Draft of December 29, 1997
165,000 SHARES
ROANOKE GAS COMPANY
COMMON STOCK
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UNDERWRITING AGREEMENT
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XXXXX & XXXXXXXXXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
January __, 1998
Ladies and Gentlemen:
Roanoke Gas Company, a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Xxxxx & Xxxxxxxxxxxx, Inc. (the "Underwriter") an aggregate of 165,000 shares
of common stock, $5.00 par value per share, of the Company (the "Common Stock")
and, at the election of the Underwriter, up to an aggregate of 16,500 additional
shares. The aggregate of 165,000 shares to be sold by the Company are herein
called the "Firm Securities," and the aggregate of 16,500 additional shares to
be sold by the Company are herein called the "Optional Securities." The Firm
Securities and the Optional Securities that the Underwriter elects to purchase
pursuant to Section 2 hereof are collectively called the "Securities."
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) A registration statement in respect of the Securities on
Form S-2 (File No. 333-____) under the Securities Act of 1933, as
amended (the "Act"), and as a part thereof a preliminary prospectus, in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission") in the form heretofore delivered
to you, and, excluding exhibits thereto, for each of the other
Underwriter; such registration statement, as amended, has been declared
effective by the Commission; no other document with respect to such
registration statement (other than those documents incorporated into
such registration statement by reference) has heretofore been filed
with the Commission other than in accordance with Section 5(a) of this
Agreement; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424 of the rules and regulations
of the Commission under the Act being hereinafter called a "Preliminary
Prospectus", the various parts of such registration statement,
including (i) all exhibits thereto, and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
of this Agreement and deemed by virtue of Rule 430A under the Act to be
part of the registration statement at the time it was declared
effective and (ii) the documents incorporated by reference in the
registration statement at the time it was declared effective, each as
amended at the time such part became effective, being herein called
collectively the "Registration Statement," and the final prospectus, in
the form first filed pursuant to Rule 424(b), being hereinafter called
the "Prospectus"); any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Form S-2 under the Act;
and the terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that are deemed to be incorporated by
reference in the Prospectus;
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriter expressly for use therein;
(iii) Each document incorporated by reference in the
Prospectus when they were filed, or to be filed, with the Commission,
conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder, and, as
of their filing date, none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iv) The Registration Statement conforms, and the Prospectus
and any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and do not and will not as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by the Underwriter expressly for use therein;
(v) Neither the Company nor any of its direct or indirect
subsidiaries, a complete and correct list of which is attached hereto
as Schedule I (the "Subsidiaries"), has sustained since the date of the
latest audited financial statements included in the Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the outstanding capital stock or long-term debt of the
Company or any of the Subsidiaries or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(vi) The Company and each of its Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all material items of personal property owned by
them, free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by
the Company or any of the Subsidiaries are held by it under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company or such Subsidiaries;
(vii) The Company and each of its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
power and authority (corporate and other) to own or lease their
respective properties and conduct their respective businesses as
described in the Prospectus, and each has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not result
in a material adverse effect on consolidated financial position,
shareholders' equity or results of operations the Company and the
Subsidiaries taken as a whole;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus; all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are fully
paid and nonassessable and conform to the description of the capital
stock of the Company contained in the Prospectus; there are no
preemptive or other similar rights to subscribe for or to purchase any
securities of the Company; except as described in the Prospectus, there
are no warrants, options or other similar rights to purchase any
securities of the Company; neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated by
this Agreement gives rise to any rights for or relating to the
registration of any securities of the Company with respect to such
filing, offering or sale, other than rights which have been waived or
satisfied;
(ix) The Company owns 100% of the issued and outstanding
shares of capital stock of each of the Subsidiaries as described on
Schedule I free and clear of any perfected security interest and any
other security interests, claims, liens or encumbrances and all of such
capital stock has been duly and validly authorized and issued and is
fully paid and non-assessable;
(x) The Securities have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued and fully paid and nonassessable and
will conform to the description of the Securities contained in the
Prospectus as amended or supplemented;
(xi) The issue and sale of the Securities by the Company and
the performance of this Agreement and the consummation by the Company
of the other transactions herein contemplated will not conflict with or
result in a breach or violation of any 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 or
any of the Subsidiaries is a party or by which any of the property or
assets of the Company or any of the Subsidiaries is bound or to which
any of the property or assets of the Company or any of the Subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or bylaws of the Company
(each as amended to date the "Charter" and "Bylaws", respectively) or
the articles of incorporation or bylaws of any of the Subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of the Subsidiaries or any of their properties or activities; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement, except such
consents, approvals, authorizations, registrations or qualifications as
may be required under the Act and under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriter and the clearance of such offering with the National
Association of Securities Dealers, Inc. ("NASD");
(xii) There are no legal or governmental proceedings pending
to which the Company or any of its Subsidiaries is a party or of which
any property of the Company or any of its Subsidiaries is the subject
other than as set forth or contemplated in the Prospectus, which, if
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
financial position, shareholders' equity or results of operations of
the Company or of the Company and the Subsidiaries taken as a whole
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or by others;
(xiii) KPMG Peat Marwick LLP, who have certified certain
financial statements of the Company and the Subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(xiv) All employee benefit plans (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) established, maintained or contributed to by the Company or
any of the Subsidiaries comply in all material respects with the
requirements of ERISA and no employee pension benefit plan (as defined
in Section 3(2) of ERISA) has incurred or assumed an "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or has
incurred or assumed any material liability (other than for the payment
of premiums) to the Pension Benefit Guaranty Corporation;
(xv) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes, as set forth in the
Registration Statement present fairly the consolidated financial
position and the results of operations of the Company and the
Subsidiaries at the indicated dates and for the indicated periods; such
financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied throughout the
periods presented except as noted in the notes thereon, and all
adjustments necessary for a fair presentation of results for such
periods have been made; and the selected financial information included
in the Prospectus presents fairly the information shown therein and has
been compiled on a basis consistent with the financial statements
presented therein;
(xvi) The Company and each of the Subsidiaries have filed all
federal, state and foreign income tax returns which have been required
to be filed (or has received an extension with respect thereto), and
has paid, or made adequate reserves for, all taxes indicated by said
returns and all assessments received by them to the extent that such
taxes have become due and are not being contested in good faith;
(xvii) Neither the Company nor any of the Subsidiaries is in
violation of any international, federal or state law, regulation, or
treaty relating to the storage, handling, transportation, treatment or
disposal of hazardous substances (as defined in 42 U.S.C. Section 9601)
or hazardous materials (as defined by any international, federal or
state law or regulation) or other waste products, which violation is
reasonably likely to result in a material adverse effect on the
financial condition or business operations or properties of the Company
and the Subsidiaries taken as a whole, and the Company and each of the
Subsidiaries have received all material permits, licenses or other
approvals as may be required of them under applicable international,
federal and state environmental laws and regulations to conduct their
business as described in the Prospectus; and the Company and each of
the Subsidiaries are in compliance in all material respects with the
terms and conditions of any such permit, license or approval; neither
the Company nor any of the Subsidiaries has received any notices or
claims that it is a responsible party or a potentially responsible
party in connection with any claim or notice asserted pursuant to 42
U.S.C. Section 9601 et seq. or any state superfund law; and the
disposal by the Company or any Subsidiary of any of the Company's and
each Subsidiary's hazardous substances, hazardous materials and other
waste products has been lawful;
(xviii) No relationship, direct or indirect, exists between
or among the Company or any of the Subsidiaries, on the one hand, and
the directors, officers, shareholders, customers or suppliers of the
Company or any of the Subsidiaries on the other hand, that is required
by the Act or the Exchange Act, or by the rules and regulations under
either of such Acts to be described in the Registration Statement and
the Prospectus or documents incorporated by reference therein that is
not so described;
(xix) Neither the Company nor any of the Subsidiaries has
taken and none of such entities will take, directly or indirectly, any
action that is designed to or that has constituted or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities;
(xx) Each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate licenses,
copyrights, trademarks, service marks and trade names (collectively,
"intellectual property") necessary to carry on its business as
presently operated by it, except where the failure to own or possess or
have the ability to acquire any such intellectual property would not,
individually or in the aggregate, have a material adverse effect on the
Company and the Subsidiaries taken as a whole, and neither the Company
nor any of the Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any intellectual property or of any facts which would
render any intellectual property invalid or inadequate to protect the
interest of the Company or any of the Subsidiaries therein and which
infringement or conflict could have a material adverse effect on the
Company and the Subsidiaries taken as a whole;
(xxi) Except as described in the Prospectus, the Company and
the Subsidiaries maintain insurance of the types and in the amounts
that are reasonable or required for the business operated by them, all
of which insurance is in full force and effect;
(xxii) The Company and each of the Subsidiaries holds and are
operating in compliance, in all material respects, with all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of their respective businesses as presently
being conducted ("licenses") and all licenses are valid and in full
force and effect, and the Company, and each of the Subsidiaries are in
compliance, in all material respects, with all laws, regulations,
orders and decrees applicable to them;
(xxiii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xxiv) The Securities are approved for listing on the Nasdaq
National Market;
(xxv) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
(xxvi) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required; all such contracts to
which the Company or a Subsidiary is a party constitute valid and
binding agreements of the Company;
(xxvii) The Company is not a "holding company" or a
"subsidiary company" of a "public utility company" or of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended (the "Holding Company
Act");
(xxviii) Neither the Company nor any of the Subsidiaries are
involved in any material labor dispute nor, to the knowledge of the
Company, is any such dispute threatened;
(xxix) Each approval, consent, order, authorization,
designation, declaration or filing by or with the State Corporation
Commission of Virginia and the Public Service Commission of West
Virginia necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions
contemplated herein has been obtained or made and is in full force and
effect and final and non-appealable; and no further authorization,
approval, consent or order of any governmental authority or agency is
legally required in connection with the authorization, issuance and
sale of the Securities by the Company pursuant to this Agreement (other
than qualification under the state securities or Blue Sky laws and
clearance of such offering with the NASD);
(xxx) Each of the Company and the Subsidiaries has valid and
sufficient grants, franchises, miscellaneous permits and easements free
from unduly burdensome restrictions, adequate for the conduct of its
business in the territories in which it is now conducting such business
and the ownership of the properties now owned by it; and
(xxxi) The conditions for use of registration statements on
Form S-2 set forth in the General Instructions on Form S-2 have been
satisfied and the Company is entitled to use such form for the
transaction contemplated herein.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at a purchase price per share of $ . , the Firm Securities and (b)
in the event and to the extent that the Underwriter shall exercise the election
to purchase Optional Securities as provided below, the Company agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Company, at the
purchase price set forth in clause (a) of this Section 2, that portion of the
number of Optional Securities as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional securities).
The Company hereby grants to the Underwriter the right to purchase at
its election up to 16,500 Optional Securities at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to
purchase Optional Securities may be exercised no more than once by written
notice from you to the Company, given within a period of 30 days after the date
of this Agreement, setting forth the aggregate amount of Optional Securities to
be purchased and the date on which such Optional Securities are to be delivered,
as determined by you but in no event earlier than the First Delivery Date (as
defined in Section 4 hereof) or, unless you otherwise agree in writing, earlier
than two or later than 10 business days after the date of such notice.
3. Offering by the Underwriter.
Upon the authorization by you of the release of the Firm Securities,
the Underwriter proposes to offer the Firm Securities for sale upon the terms
and conditions set forth in the Prospectus.
4. Delivery and Payment.
Certificates in definitive form for the Securities to be purchased by
the Underwriter hereunder, and in such denominations and registered in such
names as Xxxxx & Xxxxxxxxxxxx, Inc. may request upon at least two business days'
prior notice to the Company, shall be delivered by or on behalf of the Company,
to Xxxxx & Xxxxxxxxxxxx, Inc., for the account of the Underwriter, against
payment by the Underwriter or on its behalf of the purchase price therefor.
Payment of the purchase price for the Securities shall be made by certified or
official bank check in next day funds or, at the option of Xxxxx & Xxxxxxxxxxxx,
Inc., by wire transfer of immediately available funds all at the offices of
Xxxxx & Xxxxxxxxxxxx, Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx. The time
and date of such delivery and payment shall be, with respect to the Firm
Securities, 10:00 a.m., Richmond, Virginia time, on _______________, 1998 or at
such other time and date as you and the Company may agree upon in writing, and,
with respect to the Optional Securities, 10:00 a.m., Richmond, Virginia time, on
the date specified by you in the written notice given by you (consistent with
Section 2 hereof) of the Underwriter's election to purchase such Optional
Securities, or at such other time and date as you and the Company may agree upon
in writing. Such time and date for delivery of the Firm Securities is herein
called the "First Delivery Date," such time and date for delivery of the
Optional Securities, if not the First Delivery Date, is herein called the
"Second Delivery Date," and each such time and date for delivery is herein
called a "Delivery Date." Such certificates will be made available for checking
and packaging at least twenty-four hours prior to each Delivery Date at the
offices of Xxxxx & Xxxxxxxxxxxx, Inc. at the address set forth above or such
other location designated by the Underwriter to the Company.
5. Agreements of the Company.
The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and
to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant
to Rule 424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no amendment or supplement to the Registration
Statement or Prospectus prior to any Delivery Date which shall be reasonably
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
subsequent to the date of the Prospectus and for so long as the delivery of a
Prospectus is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such actions as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Underwriter with copies of the Registration
Statement and the Prospectus in such quantities as you may from time to time
reasonably request during such period following the date hereof that a
prospectus is required to be delivered in connection with offers or sales of
Securities, and, if the delivery of a prospectus is required during this period
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus to comply with the Act, to notify you and upon your request to file
such document and to prepare and furnish without charge to you and to any dealer
in securities as many copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) As soon as practicable after the effective date of the
Registration Statement, to make generally available to its shareholders and to
deliver to you, an earnings statement of the Company, conforming with the
requirements of Section 11(a) of the Act and Rule 158 under the Act, covering a
period of at least 12 months beginning after the effective date of the
Registration Statement;
(e) For a period of 180 days from the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of any securities of the
Company (other than the Securities or pursuant to employee stock option plans or
pursuant to options, warrants or rights outstanding on the date of this
Agreement or pursuant to bona fide gifts to persons who agree in writing with
the donor to be bound by this restriction), without your prior written consent;
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request; and
(g) To apply the net proceeds from the sale of the Securities for the
purposes set forth in the Prospectus.
6. Payment of Expenses.
The Company covenants and agrees with the Underwriter that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriter and dealers; (ii) the cost of reproducing this Agreement, the Blue
Sky Survey and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriter in connection with such qualification and in
connection with the Blue Sky Survey; (iv) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (v) the cost of preparing stock
certificates; (vi) the costs or expenses of any transfer agent or registrar; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that except as provided in Section 8 and
Section 10 hereof, the Underwriter will pay all its own costs and expenses,
including the fees of its counsel, stock transfer taxes on resale of any of the
Securities by it and any advertising expenses connected with any offers they may
make.
7. Conditions to Obligations of Underwriters.
The obligations of the Underwriter hereunder, as to the Securities to
be delivered at each Delivery Date, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Delivery Date, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 5(a) of this Agreement; no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Hunton & Xxxxxxxx, counsel for the Underwriter, shall have
furnished to you such opinion or opinions, dated such Delivery Date, with
respect to the incorporation of the Company, the validity of the Securities
being issued at such Delivery Date, the Registration Statement, the Prospectus,
and other related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxxx, Xxxxxx & Xxxxxxxxxx, P.L.C., counsel for the Company, shall
have furnished to you their written opinion, dated such Delivery Date, in form
reasonably satisfactory to you, to the effect that:
(i) The Company and each of its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
corporate power and authority to own or lease their respective
properties and conduct their respective businesses as described in the
Prospectus;
(ii) The Company and each of its Subsidiaries have been duly
qualified as foreign corporations for the transaction of business and
are in good standing under the laws of every other jurisdiction in
which they own or lease properties, or conduct any business, so as to
require such qualification, except where the failure to so qualify will
not result in a material adverse effect on the Company or the Company
and the Subsidiaries taken as a whole;
(iii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and nonassessable and conform to the description of the
capital stock contained in the Prospectus; there are no preemptive or
other similar rights to subscribe for or to purchase any securities of
the Company; to such counsel's knowledge, except as described in the
Prospectus, there are no warrants or options to purchase any securities
of the Company; to such counsel's knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any securities of the Company with respect to
such filing, offering or sale, other than rights which have been waived
or satisfied; and the form of the certificates evidencing the
Securities comply with all formal requirements of Virginia law;
(iv) All of the issued shares of capital stock of the
Subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable; and except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the Subsidiaries
are directly owned by the Company free and clear of any security
interests, claims, liens or encumbrances;
(v) The Securities have been duly authorized, and the
Securities being issued as of such Delivery Date will be, when issued,
validly issued, fully paid and nonassessable and conform to the
description of the Securities contained in the Prospectus as amended or
supplemented;
(vi) To such counsel's knowledge, there is no legal or
governmental proceeding pending to which the Company or any of the
Subsidiaries is a party or of which any property of the Company or any
of the Subsidiaries is the subject, other than as set forth or
contemplated in the Prospectus, that, if determined adversely, would
individually or in the aggregate have a material adverse effect on the
financial position, shareholders' equity or results of operations of
the Company and the Subsidiaries taken as a whole, and, to such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vii) The issue and sale of the Securities being issued at
such Delivery Date by the Company and the performance of this Agreement
by the Company and the consummation by the Company of the other
transactions herein contemplated will not conflict with or result in a
breach or violation of any 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 or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the Charter or Bylaws of
the Company or the articles of incorporation or the bylaws of any of
the Subsidiaries or of any statute, order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of
their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities by
the Company or the consummation by the Company of the other
transactions contemplated by this Agreement, except such as have been
obtained under the Act and from the Virginia State Corporation
Commission with respect to the issuance of additional shares of capital
stock and such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters and the clearance of such offering with the
National Association of Securities Dealers, Inc.;
(ix) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to
such Delivery Date (other than the financial statements and related
schedules and data, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; such counsel has no
reason to believe that, as of the effective date of the Registration
Statement and as of such Delivery Date, either the Registration
Statement or the Prospectus (other than the financial statements and
related schedules and data) (or, as of its date, any further amendment
or supplement thereto made by the Company prior to such Delivery Date)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and such counsel does not know of any contracts
or other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required;
(x) The documents incorporated by reference in the Prospectus
(other than the financial statements and the related schedules therein,
as to which such counsel need express no opinion), when they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder;
(xi) The descriptions in the Registration Statement and
Prospectus and any further amendments or supplements thereto of
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required to
be shown;
(xii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xiii) The Company and each of the Subsidiaries holds and are
operating in compliance, in all material respects, with all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of their respective businesses as presently
being conducted ("licenses") and all licenses are valid and in full
force and effect, and the Company, and each of the Subsidiaries are in
compliance, in all material respects, with all laws, regulations,
orders and decrees applicable to them;
(xiv) The Company is not a "holding company" or a "subsidiary
company" of a "public utility company" or of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company" as such terms are defined in the Holding Company Act;
(xv) Each approval, consent, order, authorization,
designation, declaration or filing by or with the State Corporation
Commission of Virginia and the Public Service Commission of West
Virginia necessary in connection with the execution and delivery of
this Agreement by the Company and the consummation of the transactions
contemplated herein has been obtained or made, and to the best of such
counsel's knowledge, said order is in full force and effect and final
and non-appealable; and no further authorization, approval, consent or
order of any governmental authority or agency is legally required in
connection with the authorization, issuance and sale of the Securities
by the Company pursuant to this Agreement (other than qualification
under state securities or Blue Sky laws and clearance of such offering
with the NASD); and
(xvi) Each of the Company and the Subsidiaries has valid and
sufficient grants, franchises, miscellaneous permits and easements free
from unduly burdensome restrictions, adequate for the conduct of its
business in the territories in which it is now conducting such business
and the ownership of the properties now owned by it.
Such opinion may be furnished subject to such stated assumptions,
limitations and qualifications as shall be acceptable to Hunton & Xxxxxxxx,
counsel for the Underwriters.
(d) At 10:00 a.m., Richmond, Virginia, time, on the date of this
Agreement and the effective date of the most recently filed post-effective
amendment to the Registration Statement and also at each Delivery Date, KPMG
Peat Marwick shall have furnished to you a letter or letters, dated the
respective date of delivery thereof, in form and substance reasonably
satisfactory to you, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information relating
to the Company and its Subsidiaries contained in the Registration Statement and
the Prospectus;
(e) (i) Neither the Company nor any of the Subsidiaries shall have
sustained, since the date of the latest audited financial statements included in
the Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the outstanding capital stock or long-term debt of the Company or any
of the Subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company or any of the
Subsidiaries otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii) is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Delivery Date on the terms and in the manner
contemplated by the Prospectus;
(f) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading of any of the
securities of the Company on the National Association of Securities Dealers,
Inc. Automated Quotation System; (ii) any United States federal or state
statute, regulation, rule or order of any court, legislative body, agency or
other governmental authority shall have been enacted, published, decreed or
promulgated or any proceeding or investigation shall have been commenced which,
in your reasonable judgment, materially and adversely affects the business or
operations of the Company; (iii) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers, Inc. Automated Quotation System; (iv) a
general moratorium on commercial banking activities in New York or Virginia
declared by either federal or New York or Virginia authorities; (v) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if any such event specified in
this clause (v) would have such a materially adverse effect, in your reasonable
judgment, as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Delivery Date
on the terms and in the manner contemplated in the Prospectus; or (vi) such a
material adverse change in general economic, political, financial or
international conditions affecting financial markets in the United States having
a material adverse impact on trading prices of securities in general, as, in
your reasonable judgment, makes it inadvisable to proceed with the payment for
and delivery of the Securities;
(g) The Company shall have furnished to you copies of agreements
between the Company and the directors and executive officers and certain
stockholders of the Company, in form and content reasonably satisfactory to you,
pursuant to which such persons agree not to offer, sell, or contract to sell, or
otherwise dispose of, any shares of Common Stock beneficially owned by them or
any securities convertible into, or exchangeable for, Common Stock, on or before
the 180th day after the date of this Agreement without your prior written
consent; and
(h) The Company shall have furnished or caused to be furnished to you
at such Delivery Date certificates of officers of the Company reasonably
satisfactory to you as to the accuracy of the respective representations and
warranties of the Company herein at and as of such Delivery Date, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Delivery Date, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as you may reasonably
request.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will promptly reimburse the Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating, preparing to defend or defending, or appearing as a
third-party witness in connection with, any such action or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus, the Registration Statement or Prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
therein; provided, further, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of the Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Securities
to such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
(b) The Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating, preparing
to defend or defending, or appearing as a third-party witness in connection
with, any such action or claim. The Company acknowledges that the statements set
forth in the last paragraph of the cover page, the [last two] paragraphs on the
inside front cover page and the third, fifth and sixth paragraphs under the
heading "Underwriting" in the preliminary prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
Underwriter for inclusion in the preliminary prospectus or the Prospectus, and
you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; 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 been advised by
counsel that representation of such indemnified party and the indemnifying party
may be inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, 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. It is understood that the
indemnifying party shall, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys together with appropriate
local counsel at any time for all indemnified parties unless such firm of
attorneys shall have reasonably concluded that one or more indemnified parties
has actual differing interests with other indemnified 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 such counsel, the indemnifying party will not be liable for any settlement
entered into without its written consent and 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 the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably 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). Notwithstanding the immediately preceding sentence
and the first sentence of this paragraph, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriter on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (after deducting the total underwriting discount, but before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriter on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above in this subsection
(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 8 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. Representations and Indemnities to Survive.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Underwriter, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement or any investigation (or any statement as to
the results thereof) made by or on behalf of the Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company or each of the Selling Shareholders, and shall
survive delivery of and payment for the Securities.
10. Termination and Payment of Expenses.
If for any reason any Securities are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse the Underwriter for
all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriter in making preparations for the purchase,
sale and delivery of the Securities not so delivered, but the Company shall not
then be under further liability to any Underwriter except as provided in Section
6 and Section 8 hereof.
11. Notices.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriter shall be sufficient in all respects if delivered or sent by reliable
courier, first-class mail, telex or facsimile transmission to Xxxxx &
Xxxxxxxxxxxx, Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Finance Department; if to the Company shall be sufficient in all
respects if delivered or sent by reliable courier, first-class mail, telex, or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxx X. Xxxxxxxxxx, III, with a copy (which
shall not constitute notice) to Xxxxx, Xxxxxx & Xxxxxxxxxx, P.L.C. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. Successors.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriter and the Company and, to the extent provided in Sections 8
and 9 hereof, the officers and directors of the Company and each person who
controls the Company or the Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from the Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
13. Time of the Essence.
Time shall be of the essence in this Agreement.
14. Business Day.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. Applicable Law.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Virginia.
16. Captions.
The captions included in this Agreement are included solely for
convenience of reference and shall not be deemed to be a part of this Agreement.
17. Counterparts.
This Agreement may be executed by any one or more of the parties in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
between the Underwriter and the Company.
Very truly yours,
ROANOKE GAS COMPANY
By: ___________________________________
Name: Xxxx X. Xxxxxxxxxx, III
Title:
Accepted as of the date hereof at Richmond, Virginia:
XXXXX & XXXXXXXXXXXX, INC.
By: _______________________________________
Name:
Title:
SCHEDULE I
SUBSIDIARIES OF ROANOKE GAS COMPANY
Name of Subsidiary State of
------------------ Incorporation
-------------
Bluefield Gas Company West Virginia
Commonwealth Public Service Corporation* Virginia
Diversified Energy Company Virginia
---------------
* A wholly owned subsidiary of Bluefield Gas Company.
