Exhibit 1.1
$300,000,000
TECO ENERGY, INC.
7.50% NOTES DUE JUNE 15, 2010
UNDERWRITING AGREEMENT
----------------------
June 10, 2003
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. TECO Energy, Inc., a Florida corporation ("COMPANY"),
proposes to issue and sell $300,000,000 principal amount of its 7.50% Notes due
2010 (the "OFFERED SECURITIES") to the underwriters named in Schedule A hereto
(the "UNDERWRITERS"), to be issued under an indenture, dated as of August 17,
1998 ("BASE INDENTURE"), between the Company and The Bank of New York, as
trustee ("TRUSTEE"), as heretofore amended and as amended and supplemented by
the ninth supplemental indenture dated as of June 10, 2003 (the Base Indenture,
as so amended and supplemented, being referred to herein as the "INDENTURE").
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-1020118), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission ("COMMISSION") and has been declared
effective. Such registration statement, as amended at the date of this
Agreement and including all material incorporated by reference therein,
is hereinafter referred to as the "REGISTRATION STATEMENT", and the
prospectus relating to the Offered Securities included in the
Registration Statement, as supplemented to reflect the terms of the
offering of the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Securities Act of 1933, as amended (the "ACT"), including all
material incorporated by reference therein, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act. No stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus, any related preliminary prospectus or
preliminary prospectus supplement shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT") after the date of this Agreement,
or the issue date of the Prospectus, any related preliminary prospectus
or preliminary prospectus supplement, as the case may be, deemed to be
incorporated therein by reference. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus,
the Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX"). Any preliminary prospectus or preliminary prospectus
supplement delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(b) On the date the Company's most recent Annual Report on
Form 10-K was filed with the Commission, the Registration Statement
relating to the Offered Securities conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("TRUST
INDENTURE ACT") and the rules and regulations of the Commission ("RULES
AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of this Agreement, the Registration Statement and the
Prospectus conform in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such
documents includes on the date of this Agreement or will include as of
the date of any amendment or supplement thereto or the Closing Date (as
defined below) any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the foregoing does
not apply to that part of the Registration Statement which
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constitutes the Statement of Eligibility (Form T-1) of the Trustee
under the Trust Indenture Act and statements in or omissions from any
such documents based upon written information furnished to the Company
by any Underwriter through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("XXXXXXX XXXXX") and Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX"), as representatives for the Underwriters
("REPRESENTATIVES"), if any, specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b) hereof. Except as disclosed in the Prospectus,
on the date of this Agreement, the Company's Annual Report on Form 10-K
most recently filed with the Commission as supplemented by all
subsequent reports (collectively, the "Exchange Act Reports") which
have been filed by the Company with the Commission, does not include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
documents, when they were filed with the Commission (or if amended or
superseded by a filing prior to the date hereof, then on the date of
such filing), conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Florida,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT").
(d) Each "significant subsidiary" (as such term is defined in
Rule 1-02 of Regulation S-X) of the Company (each, a "SIGNIFICANT
SUBSIDIARY") (each Significant Subsidiary is listed on SCHEDULE B
hereto) has been duly incorporated and is an existing corporation in
good standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; each other
subsidiary of the Company has been duly incorporated or formed, as the
case may be, and is an existing corporation or other entity, as the
case may be, in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus,
except where the failure of the foregoing to be correct would not have
a Material Adverse Effect; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation or other entity in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect; all of the issued and outstanding capital
stock or other equity interests of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock or other equity interests of each
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subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects, except for such liens,
encumbrances and defects as would not have a Material Adverse Effect.
(e) The Indenture has been duly authorized by the Company and
has been duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized by the Company; and the Offered
Securities, when validly authenticated, delivered and paid for pursuant
to this Agreement on the Closing Date (as defined below), and the
Indenture, when validly executed and delivered by the Trustee, will
each have been duly executed, issued and delivered by the Company, will
conform to the description thereof contained in the Prospectus, and
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity
principles (whether considered in a proceeding in equity or at law);
and the Offered Securities are entitled to the benefits of the
Indenture.
(f) No consent, approval, authorization, or order of, or
filing, registration or qualification with, any governmental agency or
body or any court (including without limitation the Florida Public
Service Commission) is required for the performance by the Company of
its obligations hereunder or in connection with the consummation of the
transactions contemplated by this Agreement (including without
limitation in connection with the issuance and sale of the Offered
Securities by the Company), except such as have been obtained or made
under the Act and the Trust Indenture Act and such as may be required
under state securities laws.
(g) The execution, delivery and performance of the Indenture
and this Agreement, and the issuance and sale of the Offered Securities
and compliance by the Company with the terms and provisions of the
Indenture, this Agreement and the Offered Securities will not result in
a breach or violation by the Company of any of the terms and provisions
of, or constitute a default by the Company under, (A) any statute,
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
of its property or assets or any Significant Subsidiary or any of their
respective properties or assets, (B) any agreement or instrument to
which the Company or any Significant Subsidiary is a party or by which
the Company or any Significant Subsidiary is bound or to which any of
the properties of the Company or any Significant Subsidiary is subject,
except for breaches, defaults or violations that would not result in a
Material Adverse Effect, or (C) the charter or by-laws of the Company
or any Significant Subsidiary; and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or involving the Company
or any of its property or assets, any of its
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subsidiaries or any of their respective properties or assets that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture
or this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and to the Company's best knowledge
after reasonable investigation, no such actions, suits or proceedings
are threatened or contemplated.
(j) The financial statements of the Company, together with the
related notes to such financial statements, included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and except as otherwise disclosed in
the Prospectus, such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis (except as stated therein); and
any schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein.
PricewaterhouseCoopers LLP, who have certified certain of such
financial statements of the Company, are independent public accountants
with respect to the Company and its subsidiaries as required by the
Exchange Act and the rules and regulations thereunder.
(k) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, there has been no material adverse change
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole.
(l) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(m) The Company has filed an appropriate exemption statement
pursuant to the provisions of the Public Utility Holding Company Act of
1935, as amended (the "PUBLIC UTILITY HOLDING COMPANY ACT") and is
exempt from all provisions of the Public Utility Holding Company Act
except Section 9(a)(2) thereof relating to the acquisition of
securities of other public utility companies. The Company is not
subject to the jurisdiction of the Florida Public Service Commission
with respect to the issue and sale of the Offered Securities.
(n) The Company and each of its subsidiaries have complied
with all provisions of Section 517.075, Florida Statutes relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba.
(o) They Company is subject to Section 13 or 15(d) of the
Exchange Act.
(p) Any certificate signed by any officer of the Company or
any of its subsidiaries delivered to the Representatives or to counsel
for the Underwriters shall be deemed a
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representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
(q) Neither the Company nor any of its subsidiaries is in
violation of, or in default in, the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement
or instrument that is included or incorporated by reference as an
exhibit to the Exchange Act Reports, which the Company has filed with
the Commission, or set forth on Schedule C attached hereto, except for
such defaults that would not result in a Material Adverse Effect.
(r) Except as described in the Registration Statement and
Prospectus and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) to the best knowledge of the Company
after reasonable investigation, neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws, and to the best knowledge of
the Company after reasonable investigation, are each in compliance with
their requirements, (C) there are no pending or, to the best knowledge
of the Company after reasonable investigation, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) to the best knowledge of
the Company after reasonable investigation, there are no events or
circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(s) The Exchange Act Reports, where applicable, and the
Prospectus comply in all material respects with Regulation G and with
Item 10(e) of the Commission's Regulations.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, and subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company the principal amount of Offered
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Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional amount of Offered Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof. The
purchase price of the Offered Securities shall be 97.682% of the principal
amount of the Offered Securities.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC"), registered in the name of
Cede & Co., as nominee for DTC, and to be credited to the account of XXXXXXX
XXXXX for the respective accounts of the Underwriters with DTC. Interests in any
permanent global securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Prospectus. Payment for the
Offered Securities shall be made by delivery by XXXXXXX XXXXX in Federal (same
day) funds by wire transfer to an account at a bank, designated by the Company
and open for the receipt of funds (and verification of the receipt of funds), at
9:00 A.M. (New York time), on June 13, 2003, or at such other time not later
than seven full business days thereafter as the Representatives and the Company
determine, such time being herein referred to as the "CLOSING DATE", against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase prices for, the
Offered Securities which it has agreed to purchase. The Global Securities will
be made available for checking at the office of DTC or its designated custodian
(the "DESIGNATED OFFICE") at least one business day prior to the Closing Date.
The documents to be delivered on the Closing Date by or on behalf of
the parties hereto pursuant to Section 6, including the cross-receipt for the
Offered Securities and any additional documents requested by the Representatives
pursuant to Section 6, will be delivered at the offices of Xxxxxx & Dodge LLP,
000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, and the Offered Securities will be
delivered at the Designated Office, all at 9:00 A.M. on the Closing Date.
The Company hereby confirms its engagement of Xxxxxxx Xxxxx as, and
Xxxxxxx Xxxxx hereby confirms its agreement with the Company to render services
as, a "qualified independent underwriter" within the meaning of Rule 2720 of the
Conduct Rules of the National Association of Securities Dealers, Inc. with
respect to the offering and sale of the Offered Securities. Xxxxxxx Xxxxx,
solely in its capacity as qualified independent underwriter and not otherwise,
is referred to herein as the "Independent Underwriter".
4. Offering by the Underwriters. It is understood that the Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with each
Underwriter that it will furnish to counsel for the Underwriters, one conformed
copy of the Registration Statement, including all exhibits, in the form it
became effective and all amendments thereto and that, in connection with the
offering of the Offered Securities:
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(a) The Company will prepare the Prospectus in a form approved
by the Representatives and file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b) within the time
prescribed under Rule 424(b).
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect any such amendment or supplementation to
which the Representatives have reasonably objected in writing, and the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement; provided, however, that the foregoing
shall not apply to any of the Company's periodic filings with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act; and the Company will also advise the Representatives
promptly of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by an Underwriter or any dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor an Underwriter's delivery to offerees
or investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6 hereof.
(d) Not later than 16 months after the date of this Agreement,
the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration statement
relating to the Offered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to each Underwriter copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the requesting
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
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(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Offered Securities for sale and to
determine their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution;
provided, that the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
such jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) During the period of five years after the date of this
Agreement, the Company will furnish to each Underwriter as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
each Underwriter (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with or furnished
to the Commission under the Exchange Act or mailed to stockholders,
provided that, any such report or proxy statement shall be deemed to be
furnished when posted electronically on a web site designated by the
Company to which the Underwriters have access, and (ii) from time to
time, such other information concerning the Company as the requesting
Underwriter may reasonably request, subject to appropriate
confidentiality undertakings reasonably satisfactory to the Company and
the right of the Company to withhold information if required by
applicable law.
(h) During the period of two years after the Closing Date, the
Company will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is required to
be registered under Section 8 of the Investment Company Act.
(i) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement and the Indenture,
including (i) the fees and expenses of the Trustee and its professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities, the preparation and printing of this Agreement, the Offered
Securities, the Indenture, the Prospectus and any amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities (other than, in each
case, the professional fees and expenses of counsel to the Underwriters
except as provided below), (iii) any filing fees or other expenses
(including fees and disbursements of counsel to the Underwriters, which
fees and disbursements shall not exceed $5,000) incurred in connection
with qualification of the Offered Securities for sale and determination
of their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and the printing of
memoranda relating thereto; (iv) any applicable filing fee incident to
the review by the National Association of Securities Dealers, Inc. of
the terms of the offering of the Offered Securities and the fees and
disbursements of counsel to the Underwriters in connection therewith
(which counsel fees shall be included in the cap set forth above), (v)
any fees charged by investment rating agencies for the rating of the
Offered Securities, and (vi) any expenses incurred in distributing the
Prospectus, any preliminary prospectuses, or any preliminary prospectus
supplements (including any amendments and supplements thereto) to the
Underwriters.
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(j) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue (other than debt securities
the interest on which is excluded from gross income for federal income
tax purposes under the Internal Revenue Code of 1986, as amended) or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representatives for a period beginning at the date of this Agreement
and ending at the later of the Closing Date or the lifting of trading
restrictions by the Representatives, but in no event ending later than
fifteen (15) days from the Closing Date.
6. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Offered Securities on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date hereof, the Representatives shall
have received a letter addressed to the Underwriters, dated the date of
this Agreement, of PricewaterhouseCoopers LLP confirming that they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules and any summary of earnings examined by them and
included or incorporated by reference in the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included or
incorporated by reference in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements and
any summary of earnings included or incorporated by
reference in the Prospectus do not comply as to form
in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited
financial
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statements and summary of earnings for them to be in
conformity with generally accepted accounting
principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, such information does
not agree with the amounts set forth in the unaudited
consolidated financial statements for those same
periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited consolidated
financial statements;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any increase in
consolidated net current liabilities or any decrease
in consolidated net current assets, or net assets, or
stockholders' equity, as compared with amounts shown
on the latest balance sheet included or incorporated
by reference in the Prospectus; or
(D) for the period from the closing date of
the latest income statement included or incorporated
by reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year,
in consolidated net sales, net operating income in
the total or per share amounts of consolidated income
before extraordinary items, net income or in the
ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information included or incorporated by reference in
the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to the Closing Date,
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no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole which, in the
judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company,
including the Offered Securities, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or the withdrawal by any nationally
recognized statistical rating organization of its rating of any debt
securities of the Company; (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. federal or New York authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the sole judgment of the Representatives,
the effect of any event or change referred to in this clause (v) is so
adverse and material as to make it impractical or inadvisable to
proceed with the completion of the offering or the sale of and payment
for the Offered Securities; or (vi) any change in U.S. or international
financial, political or economic conditions if, in the sole judgment of
the Representatives, the effect of any event or change referred to in
this clause (vi) is so adverse and material as to make it impractical
or inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion
addressed to the Underwriters, dated the Closing Date, of Xxxxxx &
Dodge LLP, counsel for the Company, reasonably satisfactory in form and
substance to the Representatives and solely to the effect that:
(i) The Company has been duly incorporated and is a
validly existing corporation in good standing under the laws
of the State of Florida, with corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Prospectus, and to enter into and perform
its obligations under this Agreement and the Indenture;
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(ii) Each of the Offered Securities and the Indenture
has been duly authorized, executed and delivered by the
Company; the Offered Securities, when validly authenticated
and delivered by the Trustee, will be validly issued and
conform as to legal matters to the description thereof
contained in the Prospectus; the Offered Securities and the
Indenture, when validly authenticated, executed and delivered
by the Trustee, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance
with their respective terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether
considered in a proceeding in equity or at law); and the
Offered Securities are entitled to the benefits of the
Indenture;
(iii) No filing, registration or qualification with,
or authorization, approval, consent, license, order or decree
of, any court or governmental agency or body is necessary or
required in connection with the due authorization, execution
and delivery of this Agreement or the Indenture or for the
offering, issuance, sale or delivery of the Offered Securities
by the Company, except such as have been obtained or made
under the Act, the Rules and Regulations thereunder, and the
Trust Indenture Act or such as may be required under state
securities laws as to which such counsel need express no
opinion;
(iv) The execution, delivery and performance by the
Company of this Agreement, the Offered Securities and the
Indenture and the consummation of the transactions
contemplated by this Agreement and in the Registration
Statement (including the issuance and sale of the Offered
Securities and the use of the proceeds from the sale of the
Offered Securities as described in the Prospectus under the
caption "Use of Proceeds"), do not and will not, whether with
or without the giving of notice or lapse of time or both, (i)
violate, constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to any agreement or instrument that is listed as an
exhibit to the Company's Form 10-K for the year ended December
31, 2002 or any of the Company's Forms 10-Q or 8-K filed
thereafter but on or prior to the date of such opinion, or
(ii) violate (x) the charter or by-laws of the Company, (y)
any applicable statute, rule or regulation, or (z) any
judgment, order, writ or decree known to such counsel of any
government, government instrumentality or court;
(v) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
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(vi) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(vii) The Indenture has been duly qualified under the
Trust Indenture Act;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion within the time period required by Rule 424(b) and, to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued under the Act and no proceedings for
that purpose have been instituted or are pending or threatened
by the Commission;
(x) The Company is exempt from the provisions of the
Public Utility Holding Company Act, except Section 9(a)(2)
thereof relating to the acquisition of securities of other
public utility companies;
(xi) The Registration Statement, the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement thereto, excluding the documents
incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom
and the statements of Eligibility on Form T-1 of the Trustee,
as to which such counsel need not express an opinion) complied
as to form in all material respects with the requirements of
the Act, the Rules and Regulations thereunder and the Trust
Indenture Act;
(xii) The documents incorporated by reference in the
Prospectus and each amendment or supplement thereto (other
than the financial statements and supporting schedules
included therein or omitted therefrom and the statements of
Eligibility on Form T-1 of the Trustee, as to which such
counsel need not express an opinion), when they became
effective or were filed with the Commission or as subsequently
amended prior to the date of this Agreement, as the case may
be, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable Rules and
Regulations published thereunder; and
(xiii) The statements made in the Prospectus under
the captions "Description of the Notes" and "Description of
the Debt Securities," insofar as such statements purport to
constitute a summary of the terms of any of the Indenture or
the Offered Securities, constitute an accurate summary thereof
in all material respects.
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In giving such opinion, such counsel may limit its
opinion to the law of the Commonwealth of Massachusetts and
the federal law of the United States. Such counsel may also
state that it has relied upon certificates of public officials
and, insofar as such opinion involves factual matters, it has
relied upon certificates of officers of the Company. In
rendering its opinion, such counsel may rely as to matters of
Florida law upon the opinion of the general counsel of the
Company and may assume the due authorization, execution and
delivery of all documents by parties thereto, other than the
Company. In addition to the matters set forth above, such
opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel which causes
it to believe that the Registration Statement, as of the date
the Company's most recent Annual Report on Form 10-K was filed
with the Commission, or any amendment thereto, as of its
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its issue date and as
of the Closing Date, or any amendment or supplement thereto,
as of its issue date and as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such
counsel need express no comment as to the Forms T-1 or the
financial statements, including the notes thereto and
supporting schedules, or other financial information and data
contained in the Registration Statement or the Prospectus.
With respect to such statement, such counsel may state that
its belief is based upon procedures set forth therein
satisfactory to the Representatives but is without independent
investigation or verification.
(e) The Representatives shall have received an opinion
addressed to the Underwriters, dated the Closing Date, of the general
counsel of the Company, reasonably satisfactory in form and substance
to the Representatives and solely to the effect that:
(i) The Company has been duly incorporated and is a
validly existing corporation in good standing under the laws
of the State of Florida, with corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the Indenture;
(ii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, and has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus; except as otherwise disclosed
in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned of record and, to
the best of such counsel's knowledge, beneficially, by the
Company, directly or indirectly through subsidiaries of the
Company, free and clear of any lien, encumbrance or defect;
and none of the outstanding shares of
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capital stock of any Significant Subsidiary was issued in
violation of the preemptive or, to the best of such counsel's
knowledge, similar rights of any securityholder of such
Significant Subsidiary;
(iii) Each of the Offered Securities and the
Indenture has been duly authorized, executed and delivered by
the Company; the Offered Securities, when validly
authenticated and delivered by the Trustee, will be validly
issued; the Offered Securities and the Indenture, when validly
authenticated, executed and delivered by the Trustee, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered
in a proceeding in equity or at law);
(iv) All descriptions in the Registration Statement
of written contracts and other documents to which the Company
is a party are accurate in all material respects; to the best
of such counsel's knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto
are correct in all material respects;
(v) No filing, registration or qualification with, or
authorization, approval, consent, license, order or decree of,
any court or governmental agency or body (including without
limitation the Florida Public Service Commission) is necessary
or required in connection with the due authorization,
execution and delivery of this Agreement or the Indenture or
for the offering, issuance, sale or delivery of the Offered
Securities by the Company, except such as may be required
under state securities law as to which such counsel need
express no opinion;
(vi) The execution, delivery and performance by the
Company of this Agreement, the Offered Securities and the
Indenture and the consummation of the transactions
contemplated by this Agreement and in the Registration
Statement (including the issuance and sale of the Offered
Securities and the use of the proceeds from the sale of the
Offered Securities as described in the Prospectus under the
caption "Use of Proceeds") do not and will not, whether with
or without the giving of notice or lapse of time or both, (i)
violate, constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to any agreement or instrument that is listed as an
exhibit to the Company's Form 10-K for the year ended December
31, 2002 or any of the Company's Forms 10-Q or 8-K filed
thereafter but on or prior to the date of such opinion, or
(ii) violate (x) the charter or by-laws of the Company or any
Significant Subsidiary, (y) any applicable statute, rule or
regulation, or (z) any judgment, order, writ or decree
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known to such counsel of any government, government
instrumentality or court; and
(vii) This Agreement has been duly authorized,
executed and delivered by the Company.
In giving such opinion, such counsel may limit her opinion to
the law of the State of Florida, and such counsel may rely as to all
matters governed by the laws of jurisdictions other than the law of the
State of Florida, upon the opinion of counsel satisfactory to the
Representatives. Such counsel may assume the due authorization,
execution and delivery of documents by the parties thereto, other than
the Company.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the
attention of such counsel which causes her to believe that the
Registration Statement, as of the date the Company's most recent Annual
Report on Form 10-K was filed with the Commission, or any amendment
thereto, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as its issue date and as of the
Closing Date, or any amendment or supplement thereto, as of its issue
date and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that such
counsel need express no comment as to the Forms T-1 or the financial
statements, including the notes thereto and supporting schedules, or
other financial information and data contained in the Registration
Statement or the Prospectus. With respect to such statement, such
counsel may state that her belief is based upon procedures set forth
therein satisfactory to the Representatives but is without independent
investigation or verification.
(f) The Representatives shall have received from Ropes & Xxxx,
counsel for the Underwriters, such opinion or opinions addressed to the
Underwriters, dated the Closing Date, with respect to the validity of
the Offered Securities delivered on such Closing Date, the Registration
Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(g) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of any
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and, that subsequent to the date of
-17-
the most recent financial statements in the Prospectus, there has been
no material adverse change in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter addressed
to the Underwriters, dated the Closing Date, of PricewaterhouseCoopers
LLP which meets the requirements of subsection (a) of this Section,
except that the specified date referred to in such subsection will be a
date not more than three days prior to the Closing Date for the
purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive compliance with
any conditions to the obligations of the Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if
any, who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
arising out of any investigation or proceeding of any governmental
agency or body, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection
(b) below; and, provided, further, that, this indemnity with respect to
the Prospectus or any related preliminary prospectus or preliminary
prospectus supplement shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the
Offered Securities that are the subject thereof if (i) such Underwriter
did not send or deliver to such person a copy of the Prospectus (or the
Prospectus, as amended or supplemented) (excluding delivery of
documents incorporated therein by reference) at or prior to the
confirmation of the sale of the Offered Securities to
-18-
such person (but only to the extent that such loss, claim, damage or
liability is determined by a court of competent jurisdiction to arise
out of the untrue statement or omission of a material fact that was
corrected in the Prospectus (or the Prospectus, as amended or
supplemented) that was not delivered by such Underwriter at or prior to
confirmation of sale) in any case where such delivery is required by
the Act, (ii) the Company has provided to such Underwriter sufficient
quantities of the Prospectus (or the Prospectus, as amended or
supplemented) in sufficient time to enable such Underwriter to deliver
to such person a copy of the Prospectus (or the Prospectus, as amended
or supplemented) in a timely manner, and (iii) the untrue statement or
omission of a material fact contained in the Prospectus or any related
preliminary prospectus or preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus, as amended or
supplemented).
In addition to and without limitation of the Company's
obligation to indemnify Xxxxxxx Xxxxx as an Underwriter, the Company
also agrees to indemnify and hold harmless the Independent Underwriter,
its partners, directors and officers and each person, if any, who
controls the Independent Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, as a
result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct
Rules of the National Association of Securities Dealers, Inc. in
connection with the offering of the Securities. Each Underwriter agrees
that Xxxxxxx Xxxxx shall have no additional liability to any of the
Underwriters pursuant to Sections 18 or 19 of the Xxxxxxx Xxxxx Master
Agreement Among Underwriters (the "AAU") as a result of its serving as
a "qualified independent underwriter" within the meaning of Rule 2720
of the Conduct Rules of the National Association of Securities Dealers,
Inc. with respect to the offering and sale of the Offered Securities.
In addition, each Underwriter agrees to pay its proportionate share,
based upon the respective underwriting obligations of the Underwriters,
of any liability of the type referred to in Sections 18 and 19 of the
AAU incurred by Xxxxxxx Xxxxx in its capacity as Independent
Underwriter.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, its directors and officers and
each person, if any, who controls the Company within the meaning of
Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by
the Company in
-19-
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information consists of the
following information in the Prospectus: (i) the selling concession and
discount reallowance figures in the fifth paragraph under the caption
"Underwriting" and (ii) the information contained in the ninth
paragraph under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. If indemnity is
sought pursuant to Section 6(a), then, in addition to the fees and
expenses of such counsel for the indemnified party, the indemnifying
party shall be liable for the reasonable fees and expenses of not more
than one counsel separate from its own counsel and that of any other
indemnified party for the Independent Underwriter in its capacity as a
"qualified independent underwriter" and all persons, if any, who
control the Independent Underwriter within the meaning of Section 15 of
the Act in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances if, in the reasonable judgment of
the Independent Underwriter, there may exist a conflict of interest
between the Independent Underwriter and any other indemnified party.
Any such separate counsel for the Independent Underwriter and such
control persons of the Independent Underwriter shall be designated in
writing by the Independent Underwriter. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of
such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of
an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
-20-
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Company and the Underwriters agree that Xxxxxxx Xxxxx will not
receive any additional benefits hereunder for serving as the
Independent Underwriter in connection with the offering and sale of the
Offered Securities. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each partner,
director or officer of the Underwriter and each person, if any, who
controls the Underwriter within the meaning of the Act; and the
obligations of each Underwriter under this Section shall be in addition
to any liability which such Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each director and
officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the
Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of such Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If
-21-
for any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of a default under Section
9 hereof or the occurrence of any event specified in clause (iii), (iv), (v) or
(vi) of Section 6(c), the Company will reimburse the non-defaulting Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail on the Closing Date to purchase the Offered
Securities which it or they are obligated to purchase under this Agreement (the
"DEFAULTED SECURITIES"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such principal amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted
Securities does not exceed 10% of the aggregate principal amount of the
Offered Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted
Securities exceeds 10% of the aggregate principal amount of the Offered
Securities to be purchased on such date, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement either (i) the Representatives or (ii) the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, shall be directed to the Representatives and be
mailed, delivered, including by facsimile, and confirmed to: Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Global Energy & Power Group, 00xx Xxxxx,
-00-
xxx Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxx, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Fixed Income Syndicate Department or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Corporate Secretary.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
partners, officers and directors and controlling persons referred to in Section
7, and no other person will have any right or obligation hereunder. No purchaser
of the Offered Securities from an Underwriter shall be deemed to be a successor
by reason merely of such purchase.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same agreement.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14. Jurisdiction. The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
15. Tax Disclosure. Notwithstanding any other provision of this
Agreement, from the commencement of discussions with respect to the transactions
contemplated hereby, except as reasonably necessary to comply with securities
laws, the Company (and each employee, representative or other agent of the
Company) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure (as such terms are used in Sections 6011,
6111 and 6112 of the U.S. Code and the Treasury Regulations promulgated
thereunder) of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided
relating to such tax treatment and tax structure.
-23-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President - Treasury and Risk
Management (Treasurer)
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written by the following Representatives for themselves and the
other Underwriters named in Schedule A to the Underwriting Agreement.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By /s/ Xxx Xxxxxxx
-------------------------------
Authorized Signatory
Xxx Xxxxxxx, Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxxx Xxxxxxxxxx
-------------------------------
Authorized Signatory
Xxxxxx Xxxxxxxxxx, Executive Director
CITIGROUP GLOBAL MARKETS INC.
By /s/ Xxxxx Kind
--------------------------------
Authorized Signatory
Xxxxx Kind, Managing Director
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxx X. Xxxxxxx, Xx.
--------------------------------
Authorized Signatory
Xxxx X. Xxxxxxx, Xx., Vice President
SCHEDULE A
UNDERWRITER 7.50% NOTES DUE 2010
-----------
Xxxxxxx Xxxxx, Pierce, Fenner, Xxxxx Incorporated................. $ 105,000,000
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated................................. 75,000,000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Citigroup Global Markets Inc...................................... 75,000,000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc........................................ 45,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
TOTAL............................................................. $__300,000,000_____
SCHEDULE B
List of Significant Subsidiaries
1. Tampa Electric Company
2. TECO Power Services Corporation
3. TECO Transport Corporation
4. TECO Diversified, Inc.
5. TECO Coal
SCHEDULE C
Material Contracts
1. Guaranty Agreement dated as of October 3, 1997 by and between TECO
Diversified Inc. and ABN AMRO Chicago Corporation.
2. Guaranty Agreement dated as of June 21, 1993 by TECO Diversified Inc.
to Xxxxxxxxxxxx-LG&E Partners.
3. Guaranty Agreement dated as of October 15, 1993 by TECO Diversified
Inc. to Xxxxxxxxxxxx-LG&E Partners.
