Exhibit 1.1
A LABAMA G AS C ORPORATION
$45,000,000
5.90% N
OTES DUE J ANUARY 15, 2037
Underwriting
Agreement
January 10, 2007
A.G. Edwards & Sons,
Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
Alabama Gas Corporation, an Alabama
corporation (the “ Company ”), hereby
confirms its agreement with A.G. Edwards & Sons, Inc. (the
“ Underwriter ”) as follows:
1. Purchase and Sale . Upon
the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter
agrees, at the time and place herein specified, to purchase from
the Company $45,000,000 principal amount of the Company’s
5.90% Notes due January 15, 2037 (the “
Securities ”), at the purchase price of 99.125%
of the principal amount of the Securities and having the terms set
forth in the Time of Sale Information (as defined in
Section 2(a)(v) hereof). The Securities will be issued
pursuant to an Indenture dated as of November 1, 1993 (as
amended and supplemented, the “ Indenture
”) between the Company and The Bank of New York Trust
Company, N.A., as successor to NationsBank of Georgia, National
Association (the “ Trustee” ).
2. Representations and Warranties
of Company . The Company represents and warrants to, and
covenants and agrees with, the Underwriter that:
(a) Filing of Registration
Statement and any Preliminary Prospectus with SEC . The Company
meets the requirements for use of Form S-3 under the Securities Act
of 1933, as amended (the “ 1933 Act ”),
and has filed with the Securities and Exchange Commission (the
“ SEC ”) the Registration Statement (as
defined below) and each Preliminary Prospectus (as defined below)
relating to the Securities, if any, required to be filed pursuant
to Rule 424 under the 1933 Act; the Registration Statement has been
declared effective by the SEC under the 1933 Act and complies in
all material respects with Rule 415 under the 1933 Act; and no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued under the 1933 Act and no
proceedings for that purpose or pursuant to Section 8A of the
1933 Act against the Company or relating to the offering of the
Securities have been instituted or threatened by the SEC, and any
request on the part of the SEC for additional information has been
complied with by the Company. For the purposes of this Agreement,
the following terms used herein shall have the following
meanings:
(i) “ Registration
Statement” shall mean the various parts of the
registration statement on Form S-3 (No. 333-121077) filed by the
Company with the SEC pursuant to Rule 415 under the 1933 Act for
the registration of the Company’s debt securities, including
the Securities, under the 1933 Act, any pre-effective amendment
thereto, any post-effective amendment thereto, including the
exhibits thereto, each as amended at the time such part of such
registration statement became effective, and including any
information omitted from such registration statement at the time
such registration statement became effective but that is deemed to
be part of such registration statement pursuant to Rule 430B or
Rule 430C ( “Rule 430 Information” )
under the 1933 Act at the time set forth therein;
(ii) “ Preliminary
Prospectus” shall mean the preliminary prospectus
supplement dated January 9, 2007 to the prospectus dated
December 21, 2004 used in connection with the offering and
sale of the Securities prior to the execution and delivery of this
Agreement that is deemed to be part of and included in the
Registration Statement pursuant to Rule 430B(e) under the 1933
Act;
(iii) “
Prospectus” shall mean the prospectus included
in the Registration Statement at the initial Effective Date, as
such prospectus has been amended or supplemented as of the date
hereof (excluding any preliminary prospectus supplement or any
prospectus supplement that does not relate to the Securities),
including by the prospectus supplement relating to the Securities
as first filed with the SEC pursuant to Rule 424(b) under the 1933
Act in accordance with Section 4(a) of this
Agreement;
(iv) “ Effective
Date” shall mean the date as of which any part of the
Registration Statement is deemed to have become effective under the
1933 Act in accordance with Rule 430B under the 1933
Act;
(v) “Time of Sale
Information” shall mean, as of the Time of Sale, the
Preliminary Prospectus and the final term sheet prepared and filed
pursuant to Section 4(a) hereof; and
(vi) “ Time of
Sale” shall mean 12:50 p.m. New York City time on the
date of this Agreement.
Any reference herein to the
Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the 1933 Act, as of the Effective Date of the Registration
Statement, the date of such Preliminary Prospectus or the date of
such Prospectus, as the case may be, and any reference to any
amendment or supplement to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the Effective Date of the
Registration Statement or the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the “1934 Act”
), and the rules and regulations of the SEC thereunder, and
incorporated by reference in such Registration Statement,
Preliminary Prospectus or Prospectus, as the case may
be.
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(b) Registration Statement;
Prospectus; Time of Sale Information; Incorporated Documents .
(i) The Registration Statement as of the Effective Date, the
Time of Sale Information, at the Time of Sale, and the Prospectus,
at the time it is filed with the SEC pursuant to Rule 424(b) under
the 1933 Act complied and will comply, as the case may be, in all
material respects with the applicable requirements of the 1933 Act,
the Trust Indenture Act of 1939, as amended (the “ 1939
Act ” ), and, in each case, the rules and
regulations of the SEC thereunder; (ii) the Registration
Statement, as of the Effective Date, did not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (iii) the Prospectus, at the time it
is filed with the SEC pursuant to Rule 424(b) under the 1933 Act
and at the Closing Date (as defined herein), will not include any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; (iv) the Time of Sale Information, at the Time of
Sale, did not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and (v) each document
incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, at the time it was or
will be filed with the SEC pursuant to the 1934 Act, complied and
will comply, as the case may be, in all material respects with the
applicable requirements of the 1934 Act and the rules and
regulations of the SEC thereunder and, at such times, did not
contain and will not contain, as the case may be, an untrue
statement of a material fact and did not omit and will not omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however , that, in the case
of clauses (i), (ii), (iii) and (iv) above, the Company
makes no representation or warranty as to (x) information
furnished in writing to the Company by the Underwriter expressly
for use in the Registration Statement, the Prospectus or the Time
of Sale Information, which for purposes of this Agreement shall be
deemed to consist solely of (1) the statements with respect to
the delivery of the Securities in the last paragraph on the cover
page of the Preliminary Prospectus and the Prospectus, and
(2) the statements in the fifth paragraph, the third and
fourth sentences of the seventh paragraph, the eighth paragraph,
and, to the extent it relates to the Underwriter, the ninth
paragraph, in each case, under the caption
“Underwriting” in the Preliminary Prospectus and the
Prospectus (collectively, the “ Underwriter
Information ”) or (y) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee on Form T-1 under the
1939 Act.
(c) Indenture . The Indenture
has been duly qualified under the 1939 Act, has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Indenture by the
Trustee, will constitute a valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors’ rights generally,
(ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) requirements of
reasonableness, good faith and fair dealing (such exceptions,
collectively, the “ Exceptions ”); and
the Indenture will conform to the description thereof contained in
the Time of Sale Information and the Prospectus.
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(d) Securities . The
Securities have been duly authorized and, at the Closing Date, will
have been duly executed by the Company, and, when authenticated in
the manner provided for in the Indenture, issued and delivered
against payment therefor by the Company as described in the Time of
Sale Information and the Prospectus, will constitute valid and
binding obligations of the Company enforceable against the Company
in accordance with their terms, except as may be limited by the
Exceptions, and will be entitled to the benefits of the Indenture;
and the Securities will conform to the description thereof
contained in the Time of Sale Information and the
Prospectus.
(e) Agreement . This
Agreement has been duly authorized, executed and delivered by the
Company.
(f) Due Incorporation . The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Alabama, with corporate power and authority to own its properties
and conduct its business as described in the Time of Sale
Information and the Prospectus and to execute and deliver, and
perform its obligations under, this Agreement, the Indenture and
the Securities; the Company is not required by the nature of its
business to be licensed or qualified as a foreign corporation in
any other state or jurisdiction, except where the failure to be so
qualified would not have a material adverse effect on the
Company.
(g) Material Changes . The
Company has not sustained, since the date of the most recent
financial statements included or incorporated by reference in the
Time of Sale Information and the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth in the Time of Sale Information and the
Prospectus; and, since the respective dates as of which information
is given in the Time of Sale Information, otherwise than as set
forth in the Time of Sale Information, there has not been
(i) any material change in the capital stock, long-term debt
or net assets of the Company, (ii) any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, general affairs, management,
properties, financial position, stockholder’s equity or
results of operations of the Company, or (iii) any material
transaction entered into by the Company.
(h) No Conflicts; Alabama
Commission Order in Full Force and Effect; No Consents Required
. The offering and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture
and this Agreement, and the consummation of the transactions herein
and therein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the
Company’s articles of incorporation or bylaws, each as
amended (the “ Organizational Documents ”), or
any statute, rule, regulation or other law, or any order or
judgment, of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; the Alabama
Public Service Commission has issued its final order (the “
Alabama Commission
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Order ”) authorizing the issue and sale of the
Securities by the Company and such Alabama Commission Order is in
full force and effect and not the subject of any appeal or other
proceeding and is sufficient to authorize the transactions
contemplated by this Agreement; and no other consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body having jurisdiction over the
Company or any of its properties is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture,
except such as have been obtained under the 1933 Act and the 1939
Act, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue
sky laws in connection with the purchase and distribution of the
Securities by the Underwriter.
(i) No Defaults . The Company
is not in violation of the Organizational Documents or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject.
(j) Litigation . Other than
as set forth in or contemplated by the Time of Sale Information and
the Prospectus, there are no legal or governmental proceedings
pending to which the Company is a party or of which any property of
the Company is the subject that could reasonably be expected to be
determined in a manner that, individually or in the aggregate,
would have a material adverse effect on the current or future
financial position, stockholder’s equity or results of
operations of the Company, and, to the best of the Company’s
knowledge, no such proceedings are threatened or
contemplated.
(k) Sarbanes-Oxley . The
Company is to its knowledge, in compliance in all material respects
with the applicable provisions of the Sarbanes-Oxley Act of 2002
that are effective and the rules and regulations of the SEC that
have been adopted and are effective thereunder (collectively, the
“Sarbanes-Oxley Act”).
(l) Accountants . To the
knowledge of the Company, Pricewaterhouse Coopers LLP, (the “
Accountants ”) who have certified certain
financial statements of the Company incorporated by reference in
the Registration Statement, the Time of Sale Information and the
Prospectus, are independent registered public accountants as
required by the 1933 Act.
(m) Time of Sale Information.
No statement of material fact that will be included in the
Prospectus has been omitted from the Time of Sale Information and
no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus will
be omitted therefrom.
(n) Issuer Eligibility . The
Company is not an ineligible issuer as defined under the 1933 Act,
at the times specified in the 1933 Act, in connection with the
offering of the Securities.
(o) Issuer Free Writing
Prospectus . Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and
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representatives, other than the Underwriter in
its capacity as such) has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 under the 1933 Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each
such communication by the Company or its agents and representatives
(other than a communication referred to in clause (i) below),
an “Issuer Free Writing Prospectus” )
other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134
under the 1933 Act or (ii) the documents listed on Schedule I
hereto (which includes the final term sheet contemplated by
Section 4(a) hereof) and other written communications approved
in writing in advance by the Underwriter. Each Issuer Free Writing
Prospectus complied in all material respects with the 1933 Act, has
been filed in accordance with the 1933 Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus,
at the Time of Sale, did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
Company makes no representation and warranty as to Underwriter
Information.
3. Offering; Delivery of
Securities .
(a) Offering . The
Underwriter has advised the Company that it proposes to make a
public offering of the Securities as soon after the effectiveness
of this Agreement as in its judgment is advisable. The Underwriter
has further advised the Company that it will offer the Securities
to the public at the initial public offering price specified in the
Time of Sale Information and the Prospectus plus accrued interest
thereon, if any, from the Closing Date to the date of delivery of
the Securities.
(b) Delivery of Securities .
Delivery of the Securities to the Underwriter, against payment of
the purchase price therefor in immediately available funds by wire
transfer, shall be made prior to 1:00 P.M., New York City time, on
January 16, 2007 in book-entry form through the facilities of
The Depository Trust Company, New York, New York (“
DTC ”), or at such other time and date as may
be agreed upon in writing by the Company and the Underwriter.
Delivery of the documents required by Section 6 hereof with
respect to the Securities shall be made at such time and date at
the offices of Pillsbury Winthrop Shaw Pittman LLP (“
Underwriter’s Counsel ”), New York, New
York, or at such other location as may be agreed upon in writing by
the Company and the Underwriter. For purposes of this Agreement,
“ Closing Date ” shall mean the
hour and date of such delivery and payment.
The Securities shall be issued in
the form of a global certificate registered in the name of
“Cede & Co.,” as nominee of DTC. For the
purpose of expediting the Underwriter’s checking of the
Securities, the Company agrees to make the Securities available to
the Underwriter for such purpose at the offices of DTC (or a
custodian thereof) in New York, New York, not later than 1:00 P.M.,
New York City time, on the business day preceding the Closing Date
or at such other time and place as may be agreed upon by the
Company and the Underwriter.
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4. Covenants of Company . The
Company covenants and agrees with the Underwriter that:
(a) Filing of Prospectus and
Final Term Sheet; Issuer Free Writing Prospectuses . The
Company will (i) promptly transmit copies of the Preliminary
Prospectus and the Prospectus, and any amendments or supplements
thereto, to the SEC for filing pursuant to Rule 424(b) and
Rule 430B or Rule 430C under the 1933 Act, (ii) prepare a
final term sheet, containing solely a description of the
Securities, in a form approved by the Underwriter and file such
final term sheet pursuant to Rule 433(d) under the 1933 Act within
the time required by such Rule, (iii) file all other material
required to be filed by the Company with the SEC pursuant to Rule
433(d) under the 1933 Act, (iv) make no further amendment or
any supplement to the Registration Statement or the Prospectus
after the Time of Sale and prior to the Closing Date for the
Securities which shall be disapproved by the Underwriter after
reasonable notice thereof, and (v) before preparing, using,
authorizing, approving, referring to or filing any Issuer Free
Writing Prospectus, to furnish to the Underwriter and
Underwriter’s Counsel a copy of the proposed Issuer Free
Writing Prospectus for review and not to prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus
disapproved by the Underwriter.
(b) Copies of Registration
Statement, Prospectus and Issuer Free Writing Prospectuses; Notice
of Stop Orders . The Company will deliver to the Underwriter
and to Underwriter’s Counsel (i) one conformed copy of
the Registration Statement as originally filed, including copies of
exhibits thereto (other than any exhibits incorporated by reference
therein), (ii) conformed copies of any amendments to the
Registration Statement, including conformed copies of the documents
incorporated by reference therein (other than exhibits thereto),
and (iii) a conformed copy of each consent and certificate
included or incorporated by reference in, or filed as an exhibit
to, the Registration Statement as so amended; the Company will also
deliver to the Underwriter as soon as practicable after the date of
this Agreement as many copies of the Prospectus and each Issuer
Free Writing Prospectus (to the extent not previously delivered) as
the Underwriter may reasonably request for the purposes
contemplated by the 1933 Act; the Company will promptly advise the
Underwriter of the issuance of any stop order under the 1933 Act
with respect to the Registration Statement (as amended) or the
institution of any proceedings therefor, or the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose or
pursuant to Section 8A of the 1933 Act against the Company or
relating to the offering of the Securities of which the Company
shall have received notice or otherwise have knowledge prior to the
completion of the distribution of the Securities; and the Company
will use its best efforts to prevent the issuance of any such stop
order and, if issued, to secure the prompt removal
thereof.
(c) Filing of Amendments or
Supplements . During the period when a prospectus relating to
any of the Securities is required (but for Rule 172 under the 1933
Act) to be delivered under the 1933 Act by the Underwriter or any
dealer, the Company will not file any amendment or supplement to
the Registration Statement or the Prospectus or any document
incorporated by reference therein or to the Time of Sale
Information or any Issuer Free Writing Prospectus to which the
Underwriter or Underwriter’s Counsel shall reasonably
object.
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(d) Compliance with 1933 Act
. During the period when a prospectus relating to any of the
Securities is required (but for Rule 172 under the 1933 Act) to be
delivered under the 1933 Act by the Underwriter or any dealer, the
Company will comply, at its own expense, with all requirements
imposed by the 1933 Act, as now and hereafter amended, and by the
rules and regulations of the SEC thereunder, as from time to time
in force, so far as necessary to permit the continuance of sales of
or dealing in the Securities during such period in accordance with
the provisions hereof and as contemplated by the Time of Sale
Information and the Prospectus.
(e) Certain Events and Amendments
or Supplements . If, during the period when a prospectus
relating to any of the Securities is required (but for Rule 172
under the 1933 Act) to be delivered under the 1933 Act by the
Underwriter or any dealer, (i) any event relating to or
affecting the Company or of which the Underwriter shall advise the
Company in writing shall occur as a result of which, in the opinion
of the Company or the Underwriter, the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus, each as then
amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (ii) it shall be
necessary to amend or supplement the Registration Statement, the
Prospectus or the Time of Sale Information to comply with the 1933
Act, the 1934 Act or the 1939 Act or the rules and regulations of
the SEC thereunder (including the filing of any document
incorporated by reference in the Prospectus to comply with the 1934
Act), the Company will immediately notify the Underwriter thereof
and forthwith at its expense prepare and furnish to the Underwriter
and to any dealer the Underwriter may designate a reasonable number
of copies of such amendment or supplement that will correct such
statement or omission or effect such compliance.
(f) Blue Sky Qualifications .
During the period when a prospectus relating to any of the
Securities is required (but for Rule 172 under the 1933 Act) to be
delivered under the 1933 Act by the Underwriter or any dealer, the
Company will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter may reasonably designate and will
file and make in each year such statements or reports as are or may
be reasonably required by the laws of such jurisdictions;
provided, however , that the Company shall not be required
to qualify as a foreign corporation, qualify as a dealer in
securities or file a general consent to service of process under
the laws of any jurisdiction.
(g) Earning Statement . In
accordance with Rule 158 under the 1933 Act, the Company will make
generally available to its security holders and to holders of the
Securities, as soon as practicable, an earning statement (which
need not be audited) which will satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 under the 1933
Act.
(h) Exchange Act Documents;
Ratings Notification . During the period when a prospectus
relating to any of the Securities is required (but for Rule 172
under the 1933 Act) to be delivered under the 1933 Act by the
Underwriter or any dealer, the Company will file within the
required time periods all documents required to be filed with the
SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act; and the Company will promptly notify the
Underwriter
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of any written notice
