form_s-3.htm
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AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 21,
2007.
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REGISTRATION
NO. 333-________
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
______________________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________________
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AGL
RESOURCES INC.
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AGL
CAPITAL CORPORATION
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AGL
CAPITAL TRUST II
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(Exact
name of registrant as specified in its charter)
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Georgia
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Nevada
(State
of Incorporation)
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Delaware
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58−2210952
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88−0472393
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(I.R.S.
Employer Identification Number)
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Ten
Peachtree Place, N.E.,
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2325−B
Renaissance Drive,
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c/o
AGL Resources Inc.
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Atlanta,
Georgia 30309
(404)
584−4000
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Las
Vegas, Nevada 89119
(702)
967−2442
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Ten
Peachtree Place, N.E.,
Atlanta,
Georgia 30309
(404)
584−4000
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(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
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Andrew
W. Evans
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Paul
R. Shlanta
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c/o
Paul R. Shlanta
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Executive
Vice President and
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President
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President
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Chief
Financial Officer
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AGL
Capital Corporation
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AGL
Capital Corporation
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AGL
Resources Inc.
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Ten
Peachtree Place, N.E.
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Ten
Peachtree Place, N.E.
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Ten
Peachtree Place, N.E.
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Atlanta,
Georgia 30309
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Atlanta,
Georgia 30309
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Atlanta,
Georgia 30309
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(404)
584−4000
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(404)
584−4000
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(404)
584−4000
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(Name,
address, including zip code, and telephone number, including area
code, of
agent for service)
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Copy
to:
W.
Benjamin Barkley, Esq.
Kilpatrick
Stockton LLP
1100
Peachtree Street, N.E., Suite 2800
Atlanta,
Georgia 30309
(404)
815−6500
Approximate
date of
commencement of proposed sale of the securities to the public: From
time to time after this registration statement becomes effective.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this
form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this
form is a post−effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If
this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction
I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following
box. o
CALCULATION
OF REGISTRATION FEE
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Title
of each class of securities to be registered (1)
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Amount
to be registered (2)
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Proposed
maximum offering price per unit
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Proposed
maximum aggregate offering
price
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Amount
of Registration
Fee
(2)
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Debt
Securities (3)
Guarantee
of Debt Securities (4)
Trust
Preferred Securities
Junior
Subordinated Debentures (3)
Guarantee
with respect to the Trust PreferredSecurities (4)
Guarantee
with respect to the Junior SubordinatedDebentures (4)
Indenture
(4)
Amended
and Restated Trust Agreement (4)
Common
Stock, $5.00 par value per Share (3)
Preferred
Stock (3)
Purchase
Contracts (5)
Guarantee
of Purchase Contracts (4)
Warrants
(6)
Guarantee
of Warrants (4)
Units
(7)
Guarantee
of Units (4)
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TOTAL
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(1)
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Any
securities registered on this registration statement may be sold
separately or as units with other securities registered on this
registration statement.
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(2)
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An
indeterminate aggregate initial offering price and number or amount
of the
securities of each identified class is being registered as may from
time
to time be sold at indeterminate prices. In accordance with
Rules 456(b) and 457(r), the registrants are deferring payment of
the
registration fee, except for $99,162 in registration fees that have
been
paid with respect to $1,500,000,000 aggregate initial offering price
of
securities that were previously registered pursuant to Registration
Statement Nos. 333-119921 and 333-119921-01 and 333-119921-02 filed
on
November 5, 2004, and were not sold
thereunder.
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(3)
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Also
includes such indeterminate number of Debt Securities, Junior Subordinated
Debentures and shares of Common Stock and Preferred Stock as may
be issued
upon conversion of or in exchange for any Debt Securities, Junior
Subordinated Debentures or Preferred Stock that provide for conversion
or
exchange into other securities. No separate consideration will
be received for the Debt Securities, Junior Subordinated Debentures
or
shares of Preferred Stock or Common Stock issuable upon conversion
of or
in exchange for Debt Securities, Junior Subordinated Debentures or
Preferred Stock.
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(4)
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No
separate consideration will be received for the Guarantee with respect
to
the Debt Securities, the Guarantee with respect to the Trust Preferred
Securities, the Guarantee with respect to the Junior Subordinated
Debentures, the Indenture, the Amended and Restated Trust Agreement,
the
Guarantee with respect to the Purchase Contracts, the Guarantee with
respect to the Warrants or the Guarantee with respect to the Units,
and,
pursuant to Rule 457(n) under the Securities Act, no registration
fee is
required with respect to these
guarantees.
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(5)
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There
are being registered hereby such indeterminate number of Purchase
Contracts as may be issued at indeterminate prices. Such Purchase
Contracts may be issued together with any of the other securities
being
registered hereby. Purchase Contracts may require the holder
thereof to purchase or sell any of the other securities registered
hereby
or to purchase or sell securities of an entity unaffiliated with
the
registrant, a basket of such securities, an index or indices of such
securities or any combination of the
above.
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(6)
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There
are being registered hereby such indeterminate number of Warrants
as may
be issued at indeterminate prices. Such Warrants may be issued together
with any of the securities registered hereby or separately. Warrants
may
be exercised to purchase any of the other securities registered hereby
or
to purchase or sell securities of an entity unaffiliated with the
registrant, a basket of such securities, an index or indices of such
securities or any combination of the
above.
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(7)
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There
are being registered hereby such indeterminate number of Units as
may be
issued at indeterminate prices. Units may consist of any combination
of
the securities being registered
hereby.
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P
R O S P
E C T U S
AGL
Resources Inc.
AGL
Capital Corporation
AGL
Capital Trust II
Debt
Securities
Guarantee
of Debt Securities
Trust
Preferred Securities
Guarantee
with respect to the Trust Preferred Securities
Junior
Subordinated Debentures
Guarantee
with respect to the Junior Subordinated Debentures
Common
Stock
Preferred
Stock
Purchase
Contracts
Guarantee
of Purchase Contracts
Warrants
Guarantee
of Warrants
Units
Guarantee
of Units
We
will
provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the applicable prospectus
supplement carefully before you invest. This prospectus may not be
used to sell securities unless accompanied by a prospectus
supplement. The securities offered in this prospectus and the
applicable prospectus supplement may be offered at a fixed public offering
price
or at varying prices determined at the time of sale.
Our
common stock trades on the New York Stock Exchange under the symbol
“ATG.” There is no established public trading market for any of the
other securities offered in this prospectus.
Investing
in our securities involves risks. You should carefully consider the
information referred to under the heading “Risk Factors” beginning on page
5.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The
date of this Prospectus is August 21, 2007.
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This
prospectus is part of a
registration statement that we filed with the Securities and Exchange Commission
(“SEC”) using the “shelf” registration process. Under this shelf
registration process, we may offer and sell from time to time any combination
of
the securities described in this prospectus in one or more offerings up to
an
indeterminate total dollar amount.
This
prospectus provides you with a
general description of us and some of the securities we may
offer. Each time we offer and sell securities, we will provide a
prospectus supplement that will contain specific information about the terms
of
that offering. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read this
prospectus and the applicable prospectus supplement together with the additional
information incorporated into this prospectus or described under the headings
“Where You Can Find More Information” and “Incorporation of Certain Information
by Reference.”
You
should rely only on the
information contained or incorporated by reference in this prospectus and any
supplement. We have not authorized any other person to provide you
with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We will not make
an offer to sell our securities in any jurisdiction where the offer or sale
is
not permitted. You should not assume that the information contained
in this prospectus and any accompanying prospectus supplement or information
incorporated by reference herein or therein is accurate as of any date other
than the dates indicated in those documents. Our business, financial
condition, results of operations and prospects may have changed since that
date.
In
this prospectus, we refer to
debt securities, guarantees of debt securities, trust preferred securities
and
related guarantees, junior subordinated debentures and related guarantees,
common stock, preferred stock, purchase contracts and related guarantees,
warrants and related guarantees, and units and related guarantees collectively
as “securities.” AGL Resources Inc. may be referred to herein as “AGL
Resources” and AGL Capital Corporation may be referred to as “AGL Capital.” AGL
Capital Trust II is referred to as the “trust.” The terms “we,” “us”
and “our” refer to the consolidated operations of AGL Resources, including AGL
Capital and the trust, unless otherwise indicated.
We
may sell securities to
underwriters who will sell the securities to the public on terms fixed at the
time of sale. In addition, the securities may be sold by us directly
or through dealers or agents designated from time to time, who may be affiliates
of ours. If we, directly or through agents, solicit offers to
purchase the securities, we reserve the sole right to accept and, together
with
our agents, to reject, in whole or in part, any such offer.
For
the securities being sold, the
prospectus supplement will also include the names of the underwriters, dealers
or agents, if any, their compensation, the terms of the offering, and the net
proceeds to us and the trust, as applicable.
Any
underwriters, dealers or agents
participating in the offering may be deemed “underwriters” within the meaning of
the Securities Act of 1933, as amended (the “Securities Act”).
Additionally,
shares of common
stock may be offered and sold from time to time by a selling shareholder named
in a prospectus supplement who has acquired, or will acquire, our common stock
in transactions that were not, or will not be, registered under the Securities
Act, as described under “Plan of Distribution.” Specific information with
respect to any offer and sale by any selling shareholder will be set forth
in
the prospectus supplement relating to that transaction.
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy this information at the SEC’s public
reference room at:
Public
Reference Room
100
F
Street, N.E.
Washington,
DC 20549
You
may
call the SEC at 1-800-SEC-0330 for further information on the public reference
room. Our SEC filings are also available to the public from
commercial document retrieval services and at the Internet world wide website
that the SEC maintains at http://www.sec.gov. In addition, materials
and information concerning us can be inspected at the New York Stock Exchange,
20 Broad Street, 7th Floor, New York, New York 10005, where our common stock
is
listed.
This
prospectus is part of a registration statement that we filed with the
SEC. The full registration statement may be obtained from the SEC or
us, as indicated below. Documents and forms of documents establishing
the terms of the offered securities are filed as exhibits to the registration
statement. Statements in this prospectus about these documents are summaries.
You should refer to the actual documents for a more complete description of
the
relevant matters.
The
SEC’s
rules allow us to “incorporate by reference” information we file with the SEC
into this prospectus. This means that we can disclose important
information to you by referring you to another document. Any
information referred to in this way is considered part of this prospectus from
the date we file that document. Any reports filed by us with the SEC
after the date of this prospectus will automatically update and, where
applicable, supersede any information contained in this prospectus or
incorporated by reference into this prospectus.
We
incorporate by reference into this prospectus the following documents or
information filed with the SEC (other than, in each case, documents or
information deemed to have been furnished and not filed in accordance with
SEC
rules):
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Annual
Report on Form 10−K for the fiscal year ended December 31, 2006 filed on
February 7, 2007 (SEC File No.
001−14174);
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Quarterly
Report on Form 10−Q for the quarter ended March 31, 2007 filed on May 2,
2007 (SEC File No. 001−14174);
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Quarterly
Report on Form 10−Q for the quarter ended June 30, 2007 filed on August 2,
2007 (SEC File No. 001−14174);
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Current
Reports on Form 8−K filed on February 5, March 29, May 4,
May 8, June 19, and August 8, 2007 (SEC File No. 001−14174);
and
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Description
of Common Stock contained in Registration Statement on Form 8−A (Item 1)
filed on March 6, 1996 (SEC File No.
001−11659).
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We
also
incorporate by reference all documents that we may file with the SEC pursuant
to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or
the
Exchange Act, after the date of this prospectus and prior to the termination
of
the offering.
You
can
obtain any of the documents incorporated by reference in this prospectus from
us, or from the SEC through the SEC’s Internet website at the address described
above. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents, unless the exhibit
is
also specifically incorporated by reference in this prospectus. You
can obtain documents incorporated by reference in this prospectus by requesting
them in writing or by telephone from us at the following address:
AGL
Resources Inc.
Ten
Peachtree Place, N.E., Location 1071
Atlanta,
Georgia 30309
Investor
Relations
Telephone: (404)
584−3801
This
prospectus and accompanying prospectus supplement and the documents incorporated
by reference herein contain “forward-looking statements” within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act
that involve risks and uncertainties. These statements, which may
relate to such matters as future earnings, growth, supply and demand, costs,
subsidiary performance, new technologies and strategic initiatives, are
“forward-looking statements” within the meaning of the federal securities
laws. Forward-looking statements involve matters that are not
historical facts, and because these statements involve anticipated events or
conditions, forward-looking statements often include words such as “anticipate,”
“assume,” “believe,” “can,” “could,” “estimate,” “expect,” “forecast,” “future,”
“indicate,” “intend,” “may,” “outlook,” “plan,” “predict,” “project,” “seek,”
“should,” “target,” “will,” “would” or similar expressions. Our
expectations are not guarantees and are based on currently available
competitive, financial and economic data along with our operating
plans. While we believe that our expectations are reasonable in view
of currently available information, our expectations are subject to future
events, risks and uncertainties, and there are several factors – many beyond our
control – that could cause results to differ significantly from our
expectations. Such events, risks and uncertainties include, but are
not limited to:
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changes
in price, supply and demand for natural gas and related
products;
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the
impact of changes in state and federal legislation and
regulation;
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actions
taken by government agencies on rates and other
matters;
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concentration
of credit risk;
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utility
and energy industry consolidation;
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the
impact of acquisitions and
divestitures;
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direct
or indirect effects on our business, financial condition or liquidity
resulting from a change in our credit ratings or the credit ratings
of our
counterparties or competitors;
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interest
rate fluctuations;
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financial
market conditions and general economic
conditions;
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uncertainties
about environmental issues and the related impact of such
issues;
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the
impact of changes in weather upon the temperature-sensitive portions
of
our business;
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the
impact of natural disasters such as hurricanes on the supply and
price of
natural gas;
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acts
of war or terrorism; and
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other
factors that are described in AGL Resources’ documents on file with the
SEC.
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Any
forward-looking statements should be considered in light of such important
factors. You should not place undue reliance on any forward-looking
statement, which speaks only as of the date on which such statement is
made. We do not undertake any obligation to update any such statement
to reflect subsequent circumstances or events except as required by
law.
AGL
Resources is an energy services holding company, headquartered in Atlanta,
Georgia, whose principal business is the distribution of natural gas in six
states: Florida, Georgia, Maryland, New Jersey, Tennessee and
Virginia. AGL Resources operates six utilities which, combined, serve
more than 2.2 million end-use customers, making it the largest distributor
of
natural gas in the southeastern and mid-Atlantic regions of the United States
based on customer count. AGL Resources is also involved in various
related businesses, including retail natural gas marketing to end-use customers
primarily in Georgia; natural gas asset management and related logistics
activities for its own utilities as well as for other nonaffiliated companies;
natural gas storage arbitrage and related activities; operation of
high-deliverability underground natural gas storage assets; and construction
and
operation of telecommunications conduit and fiber infrastructure within selected
metropolitan areas.
The
principal executive office of AGL Resources is located at Ten Peachtree Place
NE, Atlanta, Georgia 30309, and its telephone number is (404)
584−4000.
AGL
Capital Corporation is a wholly-owned subsidiary of AGL
Resources. AGL Capital was established to provide for the ongoing
financing needs of AGL Resources through a commercial paper program, the
issuance of various debt and hybrid securities and other financing
arrangements. The principal address of AGL Capital is 2325−B
Renaissance Drive, Las Vegas, Nevada 89119, and its telephone number is (702)
967−2442.
The
trust
is a statutory trust formed under Delaware law pursuant to a trust agreement,
signed by AGL Capital, as depositor of the trust, the property trustee, the
Delaware trustee and the administrative trustees, each as defined below, and
the
filing of a certificate of trust with the Delaware Secretary of
State. The trust agreement of the trust will be amended and restated
in its entirety before the issuance of trust preferred securities by the trust.
We will refer in this prospectus to the trust agreement, as so amended and
restated, as the “trust agreement.” The trust agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”).
The
trust exists for the exclusive
purposes of:
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issuing
trust preferred securities and common securities representing undivided
beneficial interests in the assets of such
trust;
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investing
the gross proceeds of the sale of trust preferred securities and
common
securities, collectively referred to in this prospectus as the “trust
preferred securities,” in junior subordinated debt securities;
and
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engaging
only in those activities necessary or incidental
thereto.
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AGL Resources will directly or indirectly own all of the common securities
of
the trust. The common securities of the trust rank equally with the
trust preferred securities of the trust. The trust will make payment
on its trust preferred securities pro rata, except that upon an event of default
under the trust agreement, the rights of the holders of the common securities
to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the trust
preferred securities. AGL Capital will acquire common securities of
the trust in an aggregate liquidation amount equal to at least three percent
of
the total capital of the trust.
The
trust’s business and affairs will be conducted by its trustees, each of whom
will be appointed by AGL Capital as holder of the common
securities. The trustees will be The Bank of New York Trust Company,
N.A., as the “property trustee,” The Bank of New York (Delaware), as the
“Delaware trustee,” and two individual trustees, who are referred to as the
“administrative trustees” and who are employees or officers of or affiliated
with AGL Capital. The Bank of New York Trust Company, N.A., as property trustee,
will act as sole trustee under the trust agreement for purposes of compliance
with the Trust Indenture Act. The Bank of New York Trust Company,
N.A. will also act as indenture trustee under an indenture among AGL Capital,
AGL Resources and The Bank of New York Trust Company, N.A. relating to the
junior subordinated debentures. See “Description of Junior
Subordinated Debentures.”
If
an
event of default under the trust agreement has occurred and is continuing,
the
holder of the common securities of the trust, or the holders of a majority
in
liquidation amount of the trust preferred securities of the trust, will be
entitled to appoint, remove or replace the property trustee and/or the Delaware
trustee. The right to vote to appoint, remove or replace the administrative
trustees is vested exclusively in the holder of the common securities, and
in no
event will the holders of trust preferred securities have that
right.
Unless
otherwise specified in the applicable prospectus supplement, the trust has
a
term of 40 years, but may be dissolved earlier as provided in the trust
agreement.
AGL
Capital will pay all fees and expenses related to the trust and the offering
of
trust preferred securities.
If
the
trust issues and sells the trust securities, and subsequently purchases debt
securities from us, we reflect such amounts payable to the trust as “notes
payable to trust” in our consolidated financial statements. There are
no separate financial statements of the trust in this prospectus. We
do not believe such financial statements would be helpful
because:
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The
trust is a wholly-owned subsidiary of AGL Capital, and the financial
information of AGL Capital and the notes payable to the trust are
included
with the consolidated financial statements and financial information
of
AGL Resources, which is filed under the Exchange
Act.
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The
trust does not have any independent operations other than issuing
the
trust preferred securities and common securities and purchasing the
junior
subordinated debentures.
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The
obligations of AGL Capital and AGL Resources under the junior subordinated
debentures and trust preferred securities guarantee have the effect
of
providing a full, irrevocable and unconditional guarantee of the
trust’s
obligations under the trust preferred securities. In the event that
the
trust fails to pay distributions on the trust preferred securities
due to
a failure of AGL Capital to pay interest or principal on the junior
subordinated debentures, pursuant to the trust preferred securities
guarantee, a holder of the trust preferred securities may institute
a
proceeding directly against AGL Capital or AGL Resources for enforcement
of AGL Capital’s payment obligations to such holder on the junior
subordinated debentures.
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The
trust
is not, and will not become, subject to the information reporting requirements
of the Exchange Act.
Investing
in our securities involves risks. You should carefully consider any
specific risks discussed or incorporated by reference in the applicable
prospectus supplement, together with all other information contained in the
prospectus supplement or incorporated by reference in this
prospectus. You should also consider the risks, uncertainties and
assumptions discussed under the caption “Risk Factors” included in our most
recent Annual Report on Form 10-K incorporated by reference in this prospectus,
and which may be amended, supplemented or superseded from time to time by other
reports we file with the SEC in the future.
Unless
otherwise indicated in the prospectus supplement, we will use the net proceeds
we receive from the sale of the securities described in this prospectus for
general corporate purposes, among other things. We may invest funds
not immediately required for such purposes in short-term investment grade
securities. The amount and timing of sales of the securities
described in this prospectus will depend on market conditions and the
availability of other funds.
Our
ratio
of earnings to fixed charges for each of the five most recently completed fiscal
years and for the most recent interim period is as follows:
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Year
Ended December 31,
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Six
Months Ended June 30, 2007
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2006
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2005
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2004
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2003
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2002
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Ratio
of Earnings to Fixed Charges
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4.40
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3.57
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3.60
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3.98
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3.57
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2.69
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For
purposes of computing the ratio of earnings to fixed charges, earnings consist
of the sum of income from continuing operations before income taxes and the
cumulative effect of change in accounting method, interest expense and the
portion of rent expense deemed to represent interest. Fixed charges
consist of interest incurred, whether expensed or capitalized, including
amortization of debt issuance costs, if applicable, and the portion of rent
expense deemed to represent interest.
The
debt
securities and related guarantees will be issued by AGL Capital under an
indenture dated as of February 20, 2001, as supplemented and modified, as
necessary, among AGL Capital, AGL Resources and The Bank of New York Trust
Company, N.A., as trustee. The indenture provides for the issuance
from time to time of debt securities in an unlimited dollar amount and an
unlimited number of series. We may also sell hybrid securities that
combine certain features of the debt securities and other securities described
in this prospectus, or convertible securities that contain some features of
the
debt securities described below and that are convertible into one or more other
securities described in this prospectus. The debt
securities will be guaranteed by AGL Resources under the guarantees described
below.
The
following description of the terms of the debt securities and the guarantees
summarizes the material terms that will apply to the debt securities and the
guarantees. The description is not complete, and we refer you to the
indenture, a copy of which is an exhibit to the registration statement of which
this prospectus is a part. For your reference, in several cases
below, we have noted the section in the indenture that the paragraph
summarizes. The referenced section of the indenture and the
definitions of capitalized terms are incorporated by reference in the following
summary.
Prospective
purchasers of debt securities should be aware that special United States federal
income tax, accounting and other considerations may be applicable to instruments
such as the debt securities. Debt securities may be issued as
Original Issue Discount Securities (as defined below). The special
United States federal income tax and other considerations applicable to Original
Issue Discount Securities will be described in detail in the applicable
prospectus supplement or term sheet relating to an issue of such debt
securities. “Original Issue Discount Security” generally means any
debt security that (i) is issued at a price lower than its principal amount,
(ii) does not require the payment of interest in cash or property (other than
debt instruments of the issuer) at least annually throughout the term of the
debt security or (iii) provides for interest that is below market
rates. An Original Issue Discount Security provides that, upon
acceleration of its maturity, an amount less than its principal amount will
become due and payable. If a debt security is an Original Issue
Discount Security, a portion of its principal amount may be treated as original
issue discount. A holder of an Original Issue Discount Security
generally must accrue original issue discount over the life of the debt security
and generally is taxable on such accrued original issue discount as ordinary
income similar to interest even if such holder is on the cash method of
accounting. This means that a holder of an Original Issue Discount
Security may be required to report and pay tax on original issue discount income
before such holder receives the cash that corresponds to that
income.
The
indenture does not limit the aggregate principal amount of the debt securities
that may be issued thereunder and provides that the debt securities may be
issued from time to time in series. The debt securities will be
unsecured and will rank on parity with all of our other unsecured and
unsubordinated indebtedness, unless otherwise provided in a prospectus
supplement.
The
prospectus supplement and any related pricing supplement will describe certain
terms of the offered debt securities, including:
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the
title of the offered debt
securities;
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any
limit on the aggregate principal amount of the offered debt
securities;
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the
person or persons to whom interest on the offered debt securities
shall be
payable on any interest payment date if other than the person in
whose
name the offered debt security is registered on the regular record
date;
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the
date or dates on which the principal of the offered debt securities
is
payable;
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the
rate or rates (or manner in which interest is to be determined) at
which
the offered debt securities will bear interest, if any, and the date
from
which such interest, if any, will accrue and the regular record date
for
the interest payable on the offered debt securities on any interest
payment date;
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the
periods within which, the prices at which and the terms and conditions
upon which the offered debt securities may be redeemed, in whole
or in
part, at our option;
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our
obligation, if any, to redeem or purchase the offered debt securities
pursuant to any sinking fund or analogous provision or at the option
of
the holder, the period or periods within which, and the price or
prices at
which and the terms and conditions upon which such offered debt securities
will be redeemed or purchased;
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whether
the offered debt securities are to be issued in whole or in part
in the
form of one or more global notes and, if so, the identity of the
depositary for such global notes;
and
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any
events of default (in addition to those specified in the indenture)
or
other terms and conditions with respect to the offered debt securities
that are not inconsistent with the terms of the
indenture.
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Unless
otherwise provided in the prospectus supplement or a pricing supplement, the
debt securities will be issued only in fully registered form, without coupons,
in denominations of $1,000 or any integral multiple thereof.
One
or
more series of debt securities may be issued as discounted debt securities
(bearing no interest or interest at a rate which, at the time of issuance,
is
below market rates) to be sold at a substantial discount below their stated
principal amount. Special federal income tax and other considerations applicable
thereto will be described in the prospectus supplement relating
thereto.
The
indenture provides that all debt securities of any one series need not be issued
at the same time and that we may, from time to time, issue additional debt
securities of a previously issued series. In addition, the indenture
provides that we may issue debt securities with terms different from those
of
any other series of debt securities and, within a series of debt securities,
terms, such as interest rate or manner in which interest is calculated, original
issue date, redemption provisions and maturity date, may differ.
Except
as
may be provided in the applicable prospectus supplement, interest, if any,
on
each debt security payable on each interest payment date will be paid to the
person in whose name such debt security is registered as of the close of
business on the regular record date relating to such interest payment
date. However, if there has been a default in the payment of interest
on any debt security, such defaulted interest may be payable to the holder
of
such debt security as of the close of business on a date selected by the trustee
not more than 15 days and not less than 10 days prior to the date we propose
for
payment of such defaulted interest. (See Section 307.)
Principal
of, and premium and interest, if any, on the debt securities will be payable
at
the office of the trustee designated for such purpose or at any paying agency
we
maintain for such purpose. We may appoint one or more paying agents
and may remove any paying agent, all in our discretion. The
applicable prospectus supplement will identify any paying agent
appointed.
The
transfer of the debt securities may be registered, and the debt securities
may
be exchanged for other debt securities of authorized denominations and of like
tenor and aggregate principal amount at the office of the trustee designated
for
such purpose or at any paying agency we maintain for such purpose. We
may appoint one or more additional security registrars or transfer agents and
may remove any security registrar or transfer agent, all in our
discretion. The applicable prospectus supplement will identify any
additional security registrar or transfer agent appointed.
No
service charge will be made for any registration of transfer or exchange of
the
debt securities, but we may require payment of a sum sufficient to cover any
tax
or other governmental charge payable in connection therewith. We will
not be required:
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to
issue, register the transfer of or exchange debt securities during
the
period of 15 days prior to giving any notice of redemption
or
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to
issue, register the transfer of or exchange any debt security selected
for
redemption in whole or in part, except the unredeemed portion of
any debt
security being redeemed in part. (See Section
305.)
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Any
terms
for the optional or mandatory redemption of the offered debt securities will
be
set forth in the applicable prospectus supplement. In accordance with
the terms of the indenture, debt securities will be redeemable only upon notice,
by mail, not less than 30 nor more than 60 days prior to the date fixed for
redemption and, if less than all of the debt securities of any series are to
be
redeemed, the particular debt securities will be selected by the security
registrar by such method as the trustee deems fair and
appropriate. (See Sections 403 and 404.)
Any
notice of optional redemption may state that such redemption shall be
conditional upon the receipt by the trustee, on or prior to the date fixed
for
such redemption, of money sufficient to pay the principal of and premium and
interest, if any, on such debt securities and that if such money has not been
so
received, such notice will be of no force or effect, and we will not be required
to redeem such debt securities. (See Section 404.)
The
following are events of default under the indenture with respect to debt
securities of any series:
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failure
to pay any interest on any debt security within 30 days after the
same
becomes due and payable;
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failure
to pay principal of or any premium on any debt security within three
(3)
business days of when due;
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failure
to perform, or breach of, any other covenant or warranty in the indenture
(other than a covenant or warranty included in the indenture solely
for
the benefit of one or more series of debt securities other than that
series), continued for 90 days after written notice to us by the
trustee
or by the holders of at least 25% in principal amount of the outstanding
debt securities to us and the trustee as provided in the
indenture;
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certain
events of bankruptcy, insolvency, conservatorship, receivership or
reorganization; and
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any
other event of default provided with respect to the debt securities
of
that series. (See Section
801.)
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No
event
of default with respect to the debt securities of one series necessarily
constitutes an event of default with respect to the debt securities of any
other
series issued under the indenture.
If
an
event of default other than certain events of bankruptcy, insolvency,
conservatorship, receivership or reorganization occurs and is continuing, either
the trustee or the holders of at least 33% in aggregate principal amount of
the
outstanding debt securities of that series may declare the principal amount
of
all the outstanding debt securities of that series to be due and payable
immediately; provided, however, that if such an event of default occurs and
is
continuing with respect to more than one series of debt securities, the trustee
or the holders of not less than 33% in aggregate principal amount of the
outstanding debt securities of all such series, considered as one class, may
make such declaration of acceleration and not the holders of the debt securities
of any of such series. (See Section 802.)
The
holders of a majority in aggregate principal amount of the outstanding debt
securities of each series may, on behalf of all holders of the debt securities
of that series, waive any past default under the indenture with respect to
the
debt securities of that series, except a default in the payment of principal
or
premium or interest, if any, or in respect of a provision of the indenture
which
cannot be amended or modified without the consent of the holder of each
outstanding debt security of the series affected. (See Section
813.)
At
any
time after the declaration of acceleration with respect to the debt securities
of any series has been made, but before a judgment or decree based on
acceleration has been obtained, the event or events of default giving rise
to
such declaration of acceleration shall, without further act, be deemed to have
been waived, and such declaration and its consequences shall, without further
act, be deemed to have been rescinded and annulled if:
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we
have paid or deposited with the trustee a sum sufficient to
pay:
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(1)
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all
overdue interest on all debt securities of such
series;
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(2)
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the
principal of and premium, if any, on any debt securities of such
series
which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed hereof in such
debt
securities;
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(3)
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to
the extent that payment of such interest is lawful, interest upon
overdue
interest at the rate or rates prescribed therefor in such debt
securities;
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(4)
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all
amounts due to the trustee under the indenture;
and
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any
other event or events of default with respect to the debt securities
of
such series, other than the nonpayment of the principal of the debt
securities of such series which has become due solely by such declaration
of acceleration, have been cured or waived as provided in the
indenture. (See Section
802.)
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The
indenture provides that, subject to the duty of the trustee during the
continuance of an event of default to act with the required standard of care,
the trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request or direction of any of the holders, unless
such holders shall have offered to the trustee reasonable
indemnity. Subject to such provisions for the indemnification of the
trustee and subject to certain other limitations, the holders of a majority
in
aggregate principal amount of the outstanding debt securities of any series
will
have the right to direct the time, method and place of conducting any
proceedings for any remedy available to the trustee, or exercising any trust
or
power conferred on the trustee, with respect to the debt securities of that
series; provided, however, that if an event of default occurs and is continuing
with respect to more than one series of debt securities, the holders of a
majority in aggregate principal amount of the outstanding debt securities of
all
such series, considered as one class, will have the right to make such
direction, and not the holders of the debt securities of any one of such series;
and provided, further, that:
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such
direction will not be in conflict with any rule of law or with the
indenture and would not involve the trustee in personal liability
in
circumstances where reasonable indemnity could not be adequate
and
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the
trustee may take any other action it deems proper which is not
inconsistent with such direction. (See Section
812.)
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The
right
of a holder of any debt security of such series to institute a proceeding with
respect to the indenture is subject to the following conditions
precedent:
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the
holder shall have previously given written notice to the trustee
of a
continuing event of default;
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the
holders of not less than a majority in aggregate principal amount
of the
outstanding securities of all series in respect to which an event
of
default shall have occurred and be continuing shall have made a written
request to the trustee to institute proceedings in respect of the
event of
default;
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the
holders shall have offered to the trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with
such
request;
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the
trustee for 60 days after its receipt of such notice, request and
offer of
indemnity shall have failed to institute any such proceedings;
and
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the
trustee shall have not received direction inconsistent with the written
request during the 60 day period by the holders of a majority in
aggregate
principal amount of the outstanding securities of all series in respect
of
which an event of default shall have occurred. (See Section
807.)
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However,
each holder has an absolute right to receive payment of principal and premium
and interest, if any, when due and to institute suit for the enforcement of
any
such payment. (See Section 808.) The indenture provides
that the trustee, within 90 days after the occurrence of any default thereunder
with respect to the debt securities of a series, is required to give the holders
of the indenture securities of such series notice of any default known to it,
unless cured or waived; provided, however, that, except in the case of a default
in the payment of principal of or premium or interest, if any, on any debt
securities of such series, the trustee may withhold such notice if the trustee
determines that it is in the interest of such holders to do so; and provided,
further, that in the case of an event of default of the character specified
above in the third bullet point under “Events of Default,” no such
notice shall be given to such holders until at least 75 days after the
occurrence thereof. (See Section 902.)
The
indenture requires us to annually furnish to the trustee a statement as to
our
performance of certain obligations and as to any default in such
performance. The indenture also requires us to notify the trustee of
any event of default within ten days after certain of our officers obtain actual
knowledge thereof. (See Section 606.)
Certain
modifications and amendments of the indenture may be made by us and the trustee
without the consent of the holders, including those which:
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evidence
the assumption by any of our successors of our obligations under
the
indenture or with respect to the debt
securities;
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add
to our covenants for the benefit of the holders or surrender any
of our
rights under the indenture;
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add
any events of default, in addition to those specified in the indenture,
with respect to any series of outstanding debt
securities;
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change
or eliminate any provision of the indenture or add any new provision
to
the indenture; provided, however, that if such change, elimination
or
addition will adversely affect the interests of holders of debt securities
of any series in any material respect, such change, elimination or
addition will become effective with respect to such series only when
there
is no debt security of such series remaining outstanding under the
indenture;
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provide
collateral security for the debt
securities;
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establish
the form or terms of debt securities of any
series;
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evidence
the appointment of a separate or successor trustee with respect to
the
debt securities of one or more series and to add to or change any
of the
provisions of the indenture as shall be necessary to provide for
or to
facilitate the administration of the trusts under the indenture by
more
than one trustee;
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provide
for the procedures required to permit the utilization of a noncertificated
system of registration for any series of debt
securities;
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subject
to certain conditions, change the place where debt securities may
be
transferred, exchanged or paid; or
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cure
any ambiguity or inconsistency or make any other provisions with
respect
to matters and questions arising under the indenture, provided such
provisions shall not adversely affect the interests of the holders
of debt
securities of any series in any material respect. (See Section
1201.)
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Without
limiting the generality of the foregoing, if the Trust Indenture Act of 1939,
as
amended (which we refer to as the Trust Indenture Act), is amended after the
date of the indenture to require changes to the indenture or the incorporation
therein of additional provisions or permit changes to, or the elimination of,
provisions which, at the date of the indenture or at any time thereafter, are
required by the Trust Indenture Act to be contained in the indenture, the
trustee and we may, without the consent of any holders, enter into one or more
supplemental indentures to effect or reflect any such change, incorporation
or
elimination.
Modifications
and amendments of the indenture may be made by the trustee and us with the
consent of the holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of all series then outstanding under the
indenture and affected by such modification or amendment, considered as one
class; provided, however, that no such modification or amendment may, without
the consent of the holders of each outstanding debt security affected
thereby:
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change
the stated maturity of the principal of, or any installment of principal
of or interest, if any, on, any debt
security;
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reduce
the principal amount of, or premium or interest, if any, on, any
debt
security;
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reduce
the amount of principal of an original issue discount debt security
payable upon acceleration of the maturity
thereof;
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change
the currency in which any principal of, or premium or interest, if
any,
on, any debt security is payable;
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impair
the right to institute suit for the enforcement of any payment on
or with
respect to any debt security;
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reduce
the percentage in principal amount of the outstanding debt securities
of
any series, the consent of whose holders is required for modification
or
amendment of the indenture or for waiver of compliance with certain
provisions of the indenture or for waiver of certain
defaults;
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reduce
the requirements for quorum or voting;
or
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amend
provisions of the indenture relating to waivers of covenants affecting
the
amount of securities that may be authenticated and delivered, waivers
of
past defaults and supplemental indentures requiring the consent of
the
holders.
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A
supplemental indenture which changes or eliminates any covenant or other
provision of the indenture which has expressly been included solely for the
benefit of one or more particular series of debt securities, or which modifies
the rights of the holders of debt securities of such series with respect to
such
covenant or other provision, shall be deemed not to affect the rights under
the
indenture of the holders of any other debt securities. (See Section
1202.)
We
will
cause (or, with respect to property owned in common with others, make reasonable
effort to cause) all of our properties used or useful in the conduct of our
business to be maintained and kept in good condition, repair and working order
and will cause (or, with respect to property owned in common with others, make
reasonable effort to cause) all necessary repairs, renewals, replacements,
betterments and improvements thereof to be made, all as, in our judgment, may
be
necessary so that our business may be properly conducted; provided, however,
that the foregoing will not prevent us from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of our properties if
such discontinuance is, in our judgment, desirable in the conduct of our
business and will not adversely affect the interests of the holders of debt
securities of any series in any material respect. (See Section
605.)
Subject
to the provisions described in the next paragraph, we will do or cause to be
done all things necessary to preserve and keep in full force and effect our
corporate existence and rights (charter and statutory) and our franchises;
provided, however, that we will not be required to preserve any such right
or
franchise if, in our judgment, preservation thereof is no longer desirable
in
the conduct of our business and the failure to preserve any such right or
franchise will not adversely affect the interests of the holders of debt
securities of any series in any material respect. (See Section
604.)
We
may,
without the consent of the holders of any of the outstanding debt securities
under the indenture, merge into, consolidate with, or sell, lease or convey
all
or substantially all of our assets to a successor company organized under the
laws of the United States, any state thereof or the District of Columbia,
provided, however, that such successor company assumes our obligations on the
debt securities and under the indenture, that after giving effect to the
transaction no event of default, and no event which, after notice or lapse
of
time or both would become an event of default, will have occurred and be
continuing, and that we will have delivered to the trustee an opinion of counsel
and an officer’s certificate as provided in the indenture. (See
Section 1101.) The term “substantially all” when used in reference to
the sale, lease or conveyance of our assets has not been interpreted under
governing law to represent a specific quantitative test as applied to us and,
as
a consequence, holders may not be able to determine when we have entered into
a
transaction that sells, leases or conveys substantially all of our
assets. As a result of this uncertainty, it may be difficult for the
holders to determine whether such sale, lease or conveyance has occurred and
whether to declare an event of default and exercise acceleration
rights. Further, there could be a disagreement between the holders
and us over whether such a sale, lease or conveyance of our assets qualifies
as
substantially all of our assets. To the extent that the holders elect
to exercise their rights under the indenture resulting from what the holders
deem to be a sale, lease or conveyance of substantially all of our assets and
we
contest such an election, there can be no assurances as to how a court would
interpret the meaning of substantially all of our assets.
We
may
terminate our obligations (except for certain specified surviving obligations
described below) under the indenture with respect to debt securities of any
series on the terms and subject to the conditions contained in the indenture,
by
depositing in trust with the trustee cash or eligible obligations (as defined
below) (or a combination thereof) sufficient to pay the principal of and
premium, if any, and interest, if any, due and to become due on the debt
securities of such series on or prior to their maturity or redemption date
in
accordance with the terms of the indenture and such debt securities. (See
Section 701.)
The
indenture, with respect to any and all series of debt securities (except for
certain specified surviving obligations) will be discharged and cancelled upon
the satisfaction of certain conditions, including:
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the
payment in full of the principal of (and premium, if any) and interest
on
all of the debt securities of such series or the deposit with the
trustee
of an amount in cash or eligible obligations (or a combination thereof)
sufficient for such payment or redemption, in accordance with the
indenture;
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the
payment by us of all other sums required under the indenture;
and
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the
delivery of a certificate by us to the trustee stating that all conditions
relating to the satisfaction and discharge of the indenture have
been
complied with. (See Section 702.)
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Eligible
obligations include:
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with
respect to debt securities denominated in United States dollars,
government obligations (which include direct obligations of, or
obligations unconditionally guaranteed by, the United States of America
entitled to the benefit of the full faith and credit thereof and
certificates, depositary receipts or other instruments which evidence
a
direct ownership interest in such obligations or in any specific
interest
or principal payments due in respect thereof);
and
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with
respect to debt securities denominated in a currency other than United
States dollars or in a composite currency, such other obligations
or
instruments as shall be specified with respect to such debt securities,
as
contemplated by the indenture.
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Notwithstanding
the satisfaction and discharge of our obligations under the indenture as
described above, the following obligations of AGL Capital and the trustee in
respect of our debt securities shall survive:
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the
obligation to execute, authenticate and deliver temporary securities
(Section 304);
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the
obligation to maintain a security register to provide for the registration
of the debt securities and the registration of their transfer and
exchange
(Section 305);
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the
obligation to execute, authenticate and deliver debt securities in
exchange for mutilated securities surrendered to the trustee or in
exchange for lost and stolen debt securities (Section
306);
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the
obligation to give proper notice of redemption (Section
404);
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the
obligation to give notice of a sinking fund payment date for the
debt
securities (Section 503);
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the
obligation to maintain an office or agency where the debt securities
may
be surrendered for registration of transfer or exchange and where
notices
and demands to or from the Company may be served (Section
602);
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the
obligation for money for debt securities payments to be held in trust
(Section 603);
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obligations
regarding satisfaction and discharge of the debt securities and the
indenture and the application of trust money (Article
Seven);
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obligations
regarding compensation and reimbursement and indemnification of the
trustee (Section 907); and
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the
obligation of the trustee relating to the appointment of an authenticating
agent (Section 914).
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In
order
to terminate our obligations in respect of any series of debt securities, we
must deliver to the trustee an opinion of counsel to the effect that the holders
of that series of securities will not recognize income, gain or loss for federal
income tax purposes as a result.
For
federal income tax purposes, any deposit contemplated by the first two
paragraphs of this section may be treated as a taxable exchange of the related
debt securities for an issue of obligations of the trust or a direct interest
in
the cash and securities held in the trust. In that case, holders of such debt
securities would recognize gain or loss as if the trust obligations or the
cash
or securities deposited, as the case may be, had actually been received by
them
in exchange for their debt securities. Such holders thereafter would be required
to include in income a share of the income, gain or loss of the trust. The
amount so required to be included in income could be different from the amount
that would be includable in the absence of such deposit. Prospective investors
are urged to consult their own tax advisors as to the specific consequences
to
them of such deposit.
The
debt
securities and the indenture will be governed by and construed in accordance
with the laws of the State of New York.
AGL
Resources will fully and unconditionally guarantee to each holder of debt
securities and to the trustee and its successors the due and punctual payment
of
the principal of and premium, if any, and interest, if any, on the debt
securities. The guarantees apply whether the payment is due at the maturity
date
of the debt securities, on an interest payment date, or as a result of
acceleration, an offer to purchase or otherwise. The guarantees
include payment of interest on the overdue principal of and interest, if any,
on
the debt securities (if lawful) and all other obligations of AGL Capital under
the indenture.
The
guarantees will remain valid even if the indenture is found to be
invalid. AGL Resources is obligated under the guarantees to pay any
guaranteed amount immediately after AGL Capital’s failure to do so.
The
indenture and Section 311 of the Trust Indenture Act contain limitations on
the
right of the trustee, should it become our creditor, to obtain payment of
claims, or to realize on property received in respect of any such claim as
security or otherwise in cases where the trustee is, or has become, our direct
or indirect creditor within three months prior to or subsequent to an event
of
default. In such cases, unless and until such event of default is cured, the
trustee must set apart and hold as a special account for the benefit of the
trustee and the holders of the debt securities, an amount equal to any and
all
reductions in the amount due and owing to the trustee as a creditor calculated
after the beginning of the three month period; and all property received by
the
trustee in respect of any claim as a creditor after the beginning of the three
month period, or an amount equal to the proceeds of any such property, if the
property has been disposed of. The trustee will be permitted to engage in other
transactions with us; provided, however, that if the trustee acquires any
conflicting interest, it must eliminate such conflict or resign.
The
indenture provides that, in case an event of default shall occur and be
continuing, the trustee will be required to use the degree of care and skill
of
a prudent person in the conduct of his or her own affairs in the exercise of
its
power.
The
trust
preferred securities will be issued pursuant to the terms of a trust agreement
and represent preferred undivided beneficial interests in the assets of the
trust. The holders of the trust preferred securities will be entitled to a
preference over the holders of the trust’s common securities in certain
circumstances with respect to Distributions and amounts payable on redemption
of
the trust preferred securities or liquidation of the trust. See
“—Subordination of Common Securities.” The trust agreement will be
qualified under the Trust Indenture Act. The following description is a summary
of the material aspects of the trust preferred securities, the common securities
and the trust agreement.
The
trust
agreement authorizes the trustees, on behalf of the trust, to issue trust
preferred securities, which represent preferred undivided beneficial interests
in the assets of the trust, and common securities, which represent common
undivided beneficial interests in the assets of the trust. All of the common
securities will be owned by AGL Capital. The face value, or liquidation amount,
for the trust preferred securities will be limited to a certain dollar amount
established at the time that the specific trust preferred securities are
authorized. The trust preferred securities will rank equal in priority, and
payments will be made thereon pro rata, with the common securities except as
described under “—Subordination of Common Securities.” Legal title to
the junior subordinated debentures will be held by the property trustee in
trust
for the benefit of the holders of the trust and the trust preferred securities
and common securities. The trust preferred guarantee will not guarantee payment
of distributions or amounts payable on redemption of the trust preferred
securities or liquidation of the trust when the trust does not have funds on
hand legally available for such payments. See “Description of
Trust Preferred Guarantee.”
Distributions
on the trust preferred securities will be cumulative and will be payable on
the
dates payable to the extent the trust has funds available for the payment of
distributions. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which distributions are payable on the trust preferred
securities is not a business day, payment of the distribution payable on such
date will be made on the next succeeding day that is a business day (and without
any interest or other payment in respect to any such delay), in each case with
the same force and effect as if made on such date. A “business day” means any
day other than a Saturday or a Sunday, or a day on which banking institutions
in
the City of New York, New York or Atlanta, Georgia are authorized or required
by
law or executive order to remain closed.
So
long
as no debenture event of default shall have occurred and be continuing, AGL
Capital will have the right under the indenture to defer the payment of interest
on the junior subordinated debentures at any time or from time to time for
a
period not exceeding 20 consecutive quarters with respect to each such extended
interest payment period, provided that no extended interest payment period
may
extend beyond the stated maturity date. Upon any election, quarterly
distributions on the trust preferred securities will be deferred by the trust
during the extended interest payment period. Distributions to which
holders of the trust preferred securities are entitled during the extended
interest payment period will accumulate additional Distributions at a specific
rate per annum, compounded quarterly from the relevant distribution
date. The term “Distributions,” as used herein, shall include any
such additional distributions.
Prior
to
the termination of any extended interest payment period, AGL Capital may further
extend such extended interest payment period, provided that such extension
does
not cause the extended interest payment period to exceed 20 consecutive quarters
or to extend beyond the stated maturity date. Upon the termination of any
extended interest payment period and the payment of all amounts then due, and
subject to the foregoing limitations, AGL Capital may elect to begin a new
extended interest payment period. AGL Capital must give the property trustee,
the administrative trustees and the debenture trustee notice of its election
of
an extended interest payment period at least one business day prior to the
earlier of (i) the date the distributions on the trust preferred securities
would have been payable except for the election to begin an extended interest
payment period or (ii) the date the administrative trustees are required to
give
notice to any securities exchange or quotation system or to holders of such
trust preferred securities of the record date or the date such distributions
are
payable but in any event not less than one business day prior to such record
date. There is no limitation on the number of times that AGL Capital may elect
to begin an extended interest payment period. See “Description of
Junior Subordinated Debentures—Option to Extend Interest Payment
Date.”
During
any extended interest payment period, neither AGL Resources nor AGL Capital
may:
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declare
or pay any dividends or distributions on, or redeem, purchase, acquire,
or
make a liquidation payment with respect to, any of its capital stock
(which includes common and preferred
stock);
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make
any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities that rank equal in
priority with or junior in right of payment to, with respect to AGL
Capital, the junior subordinated debentures or with respect to AGL
Resources, debt that is subordinated to its senior indebtedness;
or
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make
any guarantee payments with respect to any guarantee of the debt
securities of any of their respective subsidiaries if such guarantees
rank
equal in priority with or junior in right of payment to, with respect
to
AGL Capital, the junior subordinated debentures or with respect to
AGL
Resources, debt that is subordinated to its senior indebtedness (other
than (a) dividends or distributions in shares of, or options, warrants
or
rights to subscribe for or purchase shares of, common stock, (b)
any
declaration of a dividend in connection with the implementation of
a
stockholders’ rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the trust preferred guarantee and the
junior
subordinated debenture guarantee, (d) the purchase of fractional
shares
resulting from a reclassification of capital stock or the exchange
or
conversion of one class, or series of capital stock for another class
or
series of capital stock, and (e) the purchase of fractional interests
in
shares of capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged).
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The
revenue of the trust available for distribution to holders of the trust
preferred securities and common securities will be limited to payments under
the
junior subordinated debentures in which the trust will invest the proceeds
from
the issuance and sale of the trust preferred securities. See
“Description of Junior Subordinated Debentures—General.” If AGL Capital
does not make interest payments on the junior subordinated debentures, the
trust
will not have funds available to pay distributions on the trust preferred
securities and common securities. AGL Resources will guarantee on a junior
subordinated basis the payment of the principal (and premium, if any) and
interest on the junior subordinated debentures, except that no payment of
interest will be made under the debenture guarantee for any period during which
AGL Capital has exercised its right to defer interest payments on the junior
subordinated debentures.
Upon
the
repayment on the stated maturity date or prepayment prior to the stated maturity
date of the junior subordinated debentures, the proceeds from such repayment
or
prepayment shall be applied by the property trustee to redeem a like amount
(as
defined below) of the trust securities, upon not less than 10 nor more than
60
days’ notice of a date of redemption, at the applicable redemption price, which
shall be equal to:
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in
the case of the repayment of the junior subordinated debentures on
the
stated maturity date, the maturity redemption price (equal to the
principal of, and accrued interest on, the junior subordinated
debentures);
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in
the case of the optional prepayment of the junior subordinated debentures
prior to a date to be specified in the trust agreement upon the occurrence
and continuation of a tax event or an investment company act Event,
the
special event redemption price (equal to the special event prepayment
price in respect of the junior subordinated debentures);
and
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in
the case of the optional prepayment of the junior subordinated debentures
on or after a date to be specified in the trust agreement, the optional
redemption price (equal to the optional prepayment price in respect
of the
junior subordinated debentures). See “Description of Junior
Subordinated Debentures—Optional Redemption” and “—Special Event
Redemption.”
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“Like
amount” means:
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with
respect to a redemption of the trust preferred securities, trust
preferred
securities having a liquidation amount equal to the principal amount
of
junior subordinated debentures to be paid in accordance with their
terms
and
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with
respect to a distribution of junior subordinated debentures upon
the
liquidation of the trust, junior subordinated debentures having a
principal amount equal to the liquidation amount of the trust preferred
securities of the holder to whom such junior subordinated debentures
are
distributed.
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The
trust
preferred securities and the common securities will be mandatorily redeemed
in
whole (but not in part) in the event that AGL Capital redeems the junior
subordinated debentures in whole (but not in part). For information regarding
AGL Capital’s special redemption rights relating to the junior subordinated
debentures, please see “Description of Junior Subordinated
Debentures—Special Event Redemption.”
If
applicable, trust preferred securities shall be redeemed at the applicable
redemption price with the proceeds from the contemporaneous repayment or
prepayment of the junior subordinated debentures. Any redemption of
trust preferred securities shall be made and the applicable redemption price
shall be payable on the redemption date only to the extent that the trust has
funds legally available for the payment of such applicable redemption
price.
If
the
trust gives a notice of redemption in respect of the trust preferred securities,
then, by 12:00 noon, New York City time, on the redemption date, to the extent
funds are legally available, with respect to the trust preferred securities
held
by DTC or its nominees, the property trustee will deposit irrevocably with
DTC
funds sufficient to pay the applicable redemption price. See
“—Form, Denomination, Book-Entry Procedures and
Transfer.” With respect to the trust preferred securities held
in certificated form, the property trustee, to the extent funds are legally
available, will irrevocably deposit with the paying agent for the trust
preferred securities funds sufficient to pay the applicable redemption price
and
will give such paying agent irrevocable instructions and authority to pay the
applicable redemption price to the holders thereof upon surrender of their
certificates evidencing the trust preferred securities. See “—Payment and
Paying Agency.” Notwithstanding the foregoing, distributions
payable on or prior to the redemption date shall be payable to the holders
of
such trust preferred securities on the relevant record dates for the related
distribution dates. If notice of redemption shall have been given and
funds deposited as required, then upon the date of such deposit, all rights
of
the holders of the trust preferred securities will cease, except the right
of
the holders of the trust preferred securities to receive the applicable
redemption price, but without interest on such redemption price, and the trust
preferred securities will cease to be outstanding. In the event that any
redemption date of trust preferred securities is not a business day, then the
applicable redemption price payable on such date will be paid on the next
succeeding day that is a business day (and without any interest or other payment
in respect of any such delay), except that, if such business day falls in the
next calendar year, such payment will be made on the immediately preceding
business day. In the event that payment of the applicable redemption
price is improperly withheld or refused and not paid either by the trust or
by
AGL Resources pursuant to the trust preferred guarantee as described under
“Description of Trust Preferred Guarantee,” distributions on trust
preferred securities will continue to accumulate at the then applicable rate,
from the redemption date originally established by the trust to the date such
applicable redemption price is actually paid, in which case the actual payment
date will be the redemption date for purposes of calculating the applicable
redemption price.
Subject
to applicable law (including, without limitation, United States federal
securities law), we may at any time and from time to time purchase outstanding
trust preferred securities by tender, in the open market or by private
agreement.
Notice
of
any redemption will be mailed at least 10 days but not more than 60 days prior
to the redemption date to each holder of trust preferred securities at its
registered address. Unless AGL Resources defaults in payment of the
applicable prepayment price on, or in the repayment of, the junior subordinated
debentures, on and after the redemption date distributions will cease to accrue
on the trust preferred securities called for redemption.
AGL
Capital will have the right at any time to terminate the trust and cause the
junior subordinated debentures to be distributed to the holders of the trust
securities in liquidation of the trust. Such right is subject to AGL Capital
having received an opinion of counsel to the effect that such distribution
will
not be a taxable event to holders of trust preferred securities.
The
trust
shall automatically terminate upon the first to occur of:
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certain
events of bankruptcy, dissolution or liquidation of AGL
Capital;
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the
distribution of a like amount of the junior subordinated debentures
to the
holders of the trust preferred securities, if AGL Capital, as sponsor,
has
given written direction to the Property Trustee to terminate the
trust
(which direction is optional and, except as described above, wholly
within
the discretion of AGL Capital, as
sponsor);
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redemption
of all of the trust preferred securities as described under
“—Redemption;”
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expiration
of the term of the trust; and
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the
entry of an order for the dissolution of the trust by a court of
competent
jurisdiction.
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If
a
termination occurs as described in the first, second, fourth or fifth bullet
point above, the trust shall be liquidated by the Trustees as soon as
practicable after the receipt of any required regulatory approval by
distributing, after satisfaction of liabilities to creditors of the trust as
provided by applicable law, to the holders of the trust preferred securities
and
common securities a like amount of the junior subordinated debentures, unless
such distribution is determined by the Property Trustee not to be practicable,
in which event such holders will be entitled to receive out of the assets of
the
trust legally available for distribution to holders, after satisfaction of
liabilities to creditors of the trust as provided by applicable law, cash in
an
amount equal to the aggregate of the liquidation amount plus accumulated and
unpaid distributions thereon to the date of payment. If such liquidation
distribution can be paid only in part because the trust has insufficient assets
on hand legally available to pay in full the aggregate liquidation distribution,
then the amounts payable directly by the trust on the trust preferred securities
and the common securities shall be paid on a pro rata basis, except that if
a
debenture event of default has occurred and is continuing, the trust preferred
securities shall have a priority over the common securities. See
“—Subordination of Common Securities.”
After
the
liquidation date is fixed for any distribution of junior subordinated debentures
to holders of the trust preferred securities:
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the
trust preferred securities will no longer be deemed to be
outstanding;
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each
registered global certificate, if any, representing trust preferred
securities and held by DTC or its nominee will receive a registered
global
certificate or certificates representing the junior subordinated
debentures to be delivered upon such distribution;
and
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any
certificates representing trust preferred securities not held by
DTC or
its nominee will be deemed to represent junior subordinated debentures
having a principal amount equal to the liquidation amount of such
trust
preferred securities, and bearing accrued and unpaid interest in
an amount
equal to the accumulated and unpaid distributions on such trust preferred
securities until such certificates are presented to the administrative
trustees or their agent for cancellation, whereupon AGL Capital will
issue
to such holder, and the debenture trustee will authenticate, a certificate
representing such junior subordinated
debentures.
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There
can
be no assurance as to the market prices for the trust preferred securities
or
the junior subordinated debentures that may be distributed in exchange for
the
trust preferred securities if a dissolution and liquidation of the trust were
to
occur. Accordingly, the trust preferred securities that an investor may
purchase, or the junior subordinated debentures that the investor may receive
on
dissolution and liquidation of the trust, may trade at a discount to the price
that the investor paid to purchase the trust preferred securities offered
hereby.
Payment
of distributions on, and the redemption price of, the trust preferred securities
and common securities, as applicable, shall be made pro rata based on the
liquidation amount of the trust preferred securities and common securities;
provided, however, that if on any distribution date or redemption date an Event
of Default shall have occurred and be continuing, no payment of any distribution
on, or applicable redemption price of, any of the common securities, and no
other payment on account of the redemption, liquidation or other acquisition
of
the common securities, shall be made unless payment in full in cash of all
accumulated and unpaid distributions on all of the outstanding trust preferred
securities for all distribution periods terminating on or prior thereto, or
in
the case of payment of the applicable redemption price the full amount of such
redemption price, shall have been made or provided for, and all funds available
to the property trustee shall first be applied to the payment in full in cash
of
all distributions on, or redemption price of, the trust preferred securities
then due and payable.
In
the
case of any event of default, AGL Capital as holder of the common securities
will be deemed to have waived any right to act with respect to such Event of
Default until the effect of such event of default shall have been cured, waived
or otherwise eliminated. Until any such event of default has been so cured,
waived or otherwise eliminated, the property trustee shall act solely on behalf
of the holders of the trust preferred securities and not on behalf of AGL
Capital as holder of the common securities, and only the holders of the trust
preferred securities will have the right to direct the property trustee to
act
on their behalf.
The
occurrence of a Debenture Event of Default (see “Description of Junior
Subordinated Debentures—Junior Subordinated Debenture Events of Default”)
constitutes an “event of default” under the trust agreement. We refer to such an
event as a “Trust Enforcement Event.” In addition, the following constitutes an
event of default under the trust agreement:
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default
by the trust or the property trustee in the payment of any distribution
when it becomes due and payable, and continuation of such default
for a
period of 30 days;
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default
by the trust or the property trustee in the payment of any redemption
price of any trust preferred security when it becomes due and payable;
or
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default
in the performance, or breach, in any material respect, of any other
covenant or warranty of the trustees in the declaration of trust,
and
continuation of such default or breach for a period of 90 days after
notice to the defaulting trustee or
trustees.
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Within
90
days after the occurrence of any event of default actually known to the property
trustee, the property trustee shall transmit notice of such event of default
to
the holders of the trust preferred securities, the administrative trustees
and
AGL Capital, as sponsor, unless such event of default shall have been cured
or
waived.
If
a
debenture event of default has occurred and is continuing, the trust preferred
securities shall have a preference over the common securities as described
under
“—Liquidation of the Trust and Distribution of Junior Subordinated
Debentures” and “—Subordination of Common
Securities.”
For
more
information on events of default under the indenture, see “Description of
Junior Subordinated Debentures—Junior Subordinated Debenture Events of
Default.” Upon the occurrence and continuance of a trust enforcement event,
the property trustee, as the sole holder of the junior subordinated debentures,
will have the right under the indenture to declare the principal amount of
the
junior subordinated debentures due and payable.
If
the
property trustee fails to enforce its rights under the junior subordinated
debentures, the holders of trust preferred securities may, to the extent
permitted by applicable law, institute a legal proceeding against AGL Capital
to
enforce the property trustee’s rights under the junior subordinated debentures
and the indenture without first instituting legal proceedings against the
property trustee or any other person. In addition, if a trust enforcement event
is due to AGL Capital’s failure to pay interest or principal on the junior
subordinated debentures when due, then the registered holder of trust preferred
securities may institute a direct action on or after the due date directly
against AGL Capital for enforcement of payment to that holder of the principal
of or interest on the junior subordinated debentures having a principal amount
equal to the total liquidation amount of that holder’s trust preferred
securities. In connection with such a direct action, we will have the right
to
set off any payment to that holder by us.
Unless
a
debenture event of default shall have occurred and be continuing, any trustee
may be removed at any time by the holders of the common securities. If a
debenture event of default has occurred and is continuing, the property trustee
and the Delaware trustee may be removed at such time by the holders of a
majority in liquidation amount of the outstanding trust preferred
securities. In no event will the holders of the trust preferred
securities have the right to vote to appoint, remove or replace the
administrative trustees, which voting rights are vested exclusively in AGL
Capital as the holder of the common securities. No resignation or
removal of a property trustee or a Delaware trustee and no appointment of a
successor trustee shall be effective until a written acceptance of appointment
has been executed by the successor trustee and delivered to the administrative
trustees and AGL Capital, as sponsor, in accordance with the provisions of
the
trust agreement.
Any
corporation into which the property trustee or the Delaware trustee or any
administrative trustee that is not a natural person, may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Delaware or property trustee
shall be a party, or any corporation succeeding to all or substantially all
the
corporate trust business of such Delaware or property trustee, shall be the
successor of such Delaware or property trustee under the trust agreement,
provided such corporation shall be otherwise qualified and
eligible.
The
trust
may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any corporation or other person, except as
described below. The trust may, at the request of AGL Capital, as sponsor,
with
the consent of the administrative trustees but without the consent of the
holders of the trust preferred securities, merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, a trust organized
as
such under the laws of any State; provided, that:
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such
successor entity either (a) expressly assumes all of the obligations
of
the trust with respect to the trust preferred securities or (b)
substitutes for the trust preferred securities other securities having
substantially the same terms as the trust preferred securities so
long as
the successor securities rank the same as the trust preferred securities
rank in priority with respect to distributions and payments upon
liquidation, redemption and
otherwise;
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AGL
Capital expressly appoints a trustee of such successor entity possessing
the same powers and duties as the property trustee as the holder
of the
junior subordinated debentures;
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the
trust preferred securities or any successor securities are listed,
or any
successor securities will be listed upon notification of issuance,
on any
national securities exchange, quotation system or other organization
on
which the trust preferred securities are then listed or quoted, if
any;
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such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease does not cause the trust preferred securities (including any
successor securities) to be downgraded by any nationally recognized
statistical rating organization;
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such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease does not adversely affect the rights, preferences and privileges
of
the holders of the rust preferred securities (including any successor
securities) in any material
respect;
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such
successor entity has a purpose identical to that of the
trust;
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prior
to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, AGL Capital has received an opinion from independent
counsel to the trust experienced in such matters to the effect that
(a)
such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences
and
privileges of the holders of the trust preferred securities (including
any
successor securities) in any material respect, and (b) following
such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, neither the trust nor such successor entity will be required
to
register as an investment company under the Investment Company Act
of
1940, as amended; and
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AGL
Resources, AGL Capital or any permitted successor or assignee owns
all of
the common securities of such successor entity and guarantees the
obligations of such successor entity under the successor securities
at
least to the extent provided by the
guarantee.
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Notwithstanding
the foregoing, the trust shall not, except with the consent of holders of 100%
in liquidation amount of the trust preferred securities, consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to
any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the trust or the successor entity
not
to be classified as a grantor trust for United States federal income tax
purposes. The term “substantially as an entirety” in reference to the
conveyance, transfer or lease of our properties and assets has not been
interpreted under governing law to represent a specific quantitative test as
applied to us and, as a consequence, holders may not be able to determine when
we have entered into a transaction that conveys, transfers or leases our
properties and assets substantially as an entirety. As a result of this
uncertainty, it may be difficult for the holders to determine whether such
conveyance, transfer or lease has occurred and whether to declare an event
of
default. Further, there could be a disagreement between the holders and us
over
whether such a conveyance, transfer or lease of our properties and assets
reaches the threshold of “substantially as an entirety.” To the extent that the
holders elect to exercise their rights under the trust agreement resulting
from
what the holders deem to be a conveyance, transfer or lease of our properties
and assets substantially as an entirety and we contest such an election, there
can be no assurances as to how a court would interpret the meaning of
substantially as an entirety.
Except
as
provided below and under “—Mergers, Consolidations, Amalgamations or
Replacements of the Trust” and “Description of Trust Preferred
Guarantee—Amendments and Assignment” and as otherwise required by law and
the trust agreement, the holders of the trust preferred securities will have
no
voting rights.
The
trust
agreement may be amended from time to time by the administrative trustees (and
the Delaware trustee or property trustee, if affected by such amendment),
without the consent of the holders of the trust preferred
securities:
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to
cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to
make
any other provisions with respect to matters or questions arising
under
the trust agreement, which shall not be inconsistent with the other
provisions of the trust agreement;
or
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to
modify, eliminate or add to any provisions of the trust agreement
to such
extent as shall be necessary to ensure that the trust will be classified
for United States federal income tax purposes as a grantor trust
at all
times that any trust preferred securities are outstanding or to ensure
that the trust will not be required to register as an “investment company”
under the Investment Company Act provided, however, that such action
shall
not adversely affect in any material respect the interests of the
holders
of the trust securities, and any amendments of the trust agreement
shall
become effective when notice thereof is given to the holders of the
trust
preferred securities.
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The
trust
agreement may be amended by the administrative trustees and AGL
Capital:
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with
the consent of holders representing a majority (based upon liquidation
amount) of the outstanding trust preferred securities;
and
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upon
receipt by the administrative trustees of an opinion of counsel to
the
effect that such amendment or the exercise of any power granted to
the
administrative trustees in accordance with such amendment will not
affect
the trust’s status as a grantor trust for United States federal income tax
purposes or the trust’s exemption from status as an “investment company”
under the Investment Company Act.
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However,
without the consent of each holder of trust preferred securities, the trust
agreement may not be amended to:
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change
the amount or timing of any distribution on the trust preferred securities
or otherwise adversely affect the amount of any distribution required
to
be made in respect of the trust preferred securities as of a specified
date or
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restrict
the right of a holder of trust preferred securities to institute
suit for
the enforcement of any such payment on or after such
date.
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So
long
as any junior subordinated debentures are held by the property trustee, the
administrative trustees shall not:
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direct
the time, method and place of conducting any proceeding for any remedy
available to the indenture trustee, or executing any trust or power
conferred on such property trustee with respect to the junior subordinated
debentures;
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waive
certain past defaults under the
indenture;
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exercise
any right to rescind or annul a declaration of acceleration of the
maturity of the principal of the junior subordinated debentures;
or
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consent
to any amendment, modification or termination of the indenture or
the
junior subordinated debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the holders
of a
majority in liquidation amount of all outstanding trust preferred
securities provided, however, that where a consent under the indenture
would require the consent of each holder of junior subordinated debentures
affected thereby, no such consent shall be given by the property
trustee
without the prior approval of each holder of the trust preferred
securities.
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The
administrative trustees shall not revoke any action previously authorized or
approved by a vote of the holders of the trust preferred securities except
by
subsequent vote of such holders. The property trustee shall notify each holder
of trust preferred securities of any notice of default with respect to the
junior subordinated debentures. In addition to obtaining the foregoing approvals
of such holders of the trust preferred securities, prior to taking any of the
foregoing actions, the administrative trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the trust will not be
classified as an association taxable as a corporation for United States federal
income tax purposes on account of such action.
Any
required approval of holders of trust preferred securities may be given at
a
meeting of such holders convened for such purpose or pursuant to written
consent. The property trustee will cause a notice of any meeting at which
holders of trust preferred securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
given
to each holder of record of trust preferred securities in the manner set forth
in the trust agreement.
No
vote
or consent of the holders of trust preferred securities will be required for
the
trust to redeem and cancel the trust preferred securities in accordance with
the
trust agreement.
Notwithstanding
that holders of the trust preferred securities are entitled to vote or consent
under any of the circumstances described above, any of the trust preferred
securities that are owned by AGL Resources, AGL Capital, the administrative
trustees or any affiliate of AGL Resources or any administrative trustees,
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
Depositary
Procedures
The
Depository Trust Company, or DTC, will act as securities depositary for the
trust preferred securities. DTC has advised the trust and AGL Capital that
DTC
is a limited-purpose trust company created to hold securities for its
participating organizations, referred to as the participants, and to facilitate
the clearance and settlement of transactions in those securities between
participants through electronic book-entry changes in accounts of its
participants. The participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Access
to DTC’s system is also available to other entities such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly which are
referred to as indirect participants. Persons who are not participants may
beneficially own securities held by or on behalf of DTC only through the
participants or the indirect participants. The ownership interest and transfer
of ownership interest of each actual purchaser of each security held by or
on
behalf of DTC are recorded on the records of the participants and indirect
participants.
DTC
is
organized under the New York Banking Law, as a “banking organization” within the
meaning of the New York Banking Law, a member of the Federal Reserve System,
a
“clearing corporation” within the meaning of the New York Uniform Commercial
Code, and a “clearing agency” registered pursuant to the provisions of Section
17A of the Exchange Act. DTC is owned by a number of participants and by the
New
York Stock Exchange, the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. The rules applicable to DTC and its
participants are on file with the Securities and Exchange
Commission.
DTC
has
also advised the trust and AGL Capital that, pursuant to procedures established
by it, (i) upon deposit of the global trust preferred securities, DTC will
credit the accounts of participants designated by the initial purchasers with
portions of the liquidation amount of the global trust preferred securities
and
(ii) ownership of such interests in the global trust preferred securities will
be shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the participants) or by
the
participants and the indirect participants (with respect to other owners of
beneficial interests in the global trust preferred securities).
Investors
in the global trust preferred securities may hold their interests therein
directly through DTC if they are participants, or indirectly through
organizations which are participants. All interests in a global trust preferred
security may be subject to the procedures and requirements of DTC. The laws
of
some states require that certain persons take physical delivery in certificated
form of securities that they own. Consequently, the ability to transfer
beneficial interests in a global trust preferred security to such persons will
be limited to that extent. Because DTC can act only on behalf of participants,
which in turn act on behalf of indirect participants and certain banks, the
ability of a person having beneficial interests in a global trust preferred
security to pledge such interests to persons or entities that do not participate
in the DTC system, or otherwise take actions in respect of such interests,
may
be affected by the lack of a physical certificate evidencing such interests.
For
certain other restrictions on the transferability of the trust preferred
securities, see “—Exchange of Book-Entry Trust Preferred Securities for
Certificated Trust Preferred Securities”.
Except
as
described below, owners of interests in the global trust preferred securities
will not have trust preferred securities registered in their name, will not
receive physical delivery of trust preferred securities in certificated form
and
will not be considered the registered owners or holders thereof under the trust
agreement for any purpose.
The
laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of securities in definitive form. Such laws may impair the
ability to transfer beneficial interests in a global trust preferred
security.
Payments
in respect of the global trust preferred security registered in the name of
DTC
or its nominee will be payable by the property trustee to DTC in its capacity
as
the registered holder under the trust agreement. Under the terms of the trust
agreement, the property trustee will treat the persons in whose names the trust
preferred securities, including the global trust preferred securities, are
registered as the owners thereof for the purpose of receiving such payments
and
for any and all other purposes whatsoever. Consequently, neither the property
trustee nor any agent thereof has or will have any responsibility or liability
for:
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any
aspect of DTC’s records or any participant’s or indirect participant’s
records relating to or payments made on account of beneficial ownership
interests in the global trust preferred securities, or for maintaining,
supervising or reviewing any of DTC’s records or any participant’s or
indirect participant’s records relating to the beneficial ownership
interests in the global trust preferred securities
or
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any
other matter relating to the actions and practices of DTC or any
of its
participants or indirect
participants.
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DTC
has
advised the trust and AGL Capital that its current practice, upon receipt of
any
payment in respect of securities such as the trust preferred securities, is
to
credit the accounts of the relevant participants with the payment on the payment
date, in amounts proportionate to their respective holdings in liquidation
amount of beneficial interests in the relevant security as shown on the records
of DTC unless DTC has reason to believe it will not receive payment on such
payment date. Payments by the participants and the indirect participants to
the
beneficial owners of trust preferred securities will be governed by standing
instructions and customary practices and will be the responsibility of the
participants or the indirect participants and will not be the responsibility
of
DTC, the property trustee, the trust, AGL Capital or AGL Resources. Neither
the
trust, AGL Capital or AGL Resources nor the property trustee will be liable
for
any delay by DTC or any of its participants in identifying the beneficial owners
of the trust preferred securities, and the trust or AGL Capital and the property
trustee may conclusively rely on and will be protected in relying on
instructions from DTC or its nominee for all purposes.
Secondary
market trading activity in interests in the global trust preferred securities
will settle in immediately available funds, subject in all cases to the rules
and procedures of DTC and its participants. Transfers between participants
in
DTC will be effected in accordance with DTC’s procedures, and will be settled in
same-day funds.
DTC
has
advised the trust and AGL Capital that it will take any action permitted to
be
taken by a holder of trust preferred securities only at the direction of one
or
more participants to whose account with DTC interests in the global trust
preferred securities are credited and only in respect of such portion of the
liquidation amount of the trust preferred securities as to which such
participant or participants has or have given such direction. However, if there
is an event of default under the trust agreement, DTC reserves the right to
exchange the global trust preferred securities for legended trust preferred
securities in certificated form and to distribute such trust preferred
securities to its participants.
The
information in this section concerning DTC and its book-entry systems has been
obtained from sources that the trust and AGL Capital believe to be reliable,
but
neither the trust nor AGL Capital takes responsibility for the accuracy
thereof.
Although
DTC has agreed to the foregoing procedures to facilitate transfers of interest
in the global trust preferred securities among participants in DTC, they are
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the trust or AGL
capital nor the property trustee will have any responsibility for the
performance by DTC or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
Exchange
of Book-Entry Trust Preferred Securities for Certificated Trust Preferred
Securities
A
global
trust preferred security is exchangeable for trust preferred securities in
registered certificated form if:
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DTC
notifies the trust that it is unwilling or unable to continue as
depositary for the global trust preferred security and the trust
thereupon
fails to appoint a successor depositary within 90 days or has ceased
to be
a clearing agency registered under the Exchange
Act;
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AGL
Capital in its sole discretion elects to cause the issuance of the
trust
preferred securities in certificated form;
or
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there
shall have occurred and be continuing an event of default or any
event
which after notice or lapse of time or both would be an event of
default
under the trust agreement.
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Payments
in respect of the trust preferred securities held in global form shall be made
to the depositary, which shall credit the relevant accounts at the depositary
on
the applicable distribution dates or in respect of the trust preferred
securities that are not held by the depositary, such payments shall be made
by
check mailed to the address of the holder entitled thereto as such address
shall
appear on the register. The paying agent shall initially be the property trustee
and any co-paying agent chosen by the property trustee and acceptable to the
administrative trustees and AGL Capital. The paying agent shall be permitted
to
resign as paying agent upon 30 days written notice to the property trustee
and
AGL Capital. In the event that the property trustee shall no longer be the
paying agent, the administrative trustees shall appoint a successor (which
shall
be a bank or trust company acceptable to the administrative trustees and AGL
Capital) to act as paying agent.
The
property trustee, other than during the occurrence and continuance of an event
of default, undertakes to perform only such duties as are specifically set
forth
in the trust agreement and, after such event of default, must exercise the
same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the property
trustee is under no obligation to exercise any of the powers vested in it by
the
trust agreement at the request of any holder of trust preferred securities
unless it is offered indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred thereby. If no event of default
has occurred and is continuing and the property trustee is required to decide
between alternative causes of action, construe ambiguous provisions in the
trust
agreement or is unsure of the application of any provision of the trust
agreement, and the matter is not one on which holders of the trust preferred
securities or the common securities are entitled under the trust agreement
to
vote, then the property trustee shall take such action as is directed by AGL
Capital and if not so directed, shall take such action as it deems advisable
and
in the best interests of the holders of the trust preferred securities and
will
have no liability except for its own bad faith, negligence or willful
misconduct.
We
will,
pursuant to an agreement as to expenses and liabilities entered into by us,
AGL
Capital and the trust, irrevocably and unconditionally guarantee to each person
or entity to whom the trust becomes indebted or liable, the full payment of
any
costs, expenses or liabilities of the trust, other than obligations of the
trust
to pay to the holders of the trust preferred securities or other similar
interests in the trust the amounts due to the holders pursuant to the terms
of
the trust preferred securities or other similar interests, as the case may
be.
Third party creditors of the trust may proceed directly against us and AGL
Capital under the agreement as to expenses and liabilities, regardless whether
they had notice of the agreement as to expenses and liabilities.
The
administrative trustees are authorized and directed to conduct the affairs
of
and to operate the trust in such a way that the trust will not be deemed to
be
an “investment company” required to be registered under the Investment Company
Act or classified as an association taxable as a corporation for United States
federal income tax purposes and so that the junior subordinated debentures
will
be treated as indebtedness for United States federal income tax purposes. AGL
Capital and the administrative trustees are authorized to take any action,
not
inconsistent with applicable law, the certificate of trust of the trust or
the
trust agreement, that AGL Capital and the administrative trustees determine
in
their discretion to be necessary or desirable for such purposes, as long as
such
action does not materially adversely affect the interests of the holders of
the
trust preferred securities.
Holders
of the trust preferred securities have no preemptive or similar rights. The
trust may not borrow money, issue debt, execute mortgages or pledge any of
its
assets.
The
trust
agreement will be governed by and construed in accordance with the laws of
the
State of Delaware.
The
junior subordinated debentures are to be issued under an indenture, as
supplemented from time to time, between AGL Capital and The Bank of New York
Trust Company, N.A., as debenture trustee. The indenture will be
qualified under the Trust Indenture Act. The following description is a summary
of the material aspects of the junior subordinated debentures and the
indenture.
Concurrently
with the issuance of the trust preferred securities, the trust will invest
the
proceeds thereof, together with the consideration paid by AGL Capital for the
common securities, in junior subordinated debentures issued by AGL
Capital. The junior subordinated debentures will bear interest at a
specified annual percentage rate, and will be payable quarterly in arrears,
(we
refer to each quarterly payment date as an interest payment date), to the person
in whose name each junior subordinated debenture is registered (unless the
indenture supplement or officer certificate prior to the issuance of the junior
subordinated debentures specifies payment to someone else) on the record date
preceding the relevant payment date. It is anticipated that, until the
liquidation, if any, of the trust, each junior subordinated debenture will
be
held in the name of the property trustee in trust for the benefit of the holders
of the trust preferred securities. The amount of interest payable for
any period will be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on the junior
subordinated debentures is not a business day, then payment of the interest
payable on such date will be made on the next succeeding day that is a business
day (and without any interest or other payment in respect of any such delay)
with the same force and effect as if made on the date such payment was
originally payable. The term “interest,” as used herein, shall
include quarterly interest payments, interest on quarterly payments not paid
on
the applicable interest payment date and additional sums (as described below),
as applicable.
The
junior subordinated debentures will rank equal in priority with all other
debentures and will be unsecured and subordinate and junior in right of payment
to the extent and in the manner set forth in the indenture to all senior
indebtedness. See “—Subordination.” AGL Resources will guarantee on a
junior subordinated basis the payment of the principal (and premium, if any)
and
interest on the junior subordinated debentures, except that no payment of
interest will be made under the debenture guarantee for any period during which
AGL Capital has exercised its right to defer interest payments on the junior
subordinated debentures. AGL Capital is a wholly-owned finance subsidiary of
AGL
Resources. AGL Resources is an energy services holding company with no
independent business operations or source of income of its own. It
conducts substantially all of its operations through its subsidiaries and,
as a
result, AGL Resources depends on the earnings and cash flow of and dividends
or
distributions from its subsidiaries to provide the funds necessary to meet
its
debt and contractual obligations. Furthermore, a substantial portion
of AGL Resources’ consolidated assets, earnings and cash flow is derived from
the operation of its regulated utility subsidiaries, whose legal authority
to
pay dividends or make other distributions to AGL Resources is subject to
regulation.
The
right
of AGL Resources and AGL Capital to participate in any distribution of assets
of
any subsidiary upon such subsidiary’s liquidation or reorganization or
otherwise, is subject to the prior claims of creditors of the subsidiary, except
to the extent AGL Resources and AGL Capital may be recognized as a creditor
of
that subsidiary. Accordingly, the junior subordinated debentures will be
effectively subordinated to all existing and future liabilities of AGL Capital’s
subsidiaries, and holders of junior subordinated debentures should look only
to
the assets of AGL Capital for payments on the junior subordinated debentures.
The indenture does not limit the incurrence or issuance of other secured or
unsecured debt of AGL Resources or AGL Capital, including senior indebtedness.
See “—Subordination.”
The
indenture does not contain provisions that afford holders of the junior
subordinated debentures protection in the event of a highly leveraged
transaction or other similar transactions involving AGL Resources or AGL Capital
that may adversely affect such holders.
If
the
junior subordinated debentures are distributed to the holders of the trust
preferred securities, the junior subordinated debentures may be represented
by
one or more global certificates registered in the name of Cede & Co. as the
nominee of DTC. The depositary arrangements for such junior subordinated
debentures are expected to be substantially similar to those in effect for
the
trust preferred securities. For a description of DTC and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemptions and other notices and other matters, see “Description of Trust
Preferred Securities—Form, Denomination, Book-Entry Procedures and
Transfer” and “—Depositary Procedures.”
Payment
of principal of (and premium, if any) and any interest on junior subordinated
debentures will be made at the office of the Debenture Trustee in The City
of
New York or at the office of such paying agent or Paying Agents as AGL Capital
may designate from time to time, except that at the option of AGL Capital
payment of any interest may be made except in the case of junior subordinated
debentures in global form, by:
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check
mailed to the address of the person entitled thereto as such address
shall
appear in the register for junior subordinated debentures
or
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by
transfer to an account maintained by the person entitled thereto
as
specified in such register, provided that proper transfer instructions
have been received by the relevant record
date.
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Payment
of any interest on any junior subordinated debenture will be made to the person
in whose name such junior subordinated debenture is registered at the close
of
business on the record date for such interest, except in the case of defaulted
interest. AGL Capital may at any time designate additional paying agents or
rescind the designation of any paying agent; however AGL Capital will at all
times be required to maintain a paying agent in each place of payment for the
junior subordinated debentures.
Any
moneys deposited with the Debenture Trustee or any paying agent, or then held
by
AGL Capital in trust, for the payment of the principal of (and premium, if
any)
or interest on any junior subordinated debenture and remaining unclaimed for
two
years after such principal (and premium, if any) or interest has become due
and
payable shall, at the request of AGL Capital, be repaid to AGL Capital and
the
holder of such junior subordinated debenture shall thereafter look, as a general
unsecured creditor, only to AGL Capital for payment thereof.
So
long
as no event of default has occurred and is continuing, AGL Capital will have
the
right under the indenture at any time during the term of the junior subordinated
debentures to defer the payment of interest at any time or from time to time
for
a period not exceeding 20 consecutive quarters with respect to each extended
interest payment period, provided that no extended interest payment period
may
extend beyond the stated maturity date. At the end of such extended interest
payment period, AGL Capital must pay all interest then accrued and unpaid
(together with interest thereon at a specified annual percentage rate,
compounded quarterly, to the extent permitted by applicable law).
During
any such extended interest payment period, neither AGL Resources nor AGL Capital
may:
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declare
or pay any dividends or distributions on, or redeem, purchase, acquire,
or
make a liquidation payment with respect to, any of its capital stock
(which includes common and preferred stock);
or
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make
any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities that rank equal in
priority with or junior in right of payment to, with respect to AGL
Capital, the junior subordinated debentures or with respect to AGL
Resources, debt that is subordinated to its senior indebtedness;
or
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make
any guarantee payments with respect to any guarantee of the debt
securities of any of their respective subsidiaries if such guarantee
ranks
equal in priority with or junior in right of payment to, with respect
to
AGL Capital, the junior subordinated debentures or with respect to
AGL
Resources, debt that is subordinated to its senior indebtedness (other
than (a) dividends or distributions in shares of, or options, warrants
or
rights to subscribe for or purchase shares of, common stock, (b)
any
declaration of a dividend in connection with the implementation of
a
stockholders’ rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the trust preferred guarantee and the
junior
subordinated debenture guarantee, (d) the purchase of fractional
shares
resulting from a reclassification of capital stock or the exchange
or
conversion of one class or series of capital stock for another class
or
series of capital stock and (e) the purchase of fractional interests
in
shares of capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged).
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Prior
to
the termination of any such extended interest payment period, AGL Capital may
further extend such extended interest payment period, provided that such
extension does not cause such extended interest payment period to exceed 20
consecutive periods including the first quarter during such extended interest
payment period, or to extend beyond the stated maturity date. Upon the
termination of any such extended interest payment period and the payment of
all
amounts then due on any interest payment date, AGL Capital may elect to begin
a
new extended interest payment period, subject to the above requirements. No
interest shall be due and payable during an extended interest payment period,
except at the end thereof, but AGL Capital may prepay at any time all or any
portion of the interest accrued during an extended interest payment period.
AGL
Capital must give the property trustee, the administrative trustees and the
debenture trustee notice of its election of any extended interest payment period
(or an extension thereof) at least five business days prior to the earlier
of:
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the
date the distributions on the trust preferred securities would have
been
payable except for the election to begin or extend such extended
interest
payment period or
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the
date the administrative trustees are required to give notice to any
securities exchange or other quotation system or to holders of trust
preferred securities of the record date or the date such distributions
are
payable, but in any event not less than one business day prior to
such
record date. The debenture trustee shall give notice of AGL Capital’s
election to begin or extend a new extended interest payment period
to the
holders of the trust preferred securities. There is no limitation
on the
number of times that AGL Capital may elect to begin an extended interest
payment period.
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The
junior subordinated debentures will be prepayable, in whole or in part, at
the
option of AGL Resources on or after the initial optional redemption date at
a
redemption price, which we refer to as the optional redemption price, equal
to
the percentage of the outstanding principal amount of the junior subordinated
debentures plus accrued and unpaid interest thereon to the date of
prepayment.
If
a tax
event or an Investment Company Act event shall occur and be continuing, AGL
Capital may, at its option, redeem the junior subordinated debentures in whole
(but not in part) and thereby cause the mandatory redemption of the trust
preferred securities and the common securities in whole (but not in part) at
any
time and within 90 days following the occurrence of such tax event or Investment
Company Act Event at the special event redemption price. Following a tax event
or an Investment Company Act event, AGL Capital shall take such action as is
necessary to promptly determine the special event redemption price. The special
event redemption price shall be paid prior to 12:00 noon, New York time, on
the
date of such redemption or such earlier time as AGL Capital determines, provided
that AGL Capital shall deposit with the trustee an amount sufficient to pay
the
special event redemption price by 10:00 a.m., New York time, on the date such
special event prepayment price is to be paid. The Company shall provide the
debenture trustee with written notice of the special event redemption price
promptly after the calculation thereof.
A
“tax
event” means the receipt by AGL Capital and the trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to,
or change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying
such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced or made effective on or after the issue
date, there is more than an insubstantial risk that:
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the
trust is, or will be within 90 days of the date of such opinion,
subject
to United States federal income tax with respect to all or part of
the
income received or accrued on the junior subordinated debentures
or the
trust preferred securities;
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interest
payable by AGL Capital on the junior subordinated debentures or the
trust
preferred securities is not, or within 90 days of the date of such
opinion
will not be, deductible by AGL Capital, in whole or in part, for
United
States federal income tax purposes;
or
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the
trust is, or will be within 90 days of the date of such opinion,
subject
to more than a de minimis amount of other taxes, duties or other
governmental charges.
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An
“Investment Company Act event” means the receipt by AGL Capital and the trust of
an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the trust is or will be considered an “investment
company” that is required to be registered under the Investment Company Act,
which change becomes effective on or after the issue date of the trust preferred
securities.
Notice
of
any prepayment will be mailed at least 30 days but not more than 60 days before
the redemption date to each holder of junior subordinated debentures to be
prepaid at its registered address. Unless AGL Capital defaults in payment of
the
prepayment price, on and after the prepayment date interest ceases to accrue
on
such junior subordinated debentures called for prepayment.
Neither
AGL Capital nor AGL Resources may (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of its respective capital stock (which includes common
and
preferred stock) or (ii) make any payment of principal, interest or premium,
if
any, on or repay or repurchase or redeem any of its debt securities that rank
equal in priority with or junior in right of payment to, with respect to AGL
Capital, the junior subordinated debentures or with respect to AGL Resources,
debt that is subordinated to its senior indebtedness or (iii) make any
guarantees with respect to the debt securities of any of their respective
subsidiaries if such guarantees rank equal in priority or junior in right of
payment to, with respect to AGL Capital, the junior subordinated debentures
or
with respect to AGL Resources, debt that is subordinated to its senior
indebtedness (other than (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, common
stock, (b) any declaration of a dividend in connection with the implementation
of a stockholder’s rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the trust preferred guarantee and the junior subordinated
debenture guarantee, (d) the purchase of fractional shares resulting from a
reclassification capital stock or the exchange or conversion of one class or
series of capital stock for another class or series capital stock and (e) the
purchase of fractional interests in shares of capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged), if at such time (1) there shall have occurred and
be
continuing a trust agreement event of default, (2) there shall have occurred
and
be continuing a debenture event of default, (3) there shall have occurred and
be
continuing a payment default under the trust agreement or the indenture, (4)
if
such junior subordinated debentures are held by the trust, AGL Capital shall
be
in default with respect to its payment of any obligations under the guarantee
or
(5) AGL Capital shall have given notice of its election of an extended interest
payment period as provided in the Indenture and shall not have rescinded such
notice, and such extended interest payment period, or any extension thereof,
shall have commenced.
From
time
to time AGL Capital and the debenture trustee may, without the consent of the
holders of junior subordinated debentures, amend, waive or supplement the
indenture for specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies (provided that any such action does
not
materially adversely affect the interest of the holders of junior subordinated
debentures) and qualifying, or maintaining the qualification of, the indenture
under the Trust Indenture Act. The indenture contains provisions permitting
AGL
Capital and the debenture trustee, with the consent of the holders of a majority
in principal amount of junior subordinated debentures, to modify the indenture
in a manner affecting the rights of the holders of junior subordinated
debentures; provided, that no such modification may, without the consent of
the
holders of each outstanding junior subordinated debenture so
affected:
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extend
the stated maturity, or reduce the principal amount of the junior
subordinated debentures or reduce the rate or extend the time of
payment
of interest thereon, or reduce any amount payable on redemption,
or impair
or affect the right of any holder of junior subordinated debentures
to
institute suit for payment; or
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reduce
the percentage of principal amount of junior subordinated debentures,
the
holders of which are required to consent to any such modification
of the
indenture.
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The
indenture provides that any one or more of the following described events with
respect to the junior subordinated debentures constitutes a debenture event
of
default (whatever the reason for such debenture event of default and whether
it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
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failure
for 30 days to pay any interest on the junior subordinated debentures
or
any other debentures, when due (subject to the deferral of any due
date in
the case of an extended interest payment period);
or
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failure
to pay any principal or premium, if any, on the junior subordinated
debentures or any other debentures within three business days of
when due
whether at maturity, upon redemption, by declaration of acceleration
of
maturity or otherwise; or
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failure
to observe or perform in any material respect certain other covenants
or
warranties contained in the indenture for 90 days after written notice
to
AGL Capital from the debenture trustee or the holders of at least
25% in
aggregate outstanding principal amount of junior subordinated debentures;
or
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certain
events of bankruptcy, insolvency or reorganization of AGL
Capital.
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The
debenture trustee or the holders of not less than 33% in aggregate outstanding
principal amount of the junior subordinated debentures may declare the principal
due and payable immediately upon a debenture event of default. The holders
of a
majority in aggregate outstanding principal amount of the junior subordinated
debentures may annul such declaration and waive the default if the default
(other than the non-payment of the principal of the junior subordinated
debentures which has become due solely by such acceleration) has been cured,
waived or otherwise remedied and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee.
The
holders of a majority in aggregate outstanding principal amount of the junior
subordinated debentures affected thereby may, on behalf of the holders of all
the junior subordinated debentures, waive any past default, except a default
in
the payment of principal (or premium, if any) on or interest (unless such
default has been cured and a sum sufficient to pay all matured installments
of
interest (and premium, if any) and principal due otherwise than by acceleration
has been deposited with the debenture trustee) or a default in respect of a
covenant or provision which under the indenture cannot be modified or amended
without the consent of the holder of each outstanding junior subordinated
debenture.
If
a
debenture event of default shall have occurred and be continuing and shall
be
attributable to the failure of AGL Capital to pay interest (or premium, if
any)
on principal of the junior subordinated debentures on the due date, AGL
Resources will guarantee on a junior subordinated basis the payment of the
principal (and premium, if any) and interest on the junior subordinated
debentures, except that no payment of interest will be made under the debenture
guarantee for any period during which AGL Capital has exercised its right to
defer interest payments on the junior subordinated debentures.
The
indenture provides that AGL Capital shall not consolidate with or merge into
any
other person or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any person, and no person shall
consolidate with or merge into AGL Capital or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to AGL
Capital, unless:
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in
case AGL Capital consolidates with or merges into another person
or
conveys or transfers its properties and assets substantially as an
entirety to any person, the successor person is organized under the
laws
of the United States or any State or the District of Columbia, and
such
successor person expressly assumes AGL Capital’s obligations on the junior
subordinated debentures;
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immediately
after giving effect thereto, no debenture event of default, and no
event
which, after notice or lapse of time or both, would become a debenture
event of default, shall have occurred and be continuing;
and
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certain
other conditions as prescribed in the indenture are
met.
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The
general provisions of the indenture do not afford holders of the junior
subordinated debentures protection in the event of a highly leveraged or other
transaction involving AGL Capital’s that may adversely affect holders of the
junior subordinated debentures. The term “substantially as an entirety” in
reference to the conveyance, transfer or lease of our properties and assets
has
not been interpreted under governing law to represent a specific quantitative
test as applied to us and, as a consequence, holders may not be able to
determine when we have entered into a transaction that conveys, transfers or
leases our properties and assets substantially as an entirety. As a result
of
this uncertainty, it may be difficult for the holders to determine whether
such
conveyance, transfer or lease has occurred and whether to declare an event
of
default. Further, there could be a disagreement between the holders and us
over
whether such a conveyance, transfer or lease of our properties and assets
reaches the threshold of “substantially as an entirety.” To the extent that the
holders elect to exercise their rights under the Indenture resulting from what
the holders deem to be a conveyance, transfer or lease of our properties and
assets substantially as an entirety and we contest such an election, there
can
be no assurances as to how a court would interpret the meaning of substantially
as an entirety.
The
indenture provides that when, among other things, all junior subordinated
debentures not previously delivered to the Debenture Trustee for
cancellation:
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have
become due and payable or
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will
become due and payable at maturity within one year, and AGL Capital
deposits or causes to be deposited with the Debenture Trustee funds,
in
trust, for the purpose and in an amount sufficient to pay and discharge
the entire indebtedness on the junior subordinated debentures not
previously delivered to the Debenture Trustee for cancellation, for
the
principal (and premium, if any) and interest to the date of the deposit
or
to the stated maturity date, as the case may be, then the indenture
will
cease to be of further effect (except as to AGL Capital’s obligations to
pay all other sums due pursuant to the indenture and to provide the
officers’ certificates and opinions of counsel described therein), and AGL
Capital will be deemed to have satisfied and discharged the
indenture.
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The
indenture provides that the junior subordinated debentures issued thereunder
will be subordinate and junior in right of payment to all senior indebtedness
of
AGL Capital. No payment of principal (including redemption payments), premium,
if any, or interest on the junior subordinated debentures may be made at any
time when:
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any
senior indebtedness of AGL Capital is not paid when
due;
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any
applicable grace period with respect to such default has ended and
such
default has not been cured or waived or ceased to exist;
or
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the
maturity of any senior indebtedness of AGL Capital has been accelerated
because of a default.
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Upon
any
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, assignment for the benefit of creditors, marshaling of
assets or any bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with any insolvency or bankruptcy proceeding of AGL Capital,
all
senior indebtedness of AGL Capital must be paid in full before the holders
of
the junior subordinated debentures are entitled to receive or retain any payment
in respect thereof.
In
the
event of the acceleration of the maturity of junior subordinated debentures,
the
holders of all senior indebtedness of AGL Capital outstanding at the time of
such acceleration will first be entitled to receive payment in full before
the
holders of junior subordinated debentures will be entitled to receive or retain
any payment in respect of the junior subordinated debentures.
Senior
indebtedness shall mean with respect to an obligor, (i) the principal, premium,
if any, and interest in respect of (A) indebtedness of such obligor for money
borrowed, and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by such obligor, (ii) all capital lease
obligations of such obligor, (iii) all obligations of such obligor issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of such obligor and all obligations of such obligor under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such obligor for the
reimbursement on any letter of credit, banker’s acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (v) above of other persons secured by any lien on
any
property or asset of such obligor (whether or not such obligation is assumed
by
such obligor), except for (1) any such indebtedness that is by its terms
subordinated to or ranks equal in priority with the Securities, and (2) all
debt
securities or guarantees in respect of those debt securities, issued to any
other trust, or a trustee of such trust, partnership or other entity affiliated
with AGL Capital that is a financing vehicle of AGL Capital in connection with
the issuance by such financing entity of equity securities or other securities
guaranteed by the Company pursuant to an instrument that ranks equal in priority
with or junior in right of payment to the trust preferred
guarantee.
AGL
Resources is an energy services holding company with no independent business
operations or source of income of its own. It conducts substantially
all of its operations through its subsidiaries and, as a result, AGL Resources
depends on the earnings and cash flow of and dividends or distributions from
its
subsidiaries to provide the funds necessary to meet its debt and contractual
obligations. Furthermore, a substantial portion of AGL Resources’
consolidated assets, earnings and cash flow is derived from the operation of
its
regulated utility subsidiaries, whose legal authority to pay dividends or make
other distributions to AGL Resources is subject to regulation. AGL
Capital is a wholly-owned financing subsidiary of AGL Resources. The
right of AGL Resources and AGL Capital to participate in any distribution of
assets of any subsidiary, upon such subsidiary’s liquidation or reorganization
or otherwise, is subject to the prior claims of creditors of the
subsidiary.
The
indenture places no limitation on the amount of additional senior indebtedness
that may be incurred by AGL Capital. AGL Capital expects from time to
time to incur additional indebtedness constituting senior
indebtedness.
The
indenture and the junior subordinated debentures will be governed by and
construed in accordance with the laws of the State of New York without regarding
to principles of conflicts of law thereof.
The
indenture trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the indenture trustee is under no
obligation to exercise any of the powers vested in it by the indenture at the
request of any holder of junior subordinated debentures, unless offered
reasonably satisfactory to it indemnity by such holder against the costs,
expenses and liabilities which might be incurred thereby. The indenture trustee
is not required to expend or risk its own funds or otherwise incur personal
financial liability in the performance of its duties if the Indenture Trustee
reasonably believes that repayment or adequate indemnity is not reasonably
assured to it.
AGL
Capital has agreed, pursuant to the indenture, for so long as trust securities
remain outstanding:
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to
maintain directly or indirectly 100% ownership of the common securities
of
the trust ( provided that certain successors which are permitted
pursuant
to the indenture may succeed to AGL Capital’s ownership of the common
securities);
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not
to voluntarily terminate, wind up or liquidate the trust, except
in
connection with a distribution of junior subordinated debentures
to the
holders of the trust preferred securities in liquidation of the trust;
and
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to
use its reasonable efforts, consistent with the terms and provisions
of
the trust agreement to cause the trust to remain classified as (a)
a
business trust, except in connection with certain mergers, consolidations
or amalgamations permitted by the trust agreement, and (b) a grantor
trust
and not as an association taxable as a corporation for United States
federal income tax purposes.
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The
trust
preferred guarantee will be executed and delivered by AGL Resources concurrently
with the issuance by the trust of the trust preferred securities for the benefit
of the holders of the trust preferred securities. The Bank of New York Trust
Company, N.A. will act as indenture trustee under the trust preferred
guarantee. The trust preferred guarantee will be qualified under the
Trust Indenture Act. The following description is a summary of the
material provisions of the trust preferred guarantee. The trust preferred
guarantee trustee will hold the trust preferred guarantee for the benefit of
the
holders of the trust preferred securities.
AGL
Resources will irrevocably agree to pay in full on a subordinated basis, to
the
extent set forth herein, the trust preferred guarantee payments (as defined
below) to the holders of the trust preferred securities, as and when due,
regardless of any defense, right of set-off or counterclaim that the trust
may
have or assert other than the defense of payment. The following payments with
respect to the trust preferred securities, to the extent not paid by or on
behalf of the trust, will be subject to the trust preferred
guarantee:
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any
accumulated and unpaid distributions required to be paid on trust
preferred securities, to the extent that the trust has funds on hand
legally available therefor at such
time;
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the
applicable redemption price with respect to trust preferred securities
called for redemption, to the extent that the trust has funds on
hand
legally available therefor at such time;
or
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upon
a voluntary or involuntary termination and liquidation of the trust,
the
lesser of (a) the liquidation distribution, to the extent that the
trust
has funds on hand legally available therefor, and (b) the amount
of assets
of the trust remaining available for distribution to holders of trust
preferred securities. AGL Resources’ obligation to make a trust preferred
guarantee payment may be satisfied by direct payment of the required
amounts by AGL Resources to the holders of the trust preferred securities
or by causing the trust to pay such amounts to such
holders.
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The
trust
preferred guarantee will rank subordinate and junior in right of payment to
all
senior indebtedness of AGL Resources to the extent provided therein. See
“—Status of the Trust Preferred Guarantee.” Because AGL
Resources is a holding company, the right of AGL Resources to participate in
any
distribution of assets of any subsidiary upon such subsidiary’s liquidation or
reorganization or otherwise, is subject to the prior claims of creditors of
that
subsidiary, except to the extent AGL Resources may itself be recognized as
a
creditor of that subsidiary. Accordingly, AGL Resources’ obligations under the
trust preferred guarantee will be effectively subordinated to all existing
and
future liabilities of AGL Resources’ subsidiaries, and claimants should look
only to the assets of AGL Resources for payments thereunder. See
“Description of the Junior Subordinated
Debentures—General.” The trust preferred guarantee does not
limit the incurrence or issuance of other secured or unsecured debt of AGL
Resources, including senior indebtedness, whether under the indenture, any
other
indenture that AGL Resources may enter into in the future or
otherwise.
AGL
Resources will, through the trust preferred guarantee, fully, irrevocably and
unconditionally guarantee all of the trust’s obligations under the trust
preferred securities but the trust preferred guarantee will not apply to any
payment of distributions except to the extent the trust has funds legally
available therefor. If AGL Capital does not make interest payments on the junior
subordinated debentures held by the trust, the trust will not pay distributions
on the trust preferred securities and will not have funds legally available
therefor.
Generally,
the trust preferred guarantee will constitute an unsecured obligation of AGL
Resources and will rank subordinate and junior in right of payment to all of
its
senior indebtedness in the same manner as junior subordinated
debentures.
The
trust
preferred guarantee will rank equal in priority with all other guarantees issued
by AGL Resources. The trust preferred guarantee will constitute a guarantee
of
payment and not of collection (i.e., the guaranteed party may institute a legal
proceeding directly against AGL Resources to enforce its rights under the trust
preferred guarantee without first instituting a legal proceeding against any
other person or entity). The trust preferred guarantee will be held for the
benefit of the holders of the trust preferred securities. The trust preferred
guarantee will not be discharged except by payment of the trust preferred
guarantee payments in full to the extent not paid by the trust or upon
distribution to the holders of the trust preferred securities of the junior
subordinated debentures. The trust preferred guarantee does not place a
limitation on the amount of additional senior indebtedness that may be incurred
by AGL Resources. AGL Resources expects from time to time to incur additional
indebtedness constituting senior indebtedness.
Except
with respect to any changes that do not materially adversely affect the rights
of holders of the trust preferred securities (in which case no vote will be
required), the trust preferred guarantee may not be amended without the prior
approval of the holders of a majority of the liquidation amount of such
outstanding trust preferred securities. The manner of obtaining any such
approval will be as set forth under “Description of Trust Preferred
Securities—Voting Rights; Amendment of the Trust Agreement.” All
guarantees and agreements contained in the trust preferred guarantee agreement
shall bind the successors, assigns, receivers, trustees and representatives
of
AGL Resources and shall inure to the benefit of the holders of the trust
preferred securities then outstanding.
An
event
of default under the trust preferred guarantee will occur upon the failure
of
AGL Resources to perform any of its payment obligations
thereunder. The holders of a majority in liquidation amount of the
trust preferred securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trust
preferred guarantee trustee in respect of the trust preferred guarantee or
to
direct the exercise of any trust or power conferred upon the trust preferred
guarantee trustee under the trust preferred guarantee. The Trust Preferred
Securities Guarantee Trustee may decline to follow any such direction if it
shall determine that the action so directed would be unjustly prejudicial to
the
holders not taking part in such direction or that the action or proceeding
so
directed may not lawfully be taken or would involve the Trust Preferred
Securities Guarantee Trustee in personal liability.
Any
holder of the trust preferred securities may institute a legal proceeding
directly against AGL Resources to enforce its rights under the trust preferred
guarantee without first instituting a legal proceeding against the trust, the
Trust Preferred Guarantee Trustee or any other person or entity.
AGL
Resources, as guarantor, will be required to file annually with the Trust
Preferred Guarantee Trustee a certificate as to whether or not AGL Resources
is
in compliance with all the conditions and covenants applicable to it under
the
trust preferred guarantee.
The
Trust
Preferred Guarantee Trustee’s duties, other than during the occurrence and
continuance of an event of default by AGL Resources in performance of the trust
preferred guarantee, shall be to maintain a list of holders of the trust
preferred securities and provide the list to other holders upon a request made
in compliance with Section 312(b) of the Trust Indenture Act and to provide
to
the holders within 60 days after May 15 of each year a brief report specifying
events that occurred during the last 12 months in accordance with Section 313
of
the Trust Indenture Act. The Trust Preferred Guarantee Trustee’s duties after
default with respect to the trust preferred guarantee shall be to exercise
the
same degree of care and skill as a prudent person would exercise or use in
the
conduct of his or her own affairs. Subject to this provision, the Trust
Preferred Guarantee Trustee will be under no obligation to exercise any of
the
powers vested in it by the trust preferred guarantee at the request of any
holder of the trust preferred securities unless it is offered indemnity
reasonably satisfactory to it against the costs, expenses and liabilities that
might be incurred thereby.
The
trust
preferred guarantee will terminate and be of no further force and effect upon
full payment of the applicable redemption price of the trust preferred
securities, upon full payment of the liquidation amount payable upon liquidation
of the trust, or upon distribution of junior subordinated debentures to the
holders of the trust preferred securities, or upon exchange of all trust
preferred securities for other trust preferred securities in the Exchange Offer.
The trust preferred guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the trust preferred
securities must restore payment of any sums paid under the trust preferred
securities or the trust preferred guarantee.
The
trust
preferred guarantee will be governed by and construed in accordance with the
laws of the State of New York without giving effect to principles of conflicts
of law thereof.
The
following description is a summary of the material provisions of the debenture
guarantee.
AGL
Resources will guarantee on a junior subordinated basis the payment of principal
(and premium, if any) and interest on the junior subordinated debentures, except
that no payment of interest will be made under the debenture guarantee for
any
period during which AGL Capital has exercised its right to defer interest
payments on the junior subordinated debentures.
The
debenture guarantee will rank subordinate and junior in right of payment to
all
senior indebtedness of AGL Resources to the extent provided in the indenture.
The right of AGL Resources to participate in any distribution of assets of
any
subsidiary upon such subsidiary’s liquidation or reorganization or otherwise, is
subject to the prior claims of creditors of that subsidiary, except to the
extent AGL Resources may itself be recognized as a creditor of that subsidiary.
Accordingly, AGL Resources’ obligations under the debenture guarantee will be
effectively subordinated to all existing and future liabilities of AGL
Resources’ subsidiaries, and claimants should look only to the assets of AGL
Resources for payments thereunder. The debenture guarantee does not limit the
incurrence or issuance of other secured or unsecured debt of AGL Resources,
including senior indebtedness, whether under the indenture, any other indenture
that AGL Resources may enter into in the future or otherwise.
PREFERRED
GUARANTEE AND THE DEBENTURE GUARANTEE
Payments
of distributions and other amounts due on the trust preferred securities (to
the
extent the trust has funds on hand legally available for the payment of such
distributions) will be irrevocably guaranteed by AGL Resources as and to the
extent set forth under “Description of Trust Preferred
Guarantee.” Taken together, AGL Resources’ and AGL Capital’s
obligations under the junior subordinated debentures, the indenture, the trust
agreement, the trust preferred guarantee and the debenture guarantee will
provide, in the aggregate, a full, irrevocable and unconditional guarantee
of
payments of distributions and other amounts due on the trust preferred
securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that
has the effect of providing a full, irrevocable and unconditional guarantee
of
the trust’s obligations under the trust preferred securities. If and
to the extent that AGL Capital does not make the required payments on the junior
subordinated debentures, the trust will not have sufficient funds to make the
related payments, including distributions, on the trust preferred
securities. The trust preferred guarantee will not cover any such
payment when the trust does not have sufficient funds on hand legally available
therefor. However, through the debenture guarantee, AGL Resources
will guarantee on a junior subordinated basis the due and punctual payment
of
the principal (and premium, if any) and interest on the junior subordinated
debentures. The obligations of AGL Resources under the trust
preferred guarantee and debenture guarantee will be subordinate and junior
in
right of payment to all senior indebtedness.
As
long
as payments of interest and other payments are made when due on the junior
subordinated debentures, such payments will be sufficient to cover distributions
and other payments due on the trust preferred securities, primarily
because:
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the
aggregate principal amount or prepayment price of the junior subordinated
debentures will be equal to the sum of the liquidation amount or
redemption price, as applicable, of the trust preferred securities
and
common securities;
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the
interest rate and interest and other payment dates on the junior
subordinated debentures will match the interest rate and interest
and
other payment dates for the trust
securities;
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AGL
Capital shall pay for all and any costs, expenses and liabilities
of the
trust except the trust’s obligations to holders of trust preferred
securities under such trust preferred securities;
and
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the
trust agreement will provide that the trust is not authorized to
engage in
any activity that is not consistent with the limited purposes
thereof.
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A
holder
of any trust preferred security may institute a legal proceeding directly
against AGL Resources to enforce its rights under the guarantee without first
instituting a legal proceeding against the guarantee trustee, the trust or
any
other person or entity. A default or event of default under any senior
indebtedness would not constitute a default or event of default under the trust
agreement. However, in the event of payment defaults under, or acceleration
of,
senior indebtedness, the subordination provisions of the indenture will provide
that no payments may be made in respect of the junior subordinated debentures
until such senior indebtedness has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on junior
subordinated debentures would constitute an event of default under the trust
agreement.
If
a
Trust Enforcement Event occurs, the holders of trust preferred securities would
rely on the enforcement by the Property Trustee of its rights as registered
holder of the junior subordinated debentures against AGL Capital. In
addition, generally, the holders of a majority in liquidation amount of the
trust preferred securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or to direct the exercise of any trust or power conferred upon the
Property Trustee under the trust agreement, including the right to direct the
Property Trustee to exercise the remedies available to it as the holder of
the
junior subordinated debentures. The indenture provides that the
Indenture Trustee will give holders of junior subordinated debentures notice
of
all events of default within 90 days after their occurrence.
If
the
Property Trustee fails to enforce its rights under the junior subordinated
debentures in respect of an event of default under the Indenture after a holder
of trust preferred securities has made a written request, such holder may,
to
the extent permitted by applicable law, institute a legal proceeding against
us
to enforce the Property Trustee’s rights under the junior subordinated
debentures. In addition, if AGL Capital fails to pay interest or
principal on the junior subordinated debentures, a holder of trust preferred
securities may institute a proceeding directly against AGL Capital for
enforcement of payment to that holder of the principal of or interest on junior
subordinated debentures having a principal amount equal to the total liquidation
amount of that holder’s trust preferred securities (which we refer to as a
“direct action”). In connection with such a direct action, we will
have the right to set off any payment made to such holder by AGL
Capital.
The
trust
preferred securities will represent preferred undivided beneficial interests
in
the assets of the trust, and the trust exists for the sole purpose of issuing
and selling the trust preferred securities, using the proceeds from the sale
of
the trust preferred securities to acquire the junior subordinated debentures
and
engaging in only those other activities necessary, advisable or incidental
thereto.
Unless
the junior subordinated debentures are distributed to holders of the trust
preferred securities, upon any voluntary or involuntary termination and
liquidation of the trust, the holders of the trust preferred securities will
be
entitled to receive, out of assets held by the trust, the liquidation
distribution in cash. See “Description of Trust Preferred
Securities—Liquidation of the Trust and Distribution of Junior Subordinated
Debentures.” Upon any voluntary or involuntary liquidation or bankruptcy of
AGL Capital, the Property Trustee, as holder of the junior subordinated
debentures, would be a subordinated creditor of AGL Capital, subordinated in
right of payment to all senior indebtedness as set forth in the indenture,
but
entitled to receive payment in full of principal (and premium, if any) and
interest, before any stockholders of AGL Capital receive payments or
distributions.
Set
forth
below is a summary discussion of the material terms of AGL Resources’ capital
stock. We encourage you to read our amended and restated articles of
incorporation and our bylaws that we have previously filed with the
SEC. See “Incorporation of Certain Documents by
Reference.” The prospectus supplement will describe the specific
terms of the common stock or series of the preferred stock offered through
that
prospectus supplement and any general terms outlined in this section that will
not apply to the common stock or the series of preferred stock.
As
of
August 17, 2007, our authorized capital stock was 770,000,000
shares. Those shares consisted of: (a) 10,000,000 shares of preferred
stock, none of which are outstanding; (b) 10,000,000 shares of Class A junior
participating preferred stock, none of which are outstanding; and (c)
750,000,000 shares of common stock, of which approximately 77,503,662 shares
were outstanding as of August 17, 2007. No holder of shares of common
stock has any preemptive rights.
Listing
AGL
Resources’ outstanding shares of common stock are listed on the New York Stock
Exchange (“NYSE”) under the symbol “ATG.” Any additional common stock we issue
will also be listed on the NYSE.
Dividends
Common
shareholders may receive dividends when declared by the Board of Directors.
Dividends may be paid in cash, stock or other form. In certain cases, common
shareholders may not receive dividends until we have satisfied our obligations
under certain financing agreements and satisfied our obligations to any
preferred shareholders. Our ability to pay dividends is limited by
Georgia law. Under Georgia law, dividends are limited to our legally
available assets and subject to the prior payment of dividends on any
outstanding shares of preferred stock. Under Georgia law, assets are
not legally available for paying dividends if (1) we would not be able to pay
our debts as they become due in the usual course of business or (2) our total
assets would be less than our total liabilities plus, subject to some
exceptions, any amounts necessary to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are superior to those
of
shareholders receiving the dividends. Our ability to pay dividends
may also be limited in the event AGL Capital opts to defer the payment of
interest on the Junior Subordinated Debentures. See “Description
of Junior Subordinated Debentures—Option to Extend Interest Payment
Date.”
Fully
Paid
All
outstanding shares of common stock are fully paid and non-assessable. Any
additional common stock we issue will also be fully paid and
non-assessable.
Voting
Rights
Each
share of common stock is entitled to one vote in the election of directors
and
other matters. Common shareholders are not entitled to cumulative voting
rights.
Other
Rights
We
will
notify common shareholders of any shareholders’ meeting according to applicable
law. If we liquidate, dissolve or wind up our business, either voluntarily
or
not, common shareholders will share equally in the assets remaining after we
pay
our creditors and preferred shareholders.
Transfer
Agents and Registrars
Computershare
Investor Services serves as our transfer agent and registrar. You may
contact Computershare Investor Services at 250 Royall Street, Canton, MA 02021
(telephone (800) 633-4236).
General
AGL
Resources is authorized to issue up to 10,000,000 shares of preferred
stock. As of the date of this prospectus, no preferred stock is
outstanding.
Preferred
Stock
Our
restated articles of incorporation authorize our board of directors to provide
for the issuance of preferred stock in one or more series, without shareholder
action. Our board of directors can determine the rights, preferences
and limitations of each series. Prior to the issuance of each series
of preferred stock, our board of directors will adopt resolutions creating
and
designating the series as a series of preferred stock. Our board of
directors has the authority to determine or fix the following terms with respect
to shares of any series of preferred stock:
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the
dividend rate, the times of payment and the date from which dividends
will
accumulate, if dividends are to be
cumulative,
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whether
and upon what terms the shares will be
redeemable,
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whether
and upon what terms the shares will have a sinking
fund,
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whether
and upon what terms the shares will be convertible or
exchangeable,
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whether
the shares will have voting rights and the terms
thereof,
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the
rights of the holders upon liquidation, dissolution or winding-up,
and
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any
other relative rights, powers and limitations or
restrictions.
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These
terms will be described in the prospectus supplement for any series of preferred
stock that we offer. In addition, you should read the prospectus
supplement relating to the particular series of the preferred stock offered
thereby for specific terms, including:
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the
title of the series of preferred stock and the number of shares
offered,
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the
initial public offering price at which we will issue the preferred
stock,
and
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any
additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitation and
restrictions.
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When
we
issue the preferred stock, the shares will be fully paid and
nonassessable. This means that the full purchase price for the
outstanding preferred stock will have been paid and the holders of such
preferred stock will not be assessed any additional monies for such preferred
stock. Unless the applicable prospectus supplement specifies
otherwise:
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each
series of preferred stock will rank senior to our common stock and
equally
in all respects with the outstanding shares of each other series
of
preferred stock, and
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the
preferred stock will have no preemptive rights to subscribe for any
additional securities which we may issue in the future. This means
that
the holders of preferred stock will have no right, as holders of
preferred
stock, to buy any portion of those issued
securities.
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Georgia
law provides that no shareholder, including holders of preferred stock, shall
be
personally liable for the acts and obligations of a Georgia
corporation. This means that with respect to AGL Resources, the funds
and property of AGL Resources will be the only recourse for these acts or
obligations.
Our
articles and bylaws include a number of provisions that may have the effect
of
encouraging persons considering unsolicited tender offers or other takeover
proposals to negotiate with our board of directors rather than pursue
non-negotiated takeover attempts. The following is a summary
description of these provisions, and we refer you to our amended and restated
articles and bylaws for more information since their terms affect your rights
as
a shareholder. The anti-takeover provisions include:
Classification
of the Board
Our
board
of directors is divided into three classes, each of which consists, as nearly
as
may be possible, of one-third of the total number of directors constituting
the
entire board. The board of directors consists of fourteen members,
including thirteen non-employee directors. Each class of directors
serves a three-year term. At each annual meeting of our shareholders,
successors to the class of directors whose term expires at the annual meeting
are elected for three-year terms. Our bylaws prohibit cumulative
voting. In general, in the absence of cumulative voting, one or more
persons who hold a majority of our outstanding shares can elect all of the
directors who are subject to election at any meeting of
shareholders.
The
classification of directors could have the effect of making it more difficult
for shareholders, including those holding a majority of the outstanding shares,
to force an immediate change in the composition of our board. Two
shareholder meetings, instead of one, generally will be required to effect
a
change in the control of our board. Our board believes that the
longer time required to elect a majority of a classified board will help to
ensure the continuity and stability of our management and policies since a
majority of the directors at any given time will have had prior experience
as
our directors.
Removal
of Directors
Our
bylaws also provide that our directors may be removed only for cause and upon
the affirmative vote of the holders of a majority of our outstanding
shares.
Business
Combinations with Interested Shareholder
The
Georgia legislature has enacted legislation which generally prohibits a
corporation that has adopted a bylaw electing to be covered thereby, which
we
have done, from engaging in any “business combination” with an “interested
shareholder” for a period of five years from the date such person becomes an
interested shareholder, unless the interested shareholder:
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prior
to becoming an interested shareholder, obtained the approval of our
board
of directors for either the business combination or the transaction
which
resulted in the shareholder becoming an interested
shareholder;
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becomes
the beneficial owner of at least 90% of our outstanding voting stock
in
the same transaction in which the shareholder became an interested
shareholder, excluding for purposes of determining the number of
shares
outstanding those shares owned by officers, directors, subsidiaries
and
certain employee stock plans; or
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subsequent
to the acquisition of 10% or more of our outstanding voting stock,
acquires additional shares resulting in ownership of at least 90%
of our
outstanding voting stock and obtains approval of the business combination
by the holders of a majority of our shares, other than those shares
held
by an interested shareholder, officers, directors, subsidiaries and
certain employee stock plans.
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The
term
“business combination” refers to a merger, consolidation or other specified
corporate transaction. The term “interested shareholder” refers to a 10%
shareholder or an affiliate which was a 10% shareholder at any time within
the
preceding two years.
Our
“business combinations” bylaw may be repealed only by an affirmative vote of
two-thirds of the continuing directors and a majority of the votes entitled
to
be cast by the shareholders, other than interested shareholders, and shall
not
be effective until 18 months after that shareholder vote. The Georgia statute
provides that a Georgia corporation that has repealed such a bylaw may not
thereafter re-adopt that bylaw.
Business
Combinations with Related Persons
Our
articles of incorporation prohibit us from participating in a business
combination with a “related person” unless the affirmative vote or consent of
the holders of at least seventy-five percent (75%) of the outstanding shares
approve such business combination. The voting requirements in the preceding
sentence will not apply and only such affirmative vote as is required by law
and
by any other provision of the articles of incorporation will apply
if:
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certain
valuation, consideration and pricing issues are satisfied and specified
in
our articles of incorporation; or
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if
both of the following conditions have been satisfied: (i) the business
combination has been approved by two-thirds of the continuing directors
and (ii) at the time of such approval, the continuing directors comprised
at least a majority of the board of
directors.
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The
“business combinations with related persons” provisions in our articles of
incorporation may be altered, amended or repealed only by an affirmative vote
of
at least seventy-five percent (75%) of all the shares entitled to be cast by
the
shareholders; provided, however, that if such proposed alteration, amendment
or
repeal is approved by two-thirds of the continuing directors and, at the time
of
such approval, the continuing directors comprise at least a majority of the
board of directors, then such proposed alteration, amendment or repeal shall
require for approval only such affirmative vote as is required by law and by
any
other provision of our articles of incorporation.
The
term
“related person” refers to any person who is the beneficial owner at a specified
time of at least that number of shares of our stock equal to twenty percent
(20%) of all of the outstanding shares, but does not include any one or a group
of more than one continuing director. The term “related person” includes the
affiliates and associates of such related person. The term “continuing
directors” refers to any member of the board of directors who is not a related
person or an affiliate or associate of a related person or of any such affiliate
or associate, or a representative of a related person or of any such affiliate
or associate, and was a director prior to the time a related person became
such,
and any successor to such continuing director who is not an affiliate or
associate of a related person and was recommended by a majority of the
continuing directors then on the board of directors, provided that at the time
of such recommendation, continuing directors comprise a majority of the board.
If there is no related person, all members of the board of directors shall
be
deemed to be “continuing directors.”
Shareholder
Proposals and Director Nominations
Our
shareholders can submit shareholder proposals and nominate candidates for the
board of directors if the shareholders follow the advance notice procedures
described in our bylaws. The notice must include:
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a
brief description of the business desired to be brought before the
annual
meeting and the reasons for conducting such business at the annual
meeting;
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the
name and address, as they appear on our corporate books, of the
shareholder proposing such
business;
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the
class and number of shares of which are beneficially owned by such
shareholder;
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the
dates upon which the shareholder acquired such
shares;
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documentary
support for any claim of beneficial
ownership;
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any
material interest of such shareholder in such
business;
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a
statement in support of the matter and, for proposals sought be included
in our proxy statement, any other information required by Securities
and
Exchange Commission Rule 14a-8; and
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as
to each person whom the shareholder proposes to nominate for election
or
reelection as director, all information relating to such person that
is
required to be disclosed in solicitations of proxies for election
of
directors in an election contest, or is otherwise required, in each
case
pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as
amended (including such person’s written consent to being named in the
proxy statement as a nominee and to serving as a director if elected,
and
evidence satisfactory to us that such nominee has no interests that
would
limit their ability to fulfill their duties of
office).
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In
addition, if the shareholder intends to solicit proxies from our shareholders,
such shareholder shall notify us of this intent in accordance with Securities
and Exchange Commission Rule 14a-4 and/or Rule 14a-8.
In
order
to properly submit a shareholder proposal, the shareholder must submit a notice
to our corporate secretary at least 120 calendar days before the first
anniversary of the date that our proxy statement was released to shareholders
in
connection with the previous year’s annual meeting of shareholders. However, if
no annual meeting of shareholders was held in the previous year or if the date
of the annual meeting of shareholders has been changed by more than 30 calendar
days from the date contemplated at the time of the previous year’s proxy
statement, the notice shall be received by the Secretary at our principal
executive offices not fewer than the later of (i) 150 calendar days prior to
the
date of the contemplated annual meeting or (ii) the date which is 10 calendar
days after the date of the first public announcement or other notification
to
the shareholders of the date of the contemplated annual meeting.
Shareholder
proposals and director nominations that are late or that do not include all
required information may be rejected. This could prevent shareholders from
brining certain matters before an annual or special meeting or making
nominations for directors.
Special
Meetings
Our
articles of incorporation and bylaws require us to hold a special meeting of
shareholders on call of the board of directors or the Executive Committee,
the
Chairman of the board, the President, or, upon delivery to our Secretary of
a
signed and dated written demand for the meeting describing the purpose or
purposes for the meeting, on call of the holders of 100% of the votes entitled
to be cast on any issue proposed to be considered at the proposed special
meeting. Only business within the purpose or purposes described in the notice
of
special meeting may be conducted at a special meeting of the
shareholders.
For
business to be properly brought before a special meeting by a shareholder,
the
shareholder must give timely notice thereof in writing to our Secretary. To
be
timely, a shareholder’s notice must be received by the Secretary at our
principal executive offices at least 120 calendar days prior to the date of
the
special meeting. Such shareholder’s notice to the Secretary shall set forth with
respect to any proposal such shareholder proposes to bring before the special
meeting the information outlined above for shareholder proposals.
Amendment
of Certain Charter Provisions
In
addition to any shareholder vote requirements under Georgia law, our articles
of
incorporation require the approval of not less than two-thirds of all the
outstanding shares entitled to vote to alter, amend or repeal our bylaws, unless
such action has been recommended by the board of directors, in which such case
the approval of not less than a majority of all the outstanding shares entitled
to vote is required. This provision will make it more difficult to dilute the
anti-takeover effects of our bylaws.
AGL
Resources or AGL Capital may issue purchase contracts for the purchase or sale
of debt or equity securities issued by either of them or securities of third
parties, a basket of such securities, an index or indices of such securities
or
any combination of the above as specified in the applicable prospectus
supplement or amendment to the registration statement of which this prospectus
forms a part.
Each
purchase contract will entitle the holder thereof to purchase or sell, and
obligate us to sell or purchase, on specified dates, such securities at a
specified purchase price, which may be based on a formula, all as set forth
in
the applicable prospectus supplement. Only AGL Resources may issue purchase
contracts that contain conversion features. AGL Resources or AGL Capital may,
however, satisfy their obligations, if any, with respect to any purchase
contract by delivering the cash value of such purchase contract or the cash
value of the property otherwise deliverable as set forth in the applicable
prospectus supplement. The applicable prospectus supplement will also specify
the methods by which the holders may purchase or sell such securities and any
acceleration, cancellation or termination provisions or other provisions
relating to the settlement of a purchase contract. The applicable prospectus
supplement will also describe the full and unconditional guarantee by AGL
Resources if the purchase contracts are issued by AGL Capital.
The
purchase contracts may require AGL Resources or AGL Capital to make periodic
payments to the holders thereof or vice versa, which payments may be deferred
to
the extent set forth in the applicable prospectus supplement, and those payments
may be unsecured or prefunded on some basis. The purchase contracts may require
the holders thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement. Alternatively, purchase
contracts may require holders to satisfy their obligations thereunder when
the
purchase contracts are issued.
If
the
purchase contracts are issued by AGL Capital, AGL Resources will fully and
unconditionally guarantee to each holder of purchase contracts and to the
trustee, if any, and its successors the due and punctual payment of the payment
obligations on the purchase contracts. The guarantees apply whether the payment
is due at the maturity date of the purchase contracts, on an interest payment
date, or as a result of acceleration, an offer to purchase or otherwise. The
guarantees include payment of interest on the overdue principal of and interest,
if any, on the purchase contracts (if lawful) and all other payment obligations
of the issuer.
If
AGL
Resources or AGL Capital offers purchase contracts for the purchase or sale
of
debt or equity securities issued by a third party, such third party securities
will be limited to freely-transferable securities of non-affiliated, third
party
issuers, acquired by AGL Resources or AGL Capital in open-market purchases
before the offering or the time the purchase or sale of the third party
securities is permitted under the purchase contracts. In all cases, such
third-party securities will be limited to the securities of public issuers
with
respect to which sufficient market interest and publicly available information
exists and to which neither AGL Resources nor AGL Capital has material,
non-public information. Prior to offering such purchase contracts, AGL Resources
or AGL Capital will provide a comprehensive description of such purchase
contracts and information regarding the third party issuer in an amendment
to
the registration statement of which this prospectus forms a part.
AGL
Resources is obligated under the guarantees to pay any guaranteed amount
immediately after AGL Capital’s failure to do so.
AGL
Resources is a holding company with no independent business operations or source
of income of its own. It conducts substantially all of its operations
through its subsidiaries and, as a result, AGL Resources depends on the earnings
and cash flow of and dividends or distributions from its subsidiaries to provide
the funds necessary to meet its debt and contractual
obligations. Furthermore, a substantial portion of AGL Resources’
consolidated assets, earnings and cash flow is derived from the operation of
its
regulated utility subsidiaries, whose legal authority to pay dividends or make
other distributions to AGL Resources is subject to regulation.
AGL
Resources’ holding company status also means that the right of AGL Resources,
and the rights of the creditors of AGL Resources, including the holders of
debt
securities, to participate in any distribution of the assets of any of its
subsidiaries upon liquidation, reorganization or otherwise is subject to the
prior claims of the creditors of each of the subsidiaries, except to the extent
that the claims of AGL Resources itself as a creditor of a subsidiary may be
recognized.
AGL
Resources or AGL Capital may issue warrants to purchase their debt or equity
securities or securities of third parties or other rights, including rights
to
receive payment in cash or securities based on the value, rate or price of
one
or more specified securities or indices (such as LIBOR, the S&P 500 or other
published statistical measure), or any combination of the foregoing. Warrants
may be issued independently or together with any other securities and may be
attached to, or separate from, such securities. Each series of warrants will
be
issued under a separate warrant agreement to be entered into between AGL
Resources or AGL Capital and, in most cases, a warrant agent. The terms of
any
warrants to be issued and a description of the material provisions of the
applicable warrant agreement will be set forth in the applicable prospectus
supplement. Only AGL Resources may issue warrants that contain conversion
features.
The
applicable prospectus supplement will describe the following terms of any
warrants in respect of which this prospectus is being delivered:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be
issued;
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the
securities or other rights, including rights to receive payment in
cash or
securities based on the value, rate or price of one or more specified
securities or indices, or any combination of the foregoing, purchasable
upon exercise of such warrants;
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the
price at which the securities or other rights purchasable upon exercise
of
such warrants may be purchased;
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the
date on which the right to exercise such warrants shall commence
and the
date on which such right shall
expire;
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if
applicable, the minimum or maximum amount of such warrants which
may be
exercised at any one time;
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if
applicable, the designation and terms of the securities with which
such
warrants are issued and the number of such warrants issued with each
such
security;
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if
applicable, the date on and after which such warrants and the related
securities will be separately
transferable;
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information
with respect to book-entry procedures, if
any;
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if
applicable, a discussion of any material United States Federal income
tax
considerations;
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any
other terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such warrants;
and
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a
description of the full and unconditional guarantee by AGL Resources,
if
any, if the warrants are issued by AGL
Capital.
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If
the
warrants are issued by AGL Capital, AGL Resources will fully and unconditionally
guarantee to each holder of warrants and to the trustee, if any, and its
successors the due and punctual payment of the payment obligations on the
warrants. The guarantees apply whether the payment is due at the maturity date
of the warrants, on an interest payment date, or as a result of acceleration,
an
offer to purchase or otherwise. The guarantees include payment of interest
on
the overdue principal of and interest, if any, on the warrants (if lawful)
and
all other payment obligations of the issuer.
If
AGL
Resources or AGL Capital offers warrants for the purchase or sale of debt or
equity securities issued by a third party, such third party securities will
be
limited to freely-transferable securities of non-affiliated, third party
issuers, acquired by AGL Resources or AGL Capital in open-market purchases
before the offering or the time the purchase or sale of the third party
securities is permitted under the warrants. In all cases, such third-party
securities will be limited to the securities of public issuers with respect
to
which sufficient market interest and publicly available information exists
and
to which neither AGL Resources nor AGL Capital has material, non-public
information. Prior to offering such warrants, AGL Resources or AGL Capital
will
provide a comprehensive description of such warrants and information regarding
the third party issuer in an amendment to the registration statement of which
this prospectus forms a part.
AGL
Resources is obligated under the guarantees to pay any guaranteed amount
immediately after AGL Capital’s failure to do so.
AGL
Resources is an energy services holding company with no independent business
operations or source of income of its own. It conducts substantially
all of its operations through its subsidiaries and, as a result, AGL Resources
depends on the earnings and cash flow of and dividends or distributions from
its
subsidiaries to provide the funds necessary to meet its debt and contractual
obligations. Furthermore, a substantial portion of AGL Resources’
consolidated assets, earnings and cash flow is derived from the operation of
its
regulated utility subsidiaries, whose legal authority to pay dividends or make
other distributions to AGL Resources is subject to regulation.
AGL
Resources’ holding company status also means that the right of AGL Resources,
and the rights of the creditors of AGL Resources, including the holders of
debt
securities, to participate in any distribution of the assets of any of its
subsidiaries upon liquidation, reorganization or otherwise is subject to the
prior claims of the creditors of each of the subsidiaries, except to the extent
that the claims of AGL Resources itself as a creditor of a subsidiary may be
recognized.
As
specified in the applicable prospectus supplement, AGL Resources or AGL Capital
may issue units consisting of one or more purchase contracts, warrants, debt
securities, shares of preferred stock, shares of common stock or any combination
of such securities. The applicable prospectus supplement will
describe:
|
·
|
the
terms of the units and of the purchase contracts, warrants, debt
securities, preferred stock and common stock comprising the units,
including whether and under what circumstances the securities comprising
the units may be traded separately;
|
|
·
|
a
description of the terms of any unit agreement governing the
units;
|
|
·
|
a
description of the provisions for the payment, settlement, transfer
or
exchange of the units; and
|
|
·
|
a
description of the full and unconditional guarantee by AGL Resources,
if
any, if the units are issued by AGL
Capital.
|
If
the
units are issued by AGL Capital, AGL Resources will fully and unconditionally
guarantee to each holder of units and to the trustee, if any, and its successors
the due and punctual payment of the payment obligations on the units. The
guarantees apply whether the payment is due at the maturity date of the units,
on an interest payment date, or as a result of acceleration, an offer to
purchase or otherwise. The guarantees include payment of interest on the overdue
principal of and interest, if any, on the units (if lawful) and all other
payment obligations of the issuer. Only AGL Resources may issue units that
contain conversion features.
AGL
Resources is obligated under the guarantees to pay any guaranteed amount
immediately after AGL Capital’s failure to do so.
AGL
Resources is a holding company with no independent business operations or source
of income of its own. It conducts substantially all of its operations
through its subsidiaries and, as a result, AGL Resources depends on the earnings
and cash flow of and dividends or distributions from its subsidiaries to provide
the funds necessary to meet its debt and contractual
obligations. Furthermore, a substantial portion of AGL Resources’
consolidated assets, earnings and cash flow is derived from the operation of
its
regulated utility subsidiaries, whose legal authority to pay dividends or make
other distributions to AGL Resources is subject to regulation.
AGL
Resources’ holding company status also means that the right of AGL Resources,
and the rights of the creditors of AGL Resources, including the holders of
debt
securities, to participate in any distribution of the assets of any of its
subsidiaries upon liquidation, reorganization or otherwise is subject to the
prior claims of the creditors of each of the subsidiaries, except to the extent
that the claims of AGL Resources itself as a creditor of a subsidiary may be
recognized.
We
may
use the following methods to sell securities:
|
·
|
through
negotiation with one or more
underwriters;
|
|
·
|
through
one or more agents;
|
|
·
|
directly
to purchasers; or
|
|
·
|
through
a combination of the above methods.
|
The
distribution of the securities may be effected from time to time in one or
more
transactions at:
|
·
|
a
fixed price or prices, which may be
changed;
|
|
·
|
market
prices prevailing at the time of
sale;
|
|
·
|
prices
related to those prevailing market prices;
or
|
Each
prospectus supplement will describe the method of distribution of the securities
and any applicable restrictions.
The
applicable prospectus supplement will describe the terms of the offering of
the
securities, including the following:
|
·
|
the
name or names of any agents, underwriters or
dealers;
|
|
·
|
the
public offering or purchase price;
|
|
·
|
any
compensation to underwriters, agents or dealers in the form of
underwriting discounts, commissions or fees;
and
|
|
·
|
any
securities exchanges on which the securities will be
listed.
|
If
any
securities are sold through agents, underwriters or dealers designated by us
from time to time, the prospectus supplement will name such agents, underwriters
or dealers, set forth any compensation payable by us to such agents,
underwriters or dealers and set forth the obligations of such agents,
underwriter and dealers with respect to the securities. We may agree
to enter into an agreement to indemnify the agents, dealers and underwriters
against certain civil liabilities, including liabilities under the Securities
Act.
Certain
persons participating in an offering of the securities may engage in
transactions that stabilize, maintain or otherwise affect the price of the
securities. Specifically, we may enter into derivative or other
hedging transactions with financial institutions that may, in turn, engage
in
sales of common stock to hedge their position, deliver this prospectus in
connection with some or all of those sales and use the shares covered by this
prospectus to close out any short position created in connection with those
sales. We may also sell shares of common stock short using this
prospectus and deliver common stock covered by this prospectus to close out
such
short positions, or loan or pledge common stock to financial institutions that
in turn may sell the shares of common stock using this prospectus. We
may pledge or grant a security interest in some or all of the common stock
covered by this prospectus to support a derivative or hedging position or other
obligation and, if we default in the performance of our obligations, the
pledgees or secured parties may offer and sell the common stock from time to
time pursuant to this prospectus.
Certain
of the underwriters and their associates and affiliates may be customers of,
have borrowing relationships with, engage in other transactions with, and/or
perform services, including investment banking services, for us or one or more
of our affiliates in the ordinary course of business.
The
securities will be new issues of securities and may have no established trading
market. Unless otherwise indicated in the prospectus supplement relating to
a
specific issuance of debt securities, the debt securities will not be listed
on
a national securities exchange or the Nasdaq National Market. We can give no
assurance as to the liquidity of or the existence of trading markets for the
debt securities.
Common
Stock offered by a Selling Shareholder
At
our
election, shares of common stock may be offered and sold by any selling
shareholder who has acquired common stock from us in transactions that were
not
registered under the Securities Act. Sales of shares of common stock by a
selling shareholder may be effected from time to time in one or more of the
following transactions:
|
·
|
through
broker-dealers, acting as agents in transactions (which may involve
block
transactions), in special offerings, on any exchange where common
stock is
traded, or otherwise, at market prices obtainable at the time of
sale, at
prices related to such prevailing market prices, at negotiated prices
or
at fixed prices;
|
|
·
|
to
underwriters who will acquire the shares of common stock for their
own
account and resell them in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale (any public offering price and any
discount
or concessions allowed or reallowed or paid to dealers may be changed
from
time to time);
|
|
·
|
directly
or through broker-dealers or agents in private sales at negotiated
prices;
|
|
·
|
to
lenders when pledged as collateral to secure loans, credit or other
financing arrangements and any subsequent foreclosure, if any,
thereunder;
|
|
·
|
through
short sales, option exercises or other derivative transactions;
or
|
|
·
|
by
any other legally available means.
|
Also, offers to purchase shares may be solicited by agents designated by any
selling shareholder from time to time. This prospectus may be delivered by
underwriters and dealers in connection with short sales undertaken to hedge
exposures under commitments to acquire shares of common stock from selling
shareholders to be sold on a delayed or contingent basis.
Any
selling shareholder and any agents or broker-dealers that participate with
such
selling shareholder in the distribution of any of the shares of common stock
may
be deemed to be “underwriters” within the meaning of the Securities Act, and any
discount or commission received by them and any profit on the resale of the
shares purchased by them may be deemed to be underwriting discounts or
commissions under the Securities Act.
In
connection with a sale of shares of our common stock by any selling shareholder
pursuant to this prospectus, the following information will, to the extent
then
required, be provided in the applicable prospectus supplement relating to such
sale: the identity of the selling shareholder, the manner in which the selling
shareholder acquired the common stock from us, the number of shares to be sold,
the purchase price, the public offering price, if applicable, the name of any
underwriter, agent or broker-dealer, and any applicable commissions, discounts
or other items constituting compensation to such underwriters, agents or
broker-dealers with respect to the particular sale.
The
validity of the offered securities and related guarantees, and certain matters
relating to such securities, will be passed upon for AGL Resources by its
counsel, Kilpatrick Stockton LLP, Atlanta, Georgia. The validity of
certain of the offered securities and related guarantees, and certain matters
relating to such securities, with respect to the laws of the State of Nevada,
will be passed upon by Woodburn and Wedge, Reno, Nevada, or other counsel
identified in the prospectus supplement or term sheet. Matters
relating to the issuance of the Trust Preferred Securities under Delaware law,
the Trust Agreements and certain matters relating to the trust will be passed
upon by Richards, Layton & Finger, P.A., Wilmington,
Delaware, special Delaware counsel to AGL Resources and the
trust. One of the members of our Board of Directors, Wyck A. Knox,
Jr., is a partner with Kilpatrick Stockton LLP.
The
audited financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in
this Prospectus by reference to AGL Resources' Annual Report on Form 10-K,
except as they relate to SouthStar Energy Services LLC for the year ended
December 31, 2004, have been audited by PricewaterhouseCoopers LLP, an
independent registered public accounting firm, and, insofar as they relate
to
SouthStar Energy Services LLC for the year ended December 31, 2004, by Ernst
& Young LLP, an independent registered public accounting firm, whose
reports thereon appear herein. Such financial
statements and management’s assessment of the effectiveness of internal control
over financial reporting have been so included in reliance
on the reports of such independent registered public accounting firms given
on
the authority of such firms as experts in auditing and accounting.
Ernst
& Young LLP, independent registered public accounting firm, has audited the
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting of SouthStar Energy Services LLC
as of
and for the year ended December 31, 2004. Such financial statements
and report are incorporated in this prospectus by reference to the Annual Report
on Form 10-K for the year ended December 31, 2006 and have been so incorporated
in reliance on Ernst & Young LLP’s report given on their authority as
experts in auditing and accounting.
PART
II
INFORMATION NOT
REQUIRED IN PROSPECTUS
ITEM
14. Other
Expenses of Issuance and Distribution.
|
Estimate
of expenses in connection with the issuance and distribution of the
securities being registered are as follows:
|
|
|
SEC
Registration Fee
|
|
$ |
|
* |
|
Printing
Expenses
|
|
$ |
- |
** |
|
Fees
of Trustee/Issuing and Paying Agent
|
|
$ |
5,000 |
** |
|
Fees
of Rating Agency
|
|
$ |
- |
* |
|
Legal
Fees and Expenses
|
|
$ |
30,000 |
** |
|
Accounting
Fees and Expenses
|
|
$ |
30,000 |
** |
|
TOTAL
|
|
$ |
65,000 |
** |
* Applicable
SEC registration fee has been deferred in accordance with Rules 456(b) and
457(r) of the Securities Act of 1933 and are not estimable at this
time.
** The
amounts shown are estimates of expenses for which the registrants are currently
authorized to issue and do not limit the amount of securities that may be
offered.
ITEM
15. Indemnification
of Directors and Officers.
A. AGL
Resources Inc.
Section
14-2-202(b)(4) of the Georgia Business Corporation Code provides that a
corporation’s articles of incorporation may include a provision that eliminates
or limits the personal liability of directors for monetary damages to the
corporation or its shareholders for breach of the directors’ duty of care and
other duties as directors. However, Section 14-2-202(b)(4) of the
Georgia Code does not permit a corporation to eliminate or limit the liability
of a director for (i) a breach of duty involving appropriation of a business
opportunity of the corporation; (ii) an act or omission that involves
intentional misconduct or a knowing violation of law; (iii) any transaction
from
which the director received an improper personal benefit; or (iv) any payments
of a dividend or any other type of distribution that is illegal under Section
14-2-832 of the Georgia Code. Additionally, Section 14-2-202(b)(4) of
the Georgia Code does not eliminate or limit the rights of a corporation or
any
shareholder to seek an injunction or other non-monetary relief in the event
of a
breach of a director’s fiduciary duty, and applies only to claims against a
director arising out of his role as a director and does not relieve a director
from liability arising from his role as an officer or in any other
capacity. The articles of incorporation of AGL Resources include
provisions exculpating its directors from liability to the extent permitted
by
Section 14-2-202(b)(4) of the Georgia Code.
Section
14-2-851 of the Georgia Code authorizes a corporation to indemnify directors
who
are determined to have met the standard of conduct set forth in that
section. However, Section 14-2-856(a) of the Georgia Code provides
that, if authorized by its articles of incorporation, a corporation may
indemnify its directors without regard to the limitations in other sections
of
the Georgia Code, including the limitation in Section 14-2-851 of the Georgia
Code, which requires a determination that a director seeking indemnification
must first be determined to have met the statutorily prescribed standard of
conduct. Section 14-2-856(b), however, prohibits a corporation from
indemnifying a director for liability incurred in a proceeding in which the
director is adjudged liable or subjected to injunctive relief in favor of the
corporation for any of the four acts, outlined above, from which a director
cannot be exculpated from liability as provided in Section 14-2-202(b)(4) of
the
Georgia Code. Section 14-2-856 of the Georgia Code sets forth the
fullest extent to which a corporation may indemnify its directors.
Article
IX of AGL Resources’ articles of incorporation specifies that each person who
was or is made a party or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, derivative, criminal, administrative or investigative, by reason
of the fact that he, or a person of whom he is a legal representative, is or
was
a director, shall be indemnified and held harmless to the fullest extent
authorized by the Georgia Code, as the same exists or may be amended in the
future, if such amendment provides broader indemnification rights than
previously permitted under the Georgia Code, against all expenses, liability
and
loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement) actually and reasonably
incurred or suffered by such director in connection with the
proceeding. The indemnification right specified in AGL Resources’
articles of incorporation will continue for a director who has ceased to be
a
director and shall inure to the benefit of the director’s heirs, executors and
administrators.
Article
IX, Section 9.02 of AGL Resources’ articles of incorporation specifies that AGL
Resources will pay for or reimburse the actual and reasonable expenses incurred
by a director who is a party to a proceeding in advance of final disposition
of
the proceeding if the director furnishes (i) a written affirmation of his good
faith belief that his conduct does not constitute behavior of the kind set
forth
in Georgia Code Section 14-2-856(b) (as specified above) and (ii) a written
undertaking, executed personally on his behalf, to repay any advances if it
is
ultimately determined that he is not entitled to indemnification for such
expenses.
Section
2.15.1 of AGL Resources’ bylaws specifies that in the case of actions brought by
or in the right of AGL Resources, a director’s right to indemnification shall be
determined: (i) if there are two or more disinterested members of the board
of
directors, by the majority vote of a quorum of the disinterested members of
the
board of directors, or by a majority of the members of a committee of two or
more disinterested members appointed by such a vote; (ii) by special legal
counsel or (iii) by the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested member
of the board of directors may not be voted on the determination.
Section
7.1 of AGL Resources’ bylaws state that AGL Resources will indemnify any officer
who was or is made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, derivative,
criminal, administrative or investigative, to the same extent as it is obligated
to indemnify any director of AGL Resources, but without being subject to the
same procedural conditions imposed for the indemnification of directors. AGL
Resources may indemnify and advance expenses to an employee or agent who is
not
a director or officer to the extent that such indemnity or advance of expenses
is consistent with public policy.
In
addition, as authorized by Section 14-2-857 of the Georgia Code, the board
of
directors of AGL Resources has authorized AGL Resources to enter into
indemnification agreements with each of its officers who is not a director
to
provide each such officer indemnification rights equal to those permitted for
its directors pursuant to the provisions of the Georgia Code outlined
above.
The
officers and directors of AGL Resources are presently covered by insurance
which
(with certain exceptions and within certain limitations) indemnifies them
against any losses or liabilities arising from any alleged “wrongful act,”
including any alleged breach of duty, neglect, error, misstatement, misleading
statement, omissions or other act done or wrongfully attempted. AGL
Resources pays the cost of such insurance as permitted by its Bylaws and the
laws of the State of Georgia.
B. AGL
Capital Corporation
Section
78.7502 of Chapter 78 of the Nevada Revised Statutes (the “Nevada General
Corporation Law”) empowers a corporation to indemnify any person who was or is a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or
was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent
of
another corporation or enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he (i) is not
liable pursuant to Section 78.138 of the Nevada General Corporation Law, or
(ii)
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or
its equivalent, does not, of itself, create a presumption that the person is
liable pursuant to Section 78.138 of the Nevada General Corporation Law did
not
act in good faith and in a manner which he reasonably believed to be in or
not
opposed to the best interest of the corporation, and with respect to any
criminal proceeding, he had reasonable cause to believe that his conduct was
unlawful.
Section
78.7502 of the Nevada General Corporation Law also empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including amounts paid in settlement and attorneys’ fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such
action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to
which
such person shall have been adjudged by a court of competent jurisdiction,
after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation unless, and only to the extent
that, the court in which such action or suit was brought or other court of
competent jurisdiction shall determine upon application that in view of all
the
circumstances of the case, that despite the adjudication of liability such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section
78.7502 of the Nevada General Corporation Law further provides that, to the
extent that a director or officer of a corporation has been successful on the
merits or otherwise, in the defense of any action, suit or proceeding referred
to above or in the defense of any claim, issue or matter therein, he must be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by him in connection therewith. Section 78.751 of the Nevada
General Corporation Law provides that indemnification provided for by Section
78.7502 of the Nevada General Corporation Law shall not be deemed exclusive
of
any other rights to which the indemnified party may be entitled, except that
such indemnification may not be made to any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action, unless a court of competent jurisdiction orders otherwise,
utilizing the standard described in the immediately preceding
paragraph. The provisions of Article Eleven of AGL Capital’s Bylaws
are similar in all substantive respects to those contained in Sections 78.7502
of the Nevada General Corporation Law outlined above. Article Eleven provides
that indemnification shall be to the fullest extent legally permissible under
the Nevada General Corporation Law.
Section
78.751 of the Nevada General Corporation Law allows the articles of
incorporation, the bylaws or an agreement made by a corporation to provide
that
the expenses of the officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as they
are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by the officer or director to repay
the amount if it is ultimately determined by a court of competent jurisdiction
that he is not entitled to be indemnified by the corporation; these provisions
do not affect any rights to advancement of expenses to which corporate personnel
other than officers and directors may be entitled under any contract or
otherwise by law. Article Eleven of the AGL Capital’s Bylaws provides
that expenses must be paid by the corporation pursuant to Section 78.751 of
the
Nevada General Corporation Law.
Section
78.751 of the Nevada General Corporation Law requires that, any discretionary
indemnification referred to above, unless ordered by a court or paid as incurred
in advance of final disposition upon receipt of a proper undertaking to repay
the same, must be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. The determination
must be made: (i) by the stockholders; (ii) by the board of directors by
majority vote of a quorum consisting of directors who were not parties to the
act, suite or proceeding; (iii) if a majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or (iv) if a quorum consisting
of directors who were not parties to the act, suit or proceeding cannot be
obtained, by independent legal counsel in a written opinion.
Section
78.752 of the Nevada General Corporation Law empowers a corporation to purchase
and maintain insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise for any liability asserted against him and liability and
expenses incurred by him in his capacity as a director, officer, employee or
agent, or arising out of his status as such, whether or not the corporation
has
the authority to indemnify him against such liability and expenses. Article
Eleven of the AGL Capital’s Bylaws are substantially similar in all substantive
respects to those contained in Section 78.752 of the Nevada General Corporation
Law outlined above.
Article
Eight of AGL Capital’s Articles of Incorporation provides that the corporation
shall indemnify any and all persons whom it has the power to indemnify to the
fullest extent permitted by the Nevada General Corporation
Law. Furthermore, this indemnity shall not be exclusive of other
rights and shall continue as to an indemnified person who has ceased to be
a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors and legal representatives of such person.
Section
78.138(7) of the Nevada General Corporation Law eliminates the personal
liability of the directors to stockholders and creditors of a corporation for
breach of fiduciary duties, except in cases of fraud, intentional misconduct
or
knowing violation of the law. Article Nine of AGL Capital’s Articles
of Incorporation similarly provides that the personal liability of the directors
shall be eliminated to the fullest extent permitted by any amendments or
supplements to the Nevada General Corporation Law.
ITEM
16. Exhibits.
Reference
is made to the Exhibit Index filed as part of this registration
statement.
ITEM
17. Undertakings.
(a) The
undersigned registrants hereby undertake:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the registration statement is on Form S-3 or Form F-3
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the
SEC by the registrants pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for purpose of determining liability under the Securities Act of 1933 to any
Purchaser:
(A) Each
prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus
was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrants under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrants undertake that in a primary offering of securities
of
the undersigned registrants pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrants will be sellers to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrants relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned registrants or used or referred to by the undersigned
registrants;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrants or their securities
provided by or on behalf of the undersigned registrants; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrants to the purchaser.
(b) The
undersigned registrants hereby undertake that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is
incorporated by reference in the registration statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, the registrants have been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will, unless
in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by them is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, AGL Resources Inc., one
of
the registrants, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on August 21,
2007.
AGL
RESOURCES INC.
By: /s/
John W. Somerhalder
II
John
W. Somerhalder II
President
and Chief Executive Officer
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Andrew W. Evans and Paul R. Shlanta, and each of them,
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposed as
he
or she might or could do in person, hereby ratifying and confirming that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities indicated on August
21, 2007.
|
Signature
|
Title
|
| |
|
|
/s/ John
W. Somerhalder II
John W. Somerhalder II
|
President,
Chief Executive Officer and Director (Principal Executive
Officer)
|
|
/s/
Andrew W. Evans
Andrew
W. Evans
|
Executive
Vice President and Chief Financial Officer (Principal Financial
Officer)
|
|
/s/ Bryan E. Seas
Bryan
E. Seas
|
Vice
President, Controller and Chief Accounting Officer (Principal Accounting
Officer)
|
|
/s/
D. Raymond Riddle
D.
Raymond Riddle
|
Chairman
of the Board
|
|
/s/
Thomas D. Bell,
Jr.
Thomas
D. Bell, Jr.
|
Director
|
|
/s/ Charles R. Crisp
Charles
R. Crisp
|
Director
|
|
/s/
Michael J.
Durham
Michael
J. Durham
|
Director
|
|
/s/
Arthur E.
Johnson
Arthur
E. Johnson
|
Director
|
|
/s/
Wyck A. Knox,
Jr.
Wyck
A. Knox, Jr.
|
Director
|
|
/s/Dennis
M. Love
Dennis
M. Love
|
Director
|
|
/s/
Charles H.
McTier
Charles
H. McTier
|
Director
|
|
/s/ Dean R. O’Hare
Dean
R. O’Hare
|
Director
|
|
/s/ James A. Rubright
James
A. Rubright
|
Director
|
|
/s/
Felker W. Ward, Jr.
Felker
W. Ward, Jr.
|
Director
|
|
/s/
Bettina M. Whyte
Bettina
M. Whyte
|
Director
|
|
/s/ Henry C. Wolf
Henry
C. Wolf
|
Director
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, AGL Capital Corporation,
one
of the registrants, certifies that it has reasonable grounds to believe that
it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on August 21,
2007.
AGL
CAPITAL CORPORATION
By: /s/
Paul R. Shlanta
Paul
R. Shlanta
President
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Andrew W. Evans and Paul R. Shlanta, and each of them,
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposed as
he
or she might or could do in person, hereby ratifying and confirming that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities indicated on August
21, 2007.
|
Signature
|
Title
|
| |
|
|
/s/
Paul R. Shlanta
Paul
R. Shlanta
|
President
and Director
(Principal
Executive Officer)
|
|
/s/ Wendy Mavrinac
Wendy
Mavrinac
|
Director
|
|
/s/ Brett A. Stovern
Brett
A. Stovern
|
Vice
President, Treasurer and Director
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, AGL Capital Trust II, one
of
the registrants, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on August 21,
2007.
AGL
CAPITAL TRUST II
By: AGL
Capital Corporation
As
Sponsor
By:
/s/ Paul R.
Shlanta
Paul
R. Shlanta
Trustee
EXHIBIT
INDEX
Exhibit
Number
|
**1.1
|
Form
of Underwriting Agreement relating to debt.
|
|
**1.2
|
Form
of Underwriting Agreement relating to Trust Preferred
Securities.
|
|
**1.3
|
Form
of Underwriting Agreement relating to equity.
|
|
*3.1
|
AGL
Resources Inc. Amended and Restated Articles of Incorporation (filed
as
Exhibit B to Amendment No. 1 to Registration Statement on Form S-4 (SEC
File No. 33-99826))
|
|
*3.2
|
AGL
Resources Inc. Bylaws, as amended (filed as Exhibit 3.2 to the AGL
Resources Quarterly Report on Form 10-Q for the quarter ended June
30,
2003)
|
|
**4.1
|
Form
of Note.
|
|
*4.2
|
Indenture
dated February 20, 2001 between AGL Capital, AGL Resources Inc. and
The
Bank of New York Trust Company, N.A., as Trustee (filed as Exhibit
4.2 to Form S-3 filed September 17, 2001 (SEC File No.
333-69500))
|
|
**4.3
|
Form
of Guarantee between AGL Capital and AGL Resources Inc., as
Guarantor.
|
|
*4.4
|
Form
of Indenture among AGL Resources Inc., AGL Capital and The Bank of
New
York Trust Company, N.A., as Trustee (filed as Exhibit 4.4 to Form
S-3
filed September 17, 2001 (SEC File No. 333-69500))
|
|
**4.5
|
Form
of Junior Subordinated Debentures.
|
|
**4.6
|
Form
of Trust Preferred Securities Guarantee Agreement.
|
|
*4.7
|
Certificate
of Trust of AGL Capital Trust II dated as of March 20, 2001 (filed
as
Exhibit 4.4 to Form S-3 filed May 4, 2001 (SEC File No.
333-60248))
|
|
*4.8
|
Trust
Agreement of AGL Capital Trust II dated as of March 20, 2001 (filed
as
Exhibit 4.5 to Form S-3 filed May 4, 2001 (SEC File No.
333-60248))
|
|
**4.9
|
Form
of Amended and Restated Trust Agreement.
|
|
**4.10
|
Form
of Common Security Certificate (included as an exhibit to Exhibit
4.9).
|
|
**4.11
|
Form
of Trust Preferred Security Certificate (included as an exhibit to
Exhibit
4.9).
|
|
**4.12
|
Form
of Agreement as to Expenses and Liabilities.
|
|
**4.13
|
Form
of Purchase Contract Agreement.
|
|
**4.14
|
Form
of Warrant Agreement.
|
|
**4.15
|
Form
of Unit Agreement.
|
|
5.1
|
Opinion
of Kilpatrick Stockton LLP.
|
|
5.2
|
Opinion
of Woodburn and Wedge.
|
|
5.3
|
Opinion
of Richards, Layton & Finger, P.A.
|
|
12
|
Ratio
of Earnings to Fixed Charges.
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm.
|
|
23.2
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
|
|
23.3
|
Consent
of Kilpatrick Stockton LLP (included in Exhibit 5.1).
|
|
23.4
|
Consent
of Woodburn and Wedge (included in Exhibit 5.2).
|
|
23.5
|
Consent
of Richards, Layton & Finger, P.A. (included in Exhibit
5.3)
|
|
24
|
Powers
of Attorney for AGL Capital Corporation and AGL Resources Inc (included
with signature pages hereto).
|
|
25.1
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of The
Bank of New York Trust Company, N.A. under the indenture relating
to the
Debt Securities.
|
|
25.2
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of The
Bank of New York Trust Company, N.A. to act as trustee under the
indenture
relating to the Junior Subordinated Debentures.
|
|
25.3
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of The
Bank of New York Trust Company, N.A. to act as trustee under the
Trust
Preferred Securities Guarantee Agreement relating to Trust Preferred
Securities.
|
|
25.4
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of The
Bank of New York Trust Company, N.A. to act as trustee under the
Amended
and Restated Trust Agreement relating to Trust Preferred
Securities.
|
|
*
|
Such
exhibit previously has been filed with the Securities and Exchange
Commission as part of the filing indicated and as incorporated herein
by
reference.
|
|
**
|
To
be subsequently filed or incorporated by
reference.
|