EXHIBIT 1(b)
UNDERWRITING AGREEMENT
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NORTHWEST NATURAL GAS COMPANY
Common Stock
Price to the Company: $_____ per Share
__________ __, 1994
To the Underwriters named in Schedule I hereto
Dear Sirs:
Northwest Natural Gas Company, an Oregon corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to you the aggregate number of shares of its Common Stock
set forth opposite your respective names in Schedule I hereto, at the price
to the Company set forth above. In addition, for the sole purpose of
covering over-allotments in connection with the sale of such securities,
the Company proposes to grant to you an option (the "Option") to purchase
from the Company, in the same proportions as set forth in Schedule I
hereto, not more than an additional ________ shares of its Common Stock,
exercisable within the period of 30 days from the date hereof, at the Price
to the Company set forth above. As used herein (except in Sections 2, 4
and 6 hereof where it shall include only the aggregate amount of Common
Stock set forth in Schedule I hereto), the term "Securities" shall be
deemed to include both the aggregate amount of Common Stock set forth in
Schedule I hereto and the aggregate amount of Common Stock to be purchased
by you upon the exercise of the Option.
1. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, each of you that:
(a) A registration statement with respect to the Securities has
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Act, has been filed with the
Commission and has become effective. Copies of the registration statement,
together with all amendments, if any, and of the prospectus contained
therein, in the form in which it became effective, including the documents
incorporated in such prospectus by reference, have heretofore been
delivered to you. The registration statement in the form in which it most
recently became effective, including all exhibits thereto, is referred to
hereinafter as the "Registration Statement". The prospectus, including the
documents incorporated therein by reference, contained in the Registration
Statement is referred to hereinafter as the "Prospectus"; provided, that,
when, on or after the date hereof, the Prospectus shall be supplemented
with respect to the Securities (the "Prospectus Supplement") or shall be
completed pursuant to Rule 430A (the "Completed Prospectus"), in a filing
with the Commission pursuant to Rule 424(b) under the Act, "Prospectus",
for all purposes of this Agreement, except this Section 1, shall mean the
Prospectus as so supplemented or completed;
(b) No stop order with respect to the Registration Statement has
been issued by the Commission under the Act and no proceeding therefor
of which the Company has received notice has been instituted; the
Registration Statement, at the time it became effective, conformed in
all material respects to the requirements of the Act and the Rules and
Regulations; on the date hereof, neither the Registration Statement
nor the Prospectus contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circum-
stances under which they were made, not misleading; and each document
incorporated by reference in the Prospectus and filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") conformed when so
filed in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations thereunder;
(c) Since the respective dates as of which information is given
in the Prospectus, there has not been any material adverse change in
the business, property or financial condition of the Company, and
there has not been any material transaction entered into by the
Company other than transactions in the ordinary course of business and
transactions referred to in, or contemplated by, the Prospectus; and
the Company does not have any material contingent obligation which is
not disclosed in the Prospectus;
(d) The consummation by the Company of the transactions herein
contemplated and the fulfillment of the terms hereof will not result
in a breach of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party or by
which it is bound or to which any of the property of the Company is
subject, or any order, rule or regulation applicable to the Company of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties; no approval, authorization, consent
or order of any public board or body is legally required for the
issuance and sale of the Securities by the Company hereunder, except
such as may be issued by the Public Utility Commission of Oregon and
the Washington Utilities and Transportation Commission or be required
under the Act or state securities laws;
(e) The financial statements, together with related notes,
incorporated by reference in the Prospectus present fairly the
financial position and the results of operations of the Company on the
bases set forth in such statements and related notes at the dates or
for the periods to which they apply; and such statements and related
notes have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods
involved, except as otherwise stated therein;
(f) The Company is a validly organized and existing corporation
in good standing under the laws of the State of Oregon, and is
qualified to do business and is in good standing as a foreign
corporation in the State of Washington, with power (corporate and
other) to own its properties and conduct its business as described in
the Prospectus and each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full
power and authority to own or lease its properties and conduct its
business, and is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the business conducted
by it or the location of the properties owned or leased by it makes
such qualification necessary;
(g) All of the outstanding shares of the capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; when the Securities shall have been delivered
against payment therefor as provided herein, they will have been duly
and validly authorized and issued and fully paid and non-assessable;
and the Securities conform to the description thereof contained in the
Prospectus; and
(h) Other than as set forth in the Prospectus, there are no
legal, governmental or administrative proceedings pending to which the
Company is a party or of which any property of the Company is the
subject, the outcome of which, in the opinion of the Company, would
singly or in the aggregate have a material adverse effect on the
business, property or financial position of the Company; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
2. Purchase and Sale. Subject to the terms and conditions
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herein set forth, the Company agrees to sell to each of you, and each of
you agrees, severally and not jointly, to purchase from the Company, at the
Price to the Company set forth in Schedule I hereto, the Securities in the
amounts set forth opposite your respective names in Schedule I hereto.
In addition, the Company hereby grants to you the Option. The
Option may be exercised, in whole or in part, on one occasion during the
term thereof by written notice from you to the Company. Such notice shall
set forth the number of shares of Common Stock (the "Option Shares") as to
which the Option is being exercised and specify the date of delivery of,
and payment for, such shares, which date shall be neither earlier than the
latter of the Time of Delivery or the second business day after the date of
exercise nor later than the seventh business day after the date of
exercise.
3. Offering. Subject to the terms and conditions herein set
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forth, you will make an offering of the Securities upon the terms and
conditions set forth in the Prospectus.
4. Payment and Delivery. Delivery of the Securities and payment
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therefor, in Federal or other immediately available funds [New York
Clearing House funds] payable to the order of the Company, shall be made at
the office of Reid & Priest, 40 West 57th Street, New York, New York, at
10:00 A.M., New York City time, on the fifth business day after the date
hereof, or at such other place, time and date as shall be agreed upon in
writing by the Company and you. The hour and date of such delivery and
payment are herein called the "Time of Delivery".
The Securities shall be delivered to you for your respective
accounts in fully registered form and in such authorized denominations and
registered in such names as you may reasonably request in writing not later
than 2:00 P.M., New York City time, on the second business day after the
date hereof, or to the extent not so requested, registered in your
respective names in such authorized denominations as the Company shall
determine. The Company agrees to make the Securities available to you for
checking purposes not later than 2:00 P.M., New York City time, on the last
full business day preceding the Time of Delivery, at the office of Bankers
Trust Company, or at such other place, time or date as may be agreed upon
between the Company and you.
Delivery of the Option Shares and payment therefor, in New York
Clearing House funds payable to the order of the Company, shall be made at
the office of Reid & Priest, 40 West 57th Street, New York, New York, at
10:00 A.M., New York City time, on the date specified by you in accordance
with Section 2 hereof, or at such other place, time and date as shall be
agreed upon in writing by the Company and you. The hour and date of such
delivery and payment are herein called the "Option Shares Time of
Delivery".
The Option Shares shall be delivered to you for your respective
accounts in fully registered form and in such authorized denominations and
registered in such names as you may reasonably request in writing not later
than 2:00 P.M., New York City time, on the second business day preceding
the Option Shares Time of Delivery, or to the extent not so requested,
registered in your respective names in such authorized denominations as the
Company shall determine. The Company agrees to make the Option Shares
available to you for checking purposes not later than 2:00 P.M., New York
City time, on the last full business day preceding the Option Shares Time
of Delivery, at the office of Bankers Trust Company, or at such other
place, time or date as may be agreed upon between the Company and you.
If any one or more of you shall default on your obligation or
obligations to purchase and pay for the Securities which you have agreed
herein to purchase and pay for (such of you which shall have so defaulted
being referred to herein as the "Defaulting Underwriter"), the Company
shall immediately give written notice thereof to each of you which shall
not have so defaulted (the "Non-defaulting Underwriters") or, if one or
more of you shall have executed this Agreement as the representative or
representatives of the Underwriters named in Schedule I hereto, to such
representative or representatives, and the Non-defaulting Underwriters
shall have the right, within 24 hours after the receipt of such notice by
the Non-defaulting Underwriters or their representative or representatives,
to determine to purchase or to procure one or more others, members of the
National Association of Securities Dealers, Inc. ("NASD") and satisfactory
to the Company, to purchase, upon the terms herein set forth, the amount of
the Securities which the Defaulting Underwriter so agreed to purchase. If
the Non-defaulting Underwriters shall determine to exercise such right,
they shall give notice to the Company of such determination within 24 hours
after their receipt of notice from the Company of such default, and,
thereupon, the Time of Delivery shall be postponed for such period, not
exceeding three business days, as the Company shall determine, in order
that the required changes in the Registration Statement, the Prospectus and
any other documents or arrangements may be effected. If, in the event of
such a default, the Non-defaulting Underwriters shall fail to give such
notice or, within such 24-hour period, shall give notice to the Company
that the Non-defaulting Underwriters will not exercise such right, this
Agreement may be terminated by the Company, upon notice given to the Non-
defaulting Underwriters (or their representative or representatives),
within a further period of 24 hours. If the Company shall not elect to so
terminate this Agreement, it shall have the right:
(a) to require the Non-defaulting Underwriters to purchase and
pay for the respective amounts of the Securities which they have
severally agreed to purchase hereunder and, in addition, to purchase
and pay for (in proportion to their respective commitments hereunder
except as may be otherwise determined by the Non-defaulting
Underwriters) the amount of the Securities which the Defaulting
Underwriter shall have failed to purchase up to 10% of the respective
amounts of the Securities which the Non-defaulting Underwriters have
otherwise agreed to purchase, and/or
(b) to procure one or more others, members of the NASD, to
purchase, upon the terms herein set forth, the amount of the
Securities which the Defaulting Underwriter agreed to purchase or that
portion thereof which the Non-defaulting Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a) and/or (b)
above, the Company shall give notice thereof to the Non-defaulting
Underwriters (or their representative or representatives) within such
further period of 24 hours, and, thereupon, the Time of Delivery shall be
postponed for such period, not exceeding three business days, as the
Company shall determine, in order that the required changes in the
Registration Statement, the Prospectus and any other documents or
arrangements may be effected.
Any action taken by the Company under this Section 4 shall not
relieve any Defaulting Underwriter from liability in respect of its
obligations under this Agreement. Termination by the Company under this
Section 4 shall be without liability on the part of the Company or any Non-
defaulting Underwriter; provided, however, that such termination shall not
affect the payment obligations set forth in Section 5 hereof.
5. Covenants of the Company. The Company agrees with each of
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you that it will:
(a) Promptly deliver to you a copy of the Registration Statement
and of all amendments thereto (in each case including copies of all
documents (other than exhibits) incorporated therein by reference and
all exhibits filed therewith), either signed or certified by an
officer of the Company, and including a copy of each consent and
opinion included therein or filed as an exhibit thereto, either signed
or certified by an officer of the Company, and as many unsigned copies
of the Registration Statement and such amendments, as you may
reasonably request. The Company also will deliver to you as soon as
practicable after the date of this Agreement and thereafter from time
to time, during such period of time as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies
of the Prospectus, including any amendments or supplements thereto, as
you may reasonably request for the purposes of the Act.
(b) Promptly advise you (i) when any amendment of the
Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment of the Registration
Statement or the Prospectus, and (iii) of the issuance of any stop
order under the Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company shall
have received notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued. The Company will not file any amendment
to the Registration Statement or supplement to the Prospectus unless
the Company has furnished to you a copy for your review prior to
filing.
(c) Pay all expenses and taxes (excluding any transfer taxes) in
connection with (i) the preparation and filing by it of the
Registration Statement and the Prospectus, (ii) the preparation and
delivery of this Agreement, (iii) all corporate and regulatory actions
precedent to the issuance and delivery of the Securities, (iv) the
issuance and delivery of the Securities, (v) except as provided in
Section 5(d) hereof, the printing and delivery to you of reasonable
quantities of the Registration Statement, the Prospectus and any
amendment or supplement, (vi) the fees and expenses of any transfer
agent and registrar, and (vii) the qualification of the Securities for
offering and sale under state securities laws, including the fees, not
to exceed $5,000, and disbursements of your counsel in connection with
such qualification and in connection with blue sky surveys.
(d) During such period of time (not exceeding nine months) after
the effective date of the Registration Statement as you may be
required by law to deliver a prospectus, if either the Company shall
become aware or you shall advise the Company in writing of the
occurrence of any event which should be set forth in a supplement to
or an amendment of the Prospectus in order to make the Prospectus not
misleading in the light of then existing circumstances, the Company
will forthwith, at its expense, prepare and furnish to you a
reasonable number of copies of a supplement or an amendment to the
Prospectus which will supplement or amend the Prospectus so that as so
supplemented or amended it will not contain any 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 then existing
circumstances, not misleading. In case any of you shall be required
to deliver a prospectus after the expiration of nine months from the
date of this Agreement, the Company, upon your request, will furnish
to you, at your expense, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Prospectus
complying with Section 10(a) of the Act.
(e) Make generally available to its security holders, as soon as
practicable, an earning statement (which need not be audited) covering
a period of 12 months beginning on the first day of the Company's
fiscal quarter next succeeding the effective date of the Registration
Statement.
(f) 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
you may designate, and 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 or dealer in securities,
or to file any consents to service of process under the laws of any
jurisdiction, or to meet other requirements deemed by the Company to
be unduly burdensome.
(g) Except for sales of equity securities pursuant to
shareholder and employee plans, during the period beginning on the
date of this Agreement and continuing to and including the 45th day
following the Time of Delivery, not to offer, sell, continue to sell
or otherwise dispose of any other of its securities of the same class
as the Securities without your prior consent.
All fees and disbursements of your counsel (exclusive of fees and
expenses of such counsel which are to be paid by the Company as set forth
in subsection (vi) of Section 5(c) hereof) shall be paid by you; provided,
however, that if this Agreement shall be terminated in accordance with the
provisions of Section 6, 7 or 9 hereof, the Company shall reimburse you for
the amount of such fees and disbursements. The Company shall not be
required to pay any amount for any of your expenses except as provided in
the preceding sentence. The Company shall not in any event be liable to
any of you for damages on account of the loss of anticipated profits.
6. Conditions of Your Obligations to Purchase the Securities.
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Your several obligations to purchase and pay for the Securities shall be
subject to the accuracy in all material respects of the representations and
warranties of the Company set forth in Section 1 hereof as of the date
hereof, to the accuracy of the statements of officers of the Company made
in any certificate given pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder to be performed at
or prior to the Time of Delivery, and to the following additional
conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Time of Delivery; no
order of the Commission directed to the adequacy or accuracy of any
document incorporated by reference therein shall be in effect at such
date; and no proceedings for any such purpose shall be pending before,
or threatened by, the Commission on such date, and you shall have
received a certificate dated the Time of Delivery and signed by an
executive officer of the Company to the effect that no such order is
in effect and that no proceedings for any such purpose are pending
before, or to the knowledge of the Company threatened by, the
Commission; (ii) there shall not have been any change in the capital
stock of the Company nor any material increase in the short-term or
long-term debt of the Company (other than in the ordinary course of
business) from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or supplement thereto);
(iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus (or
any amendment or supplement thereto), any material adverse change in
the business, property, financial condition or results of operations
of the Company and its subsidiaries taken as a whole; and (iv) the
Company and its subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary
course of business), that are material to the Company and its
subsidiaries taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(b) At the Time of Delivery, there shall be in full force and
effect orders of the Public Utility Commission of Oregon and the
Washington Utilities and Transportation Commission authorizing the
issuance and sale of the Securities on the terms and conditions herein
set forth, and containing no provision unacceptable to you by reason
of the fact that it is materially adverse to the Company (it being
understood that no order in effect on the date hereof contains any
such unacceptable provision).
(c) At the Time of Delivery, you shall have received from Bruce
B. Samson, Esq., General Counsel of the Company, Reid & Priest, of
counsel to the Company, and Simpson Thacher & Bartlett (a partnership
which includes professional corporations), your counsel, opinions,
dated the Time of Delivery, in substantially the form and substance
prescribed in Exhibits A, B and C hereto.
(d) At the Time of Delivery, Deloitte & Touche shall have
furnished to you a letter, dated the Time of Delivery, to the effect
that:
(i) They are independent public accountants with respect to
the Company within the meaning of the Act and the applicable
published Rules and Regulations;
(ii) In their opinion, the financial statements examined by
them and incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published
rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting
an examination made in accordance with generally accepted
auditing standards, including a reading of the latest available
interim financial statements of the Company, if any, a reading of
the minute books of the Company since December 31, 1993,
inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A)(1) any material modifications should be made to the
unaudited condensed consolidated financial statements
incorporated by reference in the Registration Statement for
them to be in conformity with generally accepted accounting
principles, or (2) the unaudited condensed consolidated
financial statements incorporated by reference in the
Registration Statement do not comply with the applicable
accounting requirements of the Exchange Act as they apply to
Form 10-Q and the related published rules and regulations;
(B) at the date of the latest available interim
balance sheet of the Company and at a subsequent specified
date not more than five days prior to the Time of Delivery,
there has been any change in the capital stock (except for
(I) shares of the Company's Common Stock issued under the
Company's Dividend Reinvestment Plan, 1985 Stock Option Plan
or Employee Stock Purchase Plan, (II) shares of Common Stock
issued upon the conversion of shares of the Company's
Convertible Preference Stock or Convertible Debentures, and
(III) shares of Preferred Stock purchased or redeemed
pursuant to or in anticipation of sinking and purchase funds
with respect to the Company's Preferred Stock), or any
increase in the long-term debt of the Company, or any
decrease in net assets, in each case as compared with
amounts shown in the balance sheet as of the date of the
latest financial statements incorporated by reference in the
Registration Statement, except in each case for changes,
increases or decreases which the Registration Statement
discloses have occurred or may occur, which were occasioned
by the declaration of dividends or which are described in
such letter; or
(C) for the 12-month period for which the latest
unaudited financial statements are available, there were any
decreases, as compared with the latest 12-month period for
which financial statements are incorporated by reference in
the Prospectus, in operating revenues, net income and
earnings available for common stock, except in each case for
decreases which the Registration Statement discloses have
occurred or may occur, which were occasioned by the
declaration of dividends or which are described in such
letter; and
(iv) They have performed certain other specified procedures
with respect to certain amounts and percent-ages set forth in the
Registration Statement or in the documents incorporated by
reference therein, as have been requested by your counsel and
approved by the Company, and have found them to be in agreement
with the records of the Company and the computations to be
arithmetically correct.
(e) At the Time of Delivery, you shall have received a
certificate, dated the Time of Delivery and signed by an executive
officer of the Company, to the effect that (i) the Company's
representations and warranties set forth in Section 1 hereof are true
and correct at and as of the Time of Delivery with the same effect as
if made at and as of the Time of Delivery; provided, that, (A) if any
post-effective amendment to the Registration Statement shall have been
filed subsequent to the date hereof, the Registration Statement
referred to in Section 1(b) hereof shall be deemed, for the purposes
of such certificate, to include such amendment, (B) if the Prospectus
Supplement or the Completed Prospectus shall have been filed pursuant
to Rule 424 under the Act, the Prospectus referred to in Sections
1(b), (c), (e), (f) and (g) hereof shall be deemed, for the purposes
of such certificate, to be the Prospectus as so supplemented or
completed, and (C) the Company's representations and warranties with
respect to the accuracy and sufficiency of the Prospectus shall not
apply to any statements or omissions in the Prospectus Supplement or
the Completed Prospectus made in reliance upon and in conformity with
the information furnished in writing to the Company, by or on behalf
of you, specifically for use therein, (ii) the Company has performed
all of its obligations hereunder to be performed at or prior to the
Time of Delivery, (iii) if the Company shall have been required to
file the Prospectus Supplement or the Completed Prospectus, as the
case may be, with the Commission pursuant to Rule 424(b) under the
Act, the Company has done so, and (iv) the orders described in Section
6(b) hereof are in full force and effect.
(f) All legal proceedings to be taken in connection with the
issuance and sale of the Securities shall be satisfactory in form and
substance to your counsel.
(g) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined
for purposes of Rule 436(g) under the Act, that (i) it is downgrading
its rating assigned to any debt securities or preferred or preference
stock of the Company, or (ii) it is reviewing its rating assigned to,
or placing on credit watch, any debt securities or preferred or
preference stock of the Company with a view to downgrading, or with
negative implications, or direction not determined.
(h) Subsequent to the date of this Agreement, there shall not
have occurred (i) any material change in or affecting the business,
properties, financial condition or results of operations of the
Company and its subsidiaries taken as a whole not contemplated by the
Prospectus or any amendment or supplement thereto (including the
documents incorporated by reference therein at the date thereof),
which in your opinion, would materially and adversely affect the
market for the Securities, or (ii) any event or development relating
to or involving the Company or any officer or director of the Company
which makes any statement made in the Prospectus (including the
documents incorporated therein by reference at the date thereof)
untrue or which, in the opinion of the Company and its counsel or you
and your counsel, requires the making of any addition to or change in
the Prospectus or any amendment or supplement thereto in order to
state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, adversely affect the market for
the Securities.
(i) The Securities shall be approved for trading, or shall be
capable of being traded, in the over-the-counter market.
In case any of the conditions specified above in this Section 6
shall not have been fulfilled at the Time of Delivery, this Agreement may
be terminated by one or more of you which have agreed to purchase, in the
aggregate, 50% or more of the Securities, upon notice thereof to the
Company. Any such termination shall be without liability of any party to
any other party, except as otherwise provided in Section 5 hereof.
6A. Conditions to Your Obligations to Purchase Option Shares. Your
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several obligations to purchase and pay for the Option Shares shall be
subject to the accuracy in all material respects of the representations and
warranties of the Company set forth in Section 1 hereof as of the date
hereof, to the accuracy of the statements of the officers of the Company
made in any certificate given pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder to be performed at
or prior to the Option Shares Time of Delivery, and to the following
additional conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Option Shares Time of
Delivery; no order of the Commission directed to the adequacy or
accuracy of any document incorporated by reference therein shall be in
effect at such date; and no proceedings for any such purpose shall be
pending before, or threatened by, the Commission on such date, and you
shall have received a certificate dated the Option Shares Time of
Delivery and signed by an executive officer of the Company to the
effect that no such order is in effect and that no proceedings for any
such purpose are pending before, or to the knowledge of the Company
threatened by, the Commission; (ii) there shall not have been any
change in the capital stock of the Company nor any material increase
in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or
supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto) any material
adverse change in the business, property, financial condition or
results of operations of the Company and its subsidiaries taken as a
whole; (iv) the Company and its subsidiaries shall not have any
liabilities or obligations, direct or contingent (whether or not in
the ordinary course of business), that are material to the Company and
its subsidiaries taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(b) At the Option Shares Time of Delivery there shall be in full
force and effect orders of the Public Utility Commission of Oregon and
the Washington Utilities and Transportation Commission authorizing the
issuance and sale of the Securities on the terms and conditions herein
set forth, and containing no provision unacceptable to you by reason
of the fact that it is materially adverse to the Company (it being
understood that no order in effect on the date hereof contains any
such unacceptable provision).
(c) At the Option Shares Time of Delivery, you shall have
received from Bruce B. Samson, Esq., General Counsel of the Company,
Reid & Priest, of counsel to the Company, and Simpson Thacher &
Bartlett (a partnership which includes professional corporations),
your counsel, opinions, dated the Option Shares Time of Delivery, with
respect to the Option Shares in substantially the form and substance
prescribed in Exhibits A, B and C hereto.
(d) At the Option Shares Time of Delivery, Deloitte & Touche
shall have furnished to you a letter, dated the Option Shares Time of
Delivery, to the effect set forth in Section 6(d) hereof.
(e) At the Option Shares Time of Delivery, you shall have
received a certificate, dated the Option Shares Time of Delivery and
signed by an executive officer of the Company, to the effect that (i)
the Company's representations and warranties set forth in Section 1
hereof are true and correct at and as of the Option Shares Time of
Delivery with the same effect as if made at and as of the Option
Shares Time of Delivery; provided, that, (A) if any post-effective
amendment to the Registration Statement shall have been filed
subsequent to the date hereof, the Registration Statement referred to
in Section 1(b) hereof shall be deemed, for the purposes of such
certificate, to include such amendment, (B) if the Prospectus
Supplement or the Completed Prospectus shall have been filed pursuant
to Rule 424 under the Act, the Prospectus referred to in Sections
1(b), (c), (e), (f) and (g) hereof shall be deemed, for the purposes
of such certificate, to be the Prospectus as so supplemented or
completed, and (C) the Company's representations and warranties with
respect to the accuracy and sufficiency of the Prospectus shall not
apply to any statements or omissions in the Prospectus Supplement or
the Completed Prospectus made in reliance upon and in conformity with
the information furnished in writing to the Company, by or on behalf
of you, specifically for use therein, (ii) the Company has performed
all of its obligations hereunder to be performed at or prior to the
Option Shares Time of Delivery, (iii) if the Company shall have been
required to file the Prospectus Supplement or the Completed
Prospectus, as the case may be, with the Commission pursuant to Rule
424(b) under the Act, the Company has done so, and (iv) the orders
described in Section 6A(b) hereof are in full force and effect.
(f) All legal proceedings to be taken in connection with the
issuance and sale of the Securities shall be satisfactory in form and
substance to your counsel.
(g) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined
for purposes of Rule 436(g) under the Act, that (i) it is downgrading
its rating assigned to any debt securities or preferred or preference
stock of the Company, or (ii) it is reviewing, or placing on credit
watch, its rating assigned to any debt securities or preferred or
preference stock of the Company with a view to possible downgrading,
or with negative implications, or direction not determined.
(h) Subsequent to the date of this Agreement, there shall not
have occurred (i) any material adverse change, in or affecting the
business, properties, financial condition or results of operations of
the Company and its subsidiaries taken as a whole not contemplated by
the Prospectus or any amendment or supplement thereto (including the
documents incorporated therein by reference at the date thereof),
which in your opinion, would materially, adversely affect the market
for the Securities, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company which
makes any statement made in the Prospectus or any amendment or
supplement thereto (including the documents incorporated therein by
reference at the date thereof), untrue or which, in the opinion of the
Company and its counsel or you and your counsel, requires the making
of any addition to or change in the Prospectus or any amendment or
supplement thereto in order to state a material fact required by the
Act to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Prospectus,
to reflect such event or development would, in your opinion, adversely
affect the market for the Securities.
(i) The Securities shall be approved for trading, or shall be
capable of being traded, in the over-the-counter market.
In case any of the conditions specified above in this Section 6A
shall not have been fulfilled at the Option Shares Time of Delivery,
this Agreement may be terminated as to the parties' obligations in
respect of the Option Shares by one or more of you which have agreed
to purchase, in the aggregate, 50% or more of the Securities, upon
notice thereof to the Company. Any such termination shall be without
liability of any party to any other party, except as otherwise
provided in Section 5 hereof.
7. Conditions of Company's Obligation. The obligation of the
----------------------------------
Company to deliver the Securities (other than the Option Shares) at the
Time of Delivery and the Option Shares at the Option Shares Time of
Delivery shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Time of Delivery or
the Option Shares Time of Delivery, as the case may be; no order of
the Commission directed to the adequacy or accuracy of any document
incorporated by reference therein shall be in effect at such date; and
no proceedings for any such purpose shall be pending before, or
threatened by, the Commission on such date.
(b) At the Time of Delivery or the Option Shares Time of
Delivery, as the case may be, there shall be in full force and effect
orders of the Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission authorizing the issuance and
sale of the Securities on the terms and conditions herein set forth,
and containing no provisions unacceptable to the Company by reason of
the fact that it is materially adverse to the Company (it being
understood that no order in effect on the date hereof contains any
such unacceptable provision).
In case any of the conditions specified above in this Section 7
shall not have been fulfilled at the Time of Delivery or the Option Shares
Time of Delivery, as the case may be, this Agreement may be terminated by
the Company, upon notice thereof to you. Any such termination shall be
without liability of any party to any other party, except as otherwise
provided in Section 5 hereof.
8. Indemnifications.
----------------
(a) The Company agrees to indemnify and hold harmless each of
you and each person who controls any of you within the meaning of
Section 15 of the Act against any and all losses, claims, damages or
liabilities, joint or several, to which you and they or any of you or
them may become subject under the Act, the Exchange Act or any other
statute or common law, and to reimburse each of you and each such
controlling person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) incurred by you
or them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or Prospectus as amended or supplemented (if any amendments
or supplements thereto shall have been furnished) or 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; provided, however, that the indemnity agreement contained
in this subsection (a) shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or based
upon, any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission was
made in reliance upon written information furnished to the Company by
or on behalf of any of you specifically for use in connection with the
preparation of the Registration Statement, the Prospectus or any
amendment or supplement to either thereof; and provided, further, that
the indemnity agreement contained in this paragraph shall not inure to
the benefit of any of you (or of any of your controlling persons) on
account of any losses, claims, damages, liabilities, expenses or
actions arising from the sale of any of the Securities to any person
if a copy of the Prospectus, as amended or supplemented (if any
amendments or supplements thereto shall have been furnished),
excluding any document incorporated by reference therein, shall not
have been sent or given to such person with or prior to the written
confirmation of the sale involved, unless such failure is the result
of non-compliance by the Company with Section 5(a) hereof. The
indemnity agreement of the Company contained in this Section 8(a) and
the representations and warranties of the Company contained in Section
1 hereof shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any of you or
any such controlling person, and shall survive the delivery of the
Securities. The indemnity agreement of the Company contained in this
Section 8(a) shall be in addition to any liability which the Company
may otherwise have to an indemnified party hereunder.
(b) Each of you, severally, agrees to indemnify and hold
harmless the Company, its directors, each of its officers who shall
have signed the Registration Statement and each person who controls
the Company within the meaning of Section 15 of the Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or any other statute or common law, and to reimburse each
of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any action, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
or Prospectus as amended or supplemented (if any amendments or sup-
plements thereto shall have been furnished) or 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, if
such statement or omission was made in reliance upon written
information furnished to the Company by or on behalf of any of you
specifically for use in connection with the preparation of the
Registration Statement, the Prospectus or any amendment or supplement
to either thereof. Your respective indemnity agreements contained in
this Section 8(b) and the representations and warranties of each of
you which shall have signed this Agreement contained in Section 12
hereof shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such
director, officer or controlling person, and shall survive the
delivery of the Securities. The indemnity agreement of each of you
contained in this Section 8(b) shall be in addition to any liability
which you may otherwise have to an indemnified party hereunder.
(c) Each of the Company and you, severally, agrees that, upon
the receipt of notice of the commencement of any action against it,
any of its directors or officers, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, it will promptly give a
notice of the commencement thereof to the party or parties against
whom indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action shall
not relieve such indemnifying party or parties from any liability
which it or they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of any such
action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense or, if it so elects, to
assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted
by counsel chosen by such indemnifying party or parties. If the
indemnifying party shall elect to assume the defense of such action,
any indemnified party or parties who shall be defendant or defendants
in such action shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel retained by it or them shall be at the
expense of such indemnified party or parties unless (i) the employment
of such counsel has been specifically authorized in writing by the
indemnifying party or parties or (ii) counsel chosen by the
indemnifying party or parties as aforesaid shall not be satisfactory
to the indemnified party or parties or shall for any reason be unable
to act for or continue to act for such indemnified party or parties;
provided, however, that in any case or cases to which the foregoing
clause (ii) shall apply, the indemnifying party or parties shall not,
in connection with any one 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 more than one separate firm of
attorneys for all such indemnified parties, which firm shall be chosen
by the indemnified party or parties and satisfactory to the
indemnifying party or parties. If the indemnifying party shall elect
not to assume the defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the reasonable fees
and expenses of any counsel retained by them.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Sections
8(a) or (b) hereof shall be due in accordance with its terms but for
any reason shall be unavailable or insufficient to hold any
indemnified party thereunder harmless in respect of any losses,
claims, damages or liabilities referred to therein, the Company and
each of you severally shall contribute to the aggregate losses,
claims, damages and liabilities to which the Company and one or more
of you may be subject, as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and each of you on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other
equitable considerations, including, with respect only to any losses,
claims, damages or liabilities referred to in Section 8(a) hereof,
relative benefit. 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 you, on the other, and the parties' relative intent,
knowledge and access to information and opportunity to correct or
prevent such statement or omission. The relative benefits received by
the Company on the one hand and you on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of
the Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
you with respect to the offering of the Securities. Notwithstanding
the foregoing, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Company and you agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were
determined (i) by any method of allocation which does not take account
of the equitable considerations referred to above in this Section
8(d), or (ii) with respect only to any losses, claims, damages or
liabilities referred to in Section 8(a) hereof, by pro rata allocation
(even if you were treated as one entity for such purpose). The amount
paid or payable by a party entitled to contribution as a result of the
losses, claims, damages or liabilities referred to above in this
Section 8(d) shall be deemed to include any legal or other expenses
reasonably incurred by such party in connection with investigating or
defending any such action or claim. For purposes of this Section
8(d), each person, if any, who controls any of you within the meaning
of Section 15 of the Act shall have the same rights to contribution as
you, and each director and officer of the Company who shall have
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Company, subject, in each
case, to the fourth sentence of this Section 8(d).
9. Termination.
-----------
(a) This Agreement shall be subject to termination at any time
prior to the Time of Delivery, or your exercise of the Option may be
rescinded at any time prior to the Option Shares Time of Delivery, in
your absolute discretion, upon notice thereof to the Company, if
prior to the Time of Delivery or the Option Shares Time of Delivery,
as the case may be, (i) trading in securities generally on the New
York Stock Exchange, American Stock Exchange or National Association
of Securities Dealers Automated Quotations System shall have been
suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York or Oregon shall have been
declared by either Federal or state authorities, or (iii) there shall
have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial
markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of
the Securities at the offering price to the public set forth on the
cover page of the Prospectus (or any amendment or supplement thereto)
or to enforce contracts for the resale of the Securities by you. This
Agreement may also be terminated at any time prior to the Time of
Delivery, or your exercise of the Option may be rescinded at any time
prior to the Option Shares Time of Delivery, upon notice thereof to
the Company if, in the judgment of one or more of you which have
agreed to purchase 50% or more of the Securities, the subject matter
of any amendment or supplement to the Registration Statement or the
Prospectus renders it either inadvisable to proceed with the public
offering of the Securities or inadvisable to proceed with the delivery
of the Securities to be purchased hereunder. Any termination of this
Agreement pursuant to this Section 9 shall be without liability of any
party to any other party, except as otherwise provided in Section 5
hereof.
(b) Notwithstanding any termination of this Agreement pursuant
to this Section 9, the provisions of Section 8 hereof shall remain in
effect.
10. Notices. All statements, requests, notices and agreements
-------
hereunder shall be in writing or by telephone if confirmed in writing
within 24 hours, and if to you, shall be sufficient in all respects if
delivered or sent by registered mail either to you at your address given on
the last page hereof or, if this Agreement shall have been executed on your
behalf by a representative as provided in Section 13 hereof, to your
representative at its address given on the last page hereof; and if to the
Company shall be sufficient in all respects if delivered or sent by
registered mail to Northwest Natural Gas Company, One Pacific Square, 220
N.W. Second Avenue, Portland, Oregon 97209, Attention: Treasurer and
Controller; provided, however, that any notice to any of you pursuant to
Section 8(c) hereof shall be delivered or sent by registered mail to such
party at its principal executive offices.
11. Information for Use in Prospectuses. The information
-----------------------------------
specified in Schedule I hereto shall be deemed to have been furnished in
writing to the Company by you specifically for use therein.
12. Representations and Warranties of Representatives of the
--------------------------------------------------------
Underwriters. Each of the undersigned, if any, which has signed this
------------
Agreement as representative of the several Underwriters represents and
warrants to the Company that it has full power and authority (a) to enter
into this Agreement on behalf of each of the Underwriters listed in
Schedule I hereto, and (b) to act on behalf of each of them with respect to
the performance of this Agreement. In all dealings hereunder, the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of all of you made or given either by all of such
undersigned representatives jointly or by any of such undersigned
representatives individually.
13. Miscellaneous.
-------------
(a) This Agreement shall be binding upon, and inure solely to the
benefit of, you, the Company and, to the extent provided in Section 8
hereof, the directors and officers of the Company and each person who
controls the Company or any of you, 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 any of you shall be deemed
a successor or assign by reason merely of such purchase.
(b) This Agreement shall be construed in accordance with the
laws of the State of New York.
(c) This Agreement may be executed by any one or more of the
parties hereto 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.
(d) This Agreement has been prepared upon the assumption that
there will be more than one Underwriter purchasing the Securities.
Consequently, if there should be only one Underwriter named in
Schedule I hereto, this Agreement shall be read in that light.
If the foregoing is in accordance with your understanding, please
sign and return to us the counterparts hereof enclosed, and upon the
acceptance hereof by you, this letter and such acceptance hereof shall
constitute a binding agreement between you and the Company.
Very truly yours,
NORTHWEST NATURAL GAS COMPANY
By:__________________________________
Title:_______________________________
ACCEPTED at New York, New York,
as of the date first above written.
[UNDERWRITERS]
By: [Name of Representative]
By_________________________________________
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule I to this
Underwriting Agreement.
Address:
SCHEDULE I
Amounts of
Securities
Underwriters to be Purchased*
------------ ---------------
Total =================
Information deemed furnished pursuant to Section 11 of the Agreement:
--------------------------------------------------------------------
Information with respect to the price to the public of the Securities
set forth on, and the information set forth in the last paragraph of the
cover page of, and in the ____ paragraph under the caption "Underwriting"
in, the _______________.
-----------------
* Principal amount of debt or number of shares of stock.
EXHIBIT A
[Bruce B. Samson, Esq.]
_____________ __, 1994
[UNDERWRITERS]
Dear Sirs:
With reference to the issuance and sale by Northwest Natural Gas
Company (the "Company") pursuant to the Underwriting Agreement, dated
____________ __, 1994 (the "Agreement"), between the Company and you of
__________ shares of the Company's Common Stock (the "Securities"), please
be advised that, as General Counsel of the Company, I have participated in
the preparation of or reviewed (a) the registration statement relating to
the Securities filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the
"Securities Act") (such registration statement, as it became effective,
being hereinafter called the "Registration Statement" and the prospectus
constituting a part of the Registration Statement, in the form (i)
completed or supplemented, (ii) dated ___________ __, 1994, and (iii) filed
with the Commission pursuant to Rule 424(b) under the Securities Act,
including the documents incorporated therein by reference pursuant to Item
12 of Form S-3 on the date hereof, being hereinafter called the "Pro-
spectus"); (b) the proceedings before the Public Utility Commission of
Oregon and the Washington Utilities and Transportation Commission for
authority to issue and sell the Securities and the order or orders entered
by the Commissions in respect thereto; (c) the Restated Articles of Incor-
poration of the Company, its Bylaws and the actions taken by its Board of
Directors and the Executive Committee thereof authorizing the issuance and
sale of the Securities; and (d) such other matters as I have deemed to be
necessary to enable me to render the opinions herein expressed. I have not
examined the Securities, except a specimen thereof, and have relied upon a
certificate of the transfer agent and the registrar for the Securities as
to the issuance, registration and countersignature thereof.
In my examination of the documents referred to above, I have
assumed the authenticity of all such documents submitted to me as
originals, the genuineness of all signatures, the due authority of the
persons executing such documents and the conformity to the originals of all
documents submitted to me as copies.
Based upon the foregoing, I am of the opinion that:
1. The Company is a validly organized and existing corporation
in good standing under the laws of the State of Oregon, is qualified
to do business and is in good standing in the State of Washington, and
has power (corporate and other) to own its properties and conduct its
business as described in the Prospectus.
2. The Company holds valid and subsisting franchises, licenses,
permits and consents, free from burdensome restrictions and adequate
for the conduct of its business as and to the extent set forth in the
Registration Statement.
3. All of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable.
4. The Securities have been duly and validly authorized and,
when the Securities shall have been delivered against payment therefor
as provided in the Agreement, they will have been duly and validly
issued and will be fully paid and non-assessable.
5. The Securities conform as to legal matters with the
description thereof contained in the Prospectus.
6. The Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best of my
knowledge, no proceedings for a stop order with respect thereto are
pending under Section 8 of the Securities Act, and no order directed
to the adequacy or accuracy of any document incorporated by reference
in the Registration Statement or Prospectus has been issued by the
Commission.
7. The Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission have issued orders authorizing
the issuance and sale by the Company of the Securities; the issuance
and sale of the Securities in accordance with the Agreement are in
conformity with the terms of such orders; and no further approval,
authorization, consent or other order of any public board or body
(other than in connection or in compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally required
for the issuance and sale of the Securities on the terms and
conditions set forth in the Agreement.
8. The Agreement has been duly and validly authorized, executed
and delivered by or on behalf of the Company.
9. There are no legal, governmental or administrative
proceedings pending to which the Company is a party or of which any
property of the Company is the subject, other than as set forth in the
Prospectus and other than proceedings incident to the kind of business
conducted by the Company, the outcome of which would not singly or in
the aggregate have a materially adverse effect on the financial
position, stockholders' equity or results of operations of the
Company; and, to the best of my knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
10. The statements made in the Prospectus as to matters of law
and legal conclusions which, as stated therein, have been set forth
therein on my authority as an expert have been reviewed by me and are
correct; and the descriptions of legal and governmental proceedings
contained in the Prospectus are, to the best of my knowledge, accurate
and fairly present the information required to be shown therein.
11. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust or other
agreement or instrument known to me to which the Company is a party or
by which it is bound or to which any of the property of the Company is
subject, or the Restated Articles of Incorporation or Bylaws of the
Company or any order, rule or regulation of any court or other
governmental body having jurisdiction over the Company or any of its
property.
Based upon my examination of the Registration Statement and the
Prospectus and my familiarity, as General Counsel of the Company, with its
business and affairs, I have no reason to believe either that the
Registration Statement, as of the date that it became effective, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that, in each case, no opinion or belief
is expressed herein with respect to the financial statements or other
financial data of the Company contained in the Registration Statement or
the Prospectus.
I am a member of the bars of the States of Oregon and Washington
and do not hold myself out as an expert on the laws of any other state.
I have read the opinions of even date herewith rendered to you by
Reid & Priest and Simpson Thacher & Bartlett, and I concur in the
conclusions therein expressed, insofar as such conclusions involve
questions of Oregon and Washington law.
Reid & Priest and Simpson Thacher & Bartlett, as to matters
governed by the laws of the State of Oregon or the State of Washington, may
rely upon this opinion as if it were addressed directly to each of them; it
being understood, however, that this opinion may be relied upon by you and
by them only in connection with the issuance and sale of the Securities.
This opinion may not be relied upon by you or by them for any other
purpose, or relied upon by any other person without, in each instance, my
prior written consent.
Very truly yours,
BRUCE B. SAMSON
EXHIBIT B
[Reid & Priest]
___________ __, 1994
[UNDERWRITERS]
Dear Sirs:
With reference to the issuance and sale by Northwest Natural Gas
Company (the "Company") pursuant to the Underwriting Agreement, dated
_________ __, 1994 (the "Agreement"), between the Company and you of
___________ shares of the Company's Common Stock (the "Securities"), please
be advised that, as counsel to the Company, we have participated in the
preparation of or reviewed (a) the registration statement relating to the
Securities filed by the Company with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933 (the "Securities Act")
(such registration statement, as it became effective, being hereinafter
called the "Registration Statement" and the prospectus constituting a part
of the Registration Statement, in the form (i) completed or supplemented,
(ii) dated _____________ __, 1994 and (iii) filed with the Commission
pursuant to Rule 424(b) under the Securities Act, including the documents
incorporated therein by reference pursuant to Item 12 of Form S-3 on the
date hereof, being hereinafter called the "Prospectus"); (b) the
proceedings before the Public Utility Commission of Oregon and the
Washington Utilities and Transportation Commission for authority to issue
and sell the Securities and the order or orders entered by the Commissions
in respect thereto; (c) the Restated Articles of Incorporation of the Com-
pany, its Bylaws and the actions taken by its Board of Directors and the
Executive Committee thereof authorizing the issuance and sale of the
Securities; (d) and such other matters as we have deemed to be necessary to
enable us to render the opinions herein expressed. We have not examined
the Securities, except a specimen thereof, and have relied upon a certifi-
cate of the transfer agent and the registrar for the Securities as to the
issuance, registration and countersignature thereof.
In our examination of the documents referred to above, we have
assumed the authenticity of all such documents submitted to us as
originals, the genuineness of all signatures, the due authority of the
persons executing such documents and the conformity to the originals of all
documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that:
1. The Company is a validly organized and existing corporation
in good standing under the laws of the State of Oregon, and is
qualified to do business and is in good standing in the State of
Washington.
2. All of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and nonassessable.
3. The Securities have been duly and validly authorized and,
when the Securities shall have been delivered against payment therefor
as provided in the Agreement, they will have been duly and validly
issued and will be fully paid and non-assessable.
4. The Securities conform as to legal matters with the
description thereof contained in the Prospectus.
5. The Registration Statement has become, and on the date
hereof is, effective under the Securities Act, and, to the best of our
knowledge, no proceedings for a stop order with respect thereto are
pending under Section 8 of the Securities Act, and no order directed
to the adequacy or accuracy of any document incorporated by reference
in the Registration Statement or Prospectus has been issued by the
Commission.
6. The Registration Statement, as of its effective date, and
the Prospectus, as of the time it was filed with the Commission
pursuant to Rule 424(b), complied as to form in all material respects
with the requirements of the Securities Act, and the rules and
regulations thereunder, and the documents incorporated by reference in
the Prospectus on the date hereof complied as to form in all material
respects with the requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder at the respective times at
which such documents were filed with the Commission, except that, in
each case, we express no opinion with respect to the financial
statements and other financial data contained in the Registration
Statement or the Prospectus.
7. The Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission have issued orders authorizing
the issuance and sale by the Company of the Securities; the issuance
and sale of the Securities in accordance with the Agreement are in
conformity with the terms of such orders; and no further approval,
authorization, consent or other order of any public board or body
(other than in connection or in compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally required
for the issuance and sale of the Securities on the terms and
conditions set forth in the Agreement.
8. The Agreement has been duly and validly authorized, executed
and delivered by or on behalf of the Company.
In passing upon the form of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made therein by the Company and take no responsibility therefor,
except as set forth in paragraph 4 above. In the course of the preparation
by the Company of the Registration Statement, we had conferences with
certain of its officers and employees and with the General Counsel of the
Company. Our examination of the Registration Statement and the Prospectus
and our discussions in the above-mentioned conferences did not disclose to
us any information which gives us reason to believe either that the Reg-
istration Statement, as of the date that it became effective, contained any
untrue statement of a material fact or omitted to state a material fact re-
quired to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that, in each case, no opinion or belief
is expressed herein with respect to the financial statements or other fi-
nancial data contained in the Registration Statement or the Prospectus.
We are members of the New York Bar and do not hold ourselves out
as experts on the laws of the States of Oregon and Washington. As to all
matters of Oregon and Washington law, we have relied, with your consent,
upon an opinion addressed to you of even date herewith of Bruce B. Samson,
Esq., General Counsel of the Company, whom we believe to be qualified to
pass upon such matters.
This opinion may be relied upon by you only in connection with
the issuance and sale of the Securities. This opinion may not be relied
upon by you for any other purpose, or relied upon by any other person,
without, in each instance, our prior written consent.
Very truly yours,
REID & PRIEST
EXHIBIT C
[Letterhead of Simpson Thacher & Bartlett (A Partnership
which Includes Professional Corporations)]
______, 199_
[Representatives]
and the other several
Underwriters named in Schedule I
to the Underwriting Agreement
dated ______, 199_ with
Northwest Natural Gas Company
[Address]
Dear Sirs:
We have acted as your counsel in connection with the purchase by
you of _______ shares of Common Stock, par value $3-1/6 per share (the
"Shares"), of Northwest Natural Gas Company, an Oregon corporation (the
"Company"), pursuant to the underwriting agreement referred to above (the
"Underwriting Agreement").
We have examined the Registration Statement on Form S-3 (File No.
33-______) filed by the Company under the Securities Act of 1933, as
amended (the "Act"), as it became effective under the Act (the
"Registration Statement"); and the Company's prospectus dated ______, 199_,
as supplemented by the prospectus supplement dated _____, 199_ (the
"Prospectus"), filed by the Company pursuant to Rule 424(b) of the rules
and regulations of the Securities and Exchange Commission (the
"Commission") under the Act, which pursuant to Form S-3 incorporates by
reference or is deemed to incorporate by reference the Annual Report on
Form 10-K of the Company for the fiscal year ended December 31, 199_, and
____________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing (except the
certificates representing the Shares, of which we have examined a
specimen), and upon originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, agreements, documents and
other instruments and such certificates or comparable documents or oral
statements of public officials and of officers and representatives of the
Company, and have made such other and further investigations, as we have
deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Oregon.
2. The Shares have been duly authorized by the Company and,
upon payment and delivery in accordance with the Underwriting
Agreement, will be validly issued, fully paid and non-
assessable.
3. The statements made in the Prospectus under the captions
"Description of Common Stock" and ________, insofar as they purport
to constitute summaries of the terms of the Company's Restated
Articles of Incorporation, as amended, constitute accurate summaries
of the terms of such document in all material respects.
4. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
5. The Public Utility Commission of Oregon and the Washington
Utilities and Transportation Commission have issued orders authorizing
the issuance and sale by the Company of the Shares; the issuance
and sale of the Shares in accordance with the Underwriting
Agreement are in conformity with the terms of such orders; and no
other approval or consent of any Federal, Oregon or Washington
governmental body (except for any approval or consent under state
"blue sky" or securities laws, as to which we express no opinion) is
required for the issuance and sale of the Shares to you on the
terms and conditions set forth in the Underwriting Agreement.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Shares, and the legal opinions, dated
the date hereof, rendered to you by Bruce B. Samson, Esq., General Counsel
of the Company, and Reid & Priest, counsel for the Company, are in form
satisfactory to us. Insofar as the opinions expressed herein relate to or
are dependent upon matters governed by the laws of the States of Oregon
and/or Washington, we have relied upon the aforesaid opinion of Bruce B.
Samson, Esq. We express no opinion on matters relating to titles to
property, franchises or the lien of the Company's Mortgage and Deed of
Trust, dated as of July 1, 1946, as supplemented, to Bankers Trust
Company and Stanley Burg (successor Individual Trustee), as Trustees.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraph 3 above. In
the course of the preparation by the Company of the Registration Statement
and the Prospectus (excluding the Exchange Act Documents), we participated
in conferences with certain officers and employees of the Company, with
representatives of Deloitte & Touche and with counsel to the Company. We
did not prepare the Exchange Act Documents or review the Exchange Act
Documents prior to their filing with the Commission. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange
Act Documents, our investigations made in connection with the preparation
of the Registration Statement and the Prospectus (excluding the Exchange
Act Documents) and our participation in the conferences referred to above,
(i) we are of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of ____________, 199__, complied as
to form in all material respects with the requirements of the Act and
the applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents complied as to form when filed in
all material respects with the requirements of the Exchange Act and
the applicable rules and regulations of the Commission thereunder,
except that in each case we express no opinion with respect to
the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus
or the Exchange Act Documents, and (ii) we have no reason to believe that
the Registration Statement [, as of its effective date (including the
Exchange Act Documents on file with the Commission on such effective date),]
[, as of the date of filing of the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 199_ (including such Annual
Report for the fiscal year ended December 31, 199_),] contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that in each case we express no belief with respect to
the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus
or the Exchange Act Documents.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the
State of New York and the federal law of the United States and, to the
extent set forth herein and in reliance solely upon the aforesaid opinion
of Bruce B. Samson, Esq., the laws of the States of Oregon and Washington.
This opinion is rendered to you in connection with the above
described transactions. This opinion may not be relied upon by you for any
other purpose, or relied upon by, or furnished to, any other person, firm
or corporation without our prior written consent.
Very truly yours,