proper form; and
(ix) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company.
In giving such opinion, said counsel may rely as to all matters
of the law of the State of Montana and legal conclusions based thereon upon
the opinion of local counsel satisfactory to you and Mudge Rose Guthrie
Alexander & Ferdon and as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
Such counsel shall also state that, although they are not passing
upon or assuming any responsibility for the accuracy, completeness or
fairness of any of the statements made in the Registration Statement or the
Prospectus except as stated in paragraph (c) (v) and (vi) of this Section 6,
they have reviewed the Registration Statement and the Prospectus,
participated in conferences with representatives of the Company, its
accountants, and your representatives and counsel, at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed, and do not know of any reason to believe that, at the Effective
Date, the Registration Statement and at the Execution Time, the Registration
Statement, or any amendment thereto, contained any 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,
at the Execution Time or the Closing Date, the Prospectus, as supplemented,
included any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) At the Closing Date you shall receive the opinion of Mudge
Rose Guthrie Alexander & Ferdon covering the matters in the first clause of
(i); (iii) (other than the law of the State of Montana); (iv); (viii); and
(ix) of paragraph (c) of this Section 6. In giving such opinion, said
counsel may rely as to all matters of law of the State of Washington and
legal conclusions based thereon upon the opinion of counsel for the Company
called for by paragraph (c) of this Section 6 and as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials. Said opinion of Mudge Rose Guthrie Alexander &
Ferdon shall state that, although they are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of any of the
statements made in the Registration Statement or the Prospectus, they have
reviewed the Registration Statement and the Prospectus (other than the
financial statements and schedules and other financial and statistical data
contained therein as to which such counsel need express no opinion),
participated in conferences with representatives of the Company, its
accountants, its counsel and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed and do not know of any reason to believe that, at the Effective
Date, the Registration Statement and at the Execution Time, the Registration
Statement, or any amendment thereto, contained any 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,
at the Execution Time or the Closing Date, the Prospectus, as supplemented,
included any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) You shall have received a letter or letters from Coopers &
Lybrand in form and substance satisfactory to you (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date:
(i) confirming that they are independent public accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder;
(ii) stating that in their opinion the financial statements
and financial statement schedules incorporated by reference in the
Registration Statement and the Prospectus and reported on by them comply in
form in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and regulations;
(iii) stating that on the basis of a reading of the minutes of
meetings of the shareholders and of the Board of Directors of the Company as
set forth in the minute books to a specified date not more than five days
prior to the date of such letter, a reading of the latest available unaudited
interim financial statements, inquiries of certain personnel of the Company
who have responsibility for financial and accounting matters of the Company
and its subsidiaries and their other procedures set forth in such letter
which have been agreed to by you, nothing has come to their attention that
has caused them to believe that
(A) any material modifications should be made to (i) the
unaudited financial statements, if any, included or incorporated in the
Registration Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles or (ii) those unaudited financial
statements do not comply in form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q and
the related published rules and regulations thereunder;
(B) the unaudited amounts in the "Selected Financial
Information", if any, included in the Prospectus do not agree with the
amounts set forth in the unaudited financial statements for the same periods
or were not determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements incorporated by
reference in the Registration Statement and the Prospectus; or
(C) if there are available unaudited interim financial
statements of the Company subsequent to the financial statements included or
incorporated in the Registration Statement and the Prospectus, at the date of
the latest available unaudited interim financial statements (i) there was any
change in the capital stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown on the balance sheet included in
the most recent financial statements included or incorporated in the
Registration Statement and the Prospectus or (ii) there was any decrease
during the twelve month period ended at the date of such latest available
unaudited interim financial statements as compared with the amounts shown for
the twelve month period set forth in the most recent financial statements
included or incorporated in the Registration Statement or Prospectus in
operating revenues, operating income, net income, earnings per common share
or the ratios of earnings to fixed charges and preferred stock dividends,
except, in all instances for changes, decreases or increases which the
Prospectus discloses have occurred or may occur, and except for any
declaration or payment of regular dividends, any issuance of shares of Common
Stock of the Company pursuant to the Company's stock purchase and dividend
reinvestment plan and the Company's employee investment plan and any required
sinking fund payments;
(iv) stating that on the basis of the reading of the minutes
and the inquiries of the personnel of the Company referred to in (iii) above,
nothing has come to their attention that has caused them to believe that, at
a specified date not more than five days prior to the date of such letter,
there was any change in the capital stock or long-term debt of the Company or
any decrease in net assets as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period from the date of
the latest available unaudited interim financial statements through such
specified date, there were any decreases as compared with the corresponding
period in the preceding year in operating revenues, operating income, net
income, earnings per common share or the ratios of earnings to fixed charges
and preferred stock dividends, except, in all instances, for changes,
decreases or increases which the Prospectus discloses have occurred or may
occur, and except for any declaration or payment of regular dividends, any
issuance of shares of Common Stock of the Company pursuant to the Company's
stock purchase and dividend reinvestment plan and the Company's employee
investment plan and any required sinking fund payments;
(v) stating that they have performed certain other specified
procedures with respect to certain amounts and percentages set forth in the
Registration Statement and the Prospectus as theretofore agreed upon by the
Representatives, and have found them to be in agreement with the records or
other specified materials of the Company and the computations to be
arithmetically correct; and
(vi) stating, with respect to the Ratios of Earnings to
Combined Fixed Charges and Preferred Stock Dividends set forth in the
Prospectus under the heading "Selected Financial Information" and Exhibit
(12) to the Registration Statement, that they found the amounts of earnings,
fixed charges and preferred stock dividends to be derived from the
appropriate accounting records of the Company and have checked the arithmetic
accuracy of the computations set forth, and they have read Item 503(d) of
Regulation S-K and the other applicable published rules and regulations
issued by the Commission under the Act and the Exchange Act and, under the
requirements of Item 503(d)(9) of Regulation S-K, the Pro Forma Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends does not
differ by 10 percent or more from the historical ratio after giving effect to
the issuance of the Securities.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Coopers & Lybrand shall have furnished to the Representatives
a letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been (i) any change,
decrease or increase specified in the letter or letters referred to in
paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and its subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signatory of such certificate has carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been
any decrease in the ratings of any of the Company's rated securities by
Moody's Investors Service, Inc. or Standard & Poor's Corporation.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company
in writing or by telephone or telecopy confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or in any amendment
thereof, in any Preliminary Prospectus, or in the Prospectus or in any
amendment thereof or supplement thereto, including any document incorporated
or deemed to be incorporated by reference in any of such documents, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through the Representatives specifically for
use in connection with the preparation thereof, and (ii) such indemnity with
respect to a prospectus included in the Registration Statement or any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Prospectus
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of
a material fact contained in such prospectus or any Preliminary Prospectus
was corrected in the Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page and
under the heading "Underwriting" and, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Prospectus or the Prospectus Supplement, constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnifying party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (plus any local
counsel), approved by the Representatives in the case of paragraph (a) of
this Section 8, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum
of such discount and the purchase price per share of the Securities specified
in Schedule I hereto and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter (except as may
be provided in the Agreement among Underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the Underwriters'
Compensation applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who is not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of the Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (y) and (z) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the number of shares of the Securities set forth opposite their names
in Schedule II hereto bears to the aggregate number of shares of the
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
number of shares of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
number of shares of the Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not agree to purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
10. Termination. This Agreement will continue in effect until
terminated as provided in this Section 10. This Agreement shall be subject
to termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the Underwriters'
Securities, if prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as
to make it, in the judgment of the Representatives, impracticable to market
the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telecopied and confirmed to them, at the address
specified in Schedule I hereto, or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to it at 411-108th Avenue N.E.,
Bellevue, Washington 98004-5515, attention of the Secretary.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts to be made and to be performed within the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the several Underwriters.
Very truly yours,
PUGET SOUND POWER & LIGHT COMPANY
By: Russel E. Olson
---------------------
Name: Russel E. Olson
Title: Vice President and Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
SMITH BARNEY SHEARSON INC.
By: LEHMAN BROTHERS INC.
By: Russell D. Robertson
----------------------------
Name: Russell D. Robertson
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated January 26, 1994
Registration Statement No. 33-45916
Representatives:
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Smith Barney Shearson Inc.
Title, Purchase Price and Description of the Securities:
Title: Adjustable Rate Cumulative Preferred Stock, Series B ($25 Par Value)
Number of shares: 2,000,000
Purchase Price per share: $24.2125; provided, however, that with respect to
Securities sold to certain institutions, as reasonably determined by the
Representatives and specified in a certificate to be delivered to the Company
at least two (2) business days prior to the Closing Date, the Purchase Price
per share shall be $24.50.
Initial Public Offering Price per share: $25.00
Underwriters' Compensation per share: $0
Dividend Rights:
Dividends on the Securities will be payable (i) at the rate of 5.24% per
annum through May 14, 1994, and at the Applicable Rate (as defined in the
Prospectus referred to herein) from time to time in effect for each quarterly
dividend period thereafter; and (ii) quarterly on the 15th day of February,
May, August and November of each year. The first dividend on the Securities,
which will accrue from the date of original issue, will be $.0437 per share,
payable on February 15, 1994. Dividends on the Securities will be cumulative
from the date of original issue.
Redemption Provisions:
The Securities will be redeemable by the Company in whole or in part at
any time on not less than 30 days' notice at a redemption price of $27.50 per
share if the date of redemption is on or prior to February 1, 1999, and at
$25 per share after February 1, 1999, in each case plus accrued dividends to
the date of redemption; provided, however, that the Company will not redeem
any shares of the Securities prior to February 1, 1999, if such redemption is
a part, or in anticipation, of any refunding operation involving the
application, directly or indirectly, of borrowed funds or the proceeds of an
issue of any stock ranking superior to or on a parity with such Securities if
such borrowed funds have an interest rate or cost to the Company, or such
stock has an effective dividend rate or cost to the Company (calculated in
each case in accordance with generally accepted financial practice), of less
than 5.37% per annum.
Sinking Fund Provisions:
The Securities will not be entitled to the benefit of any sinking fund.
Other provisions: None
Closing Date, Time and Payment Office:
February 3, 1994 10:00 A.M. Eastern Standard Time
Mudge Rose Guthrie Alexander & Ferdon
180 Maiden Lane
New York, New York 10038
Delayed Delivery Arrangements: None
Fee:
Minimum number of shares of each contract:
Maximum number of shares of all contracts:
Modification of items to be covered by the letter from Coopers & Lybrand
delivered pursuant to Section 6(e) at the Execution Time:
None
Notices:
Lehman Brothers Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Smith Barney Shearson Inc.
as Representatives of the several Underwriters
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
SCHEDULE II
Number of Shares
of Securities to
Underwriters be Purchased
Lehman Brothers Inc. 666,680
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 666,660
Smith Barney Shearson Inc. 666,660
Total 2,000,000
SCHEDULE III
Delayed Delivery Contract
(Insert name and address
of lead Representative)
Dear Sirs:
The undersigned hereby agrees to purchase from Puget Sound Power &
Light Company (the "Company"), and the Company agrees to sell the
undersigned, on ___________, 1994, (the "Delivery Date"), ________ number of
shares of the Company's ________________ (the "Securities") offered by the
Company's Prospectus dated ________, 1994, receipt of a copy of which is
hereby acknowledged, at a purchase price of $________ per share from
________, 1994, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before 11:00 AM, New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telecopied communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate number of shares of the Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be subject
to the conditions (and neither party shall incur any liability by reason of
the failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject, and (2) the Company,
on or before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such number of shares of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Prospectus
mentioned above. Promptly after completion of such sale to the Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion of counsel
for the Company delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the Securities to be
sold and delivered, shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Securities pursuant to other
contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form
of acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
By
(Signature and Title of Officer)
(Name of Purchaser)
(Address)
Accepted:
Puget Sound Power & Light Company
By
(Authorized Signature)
SCHEDULE IV-A
1992 Annual Report on Form 10-K:
Part I
Item 1. "Business-Regulation and Rates" (first paragraph)
Part II
Financial Statement, Note 2 (first paragraph)
March 31, 1993 Quarterly Report: N/A
June 30, 1993 Quarterly Report: N/A
September 30, 1993 Quarterly Report: N/A
Current Reports on Form 8-K for 1993: N/A
SCHEDULE IV-B
1992 Annual Report on Form 10-K:
Part I
Item 1. "Business-Power Resources" (seventh, fifteenth and
sixteenth paragraphs)
"Environment" (third, fourth and sixth paragraphs)
Part II
Item 7. "Management's Discussion and Analysis of Financial
Condition and Results of Operations
-Operating Revenues" (first paragraph)
-Operating Expenses" (ninth paragraph)
-Rate Matters"
Financial Statements, Note 1 (Energy Conservation, Self
Insurance, Federal Income Taxes, Periodic Rate Adjustment
Mechanism), Note 8, Note 9, Note 12 (second and third
paragraphs), Note 14 (tenth paragraph) and Note 15 (tenth,
eleventh and twelfth paragraphs)
March 31, 1993 Quarterly Report on Form 10-Q:
Part I
Item 1. Financial Statements, Note (b) (Investment in
Bonneville Exchange Power Contract) (first, second and
fourth paragraphs), Note (c) (Unamortized Conservation
Costs) and Note (f) (Other) (first, second and sixth
paragraphs)
June 30, 1993 Quarterly Report on Form 10-Q:
Item 1. Financial Statements, Note (b) (Investment in
Bonneville Exchange Power Contract) (first, second
and fourth paragraphs), Note (c) (Unamortized
Conservation Costs) and Note (g) (Other) (first,
second, third and sixth paragraphs)
September 30, 1993 Quarterly Report on Form 10-Q:
Item 1. Financial Statements, Note (b) (Investment in
Bonneville Exchange Power Contract) (first, second and
fourth paragraphs), Note (c) (Unamortized Conservation
Costs), Note (d) (PRAM Accrued Revenues) and Note (g)
(Other) (first through seventh and tenth paragraphs)
Current Reports on Form 8-K for 1993:
May 4, 1993
Item 5. Other Events
September 22, 1993
Item 5. Other Events
