Exhibit 1.2
13,500,000 SHARES
TECO ENERGY, INC.
COMMON STOCK, PAR VALUE $1.00 PER SHARE
UNDERWRITING AGREEMENT
----------------------
June 4, 2002
UBS WARBURG LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
As Representatives of the Several Underwriters
Dear Sirs:
1. Introductory. TECO Energy, Inc., a Florida corporation (the
"COMPANY"), proposes to issue and sell to the Underwriters 13,500,000 shares
(the "FIRM SECURITIES") of its common stock, par value $1.00 per share (the
"COMMON STOCK"), and also proposes to issue and sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 2,025,000 additional
shares (the "OPTIONAL SECURITIES") of its Common Stock, in each case registered
under the registration statement referred to in Section 2(a). The Firm
Securities and the Optional Securities are herein collectively called the
"OFFERED SECURITIES."
The Company hereby agrees with the several Underwriters named in
Schedule A hereto (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. 333-83958), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission (the "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
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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.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission (the "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 as of the date of this
Agreement, the Registration Statement and the Prospectus conform in all material
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes as of the date of this Agreement or will
include as of the date of any amendment or supplement thereto or any Closing
Date 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, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information furnished to
the Company by or on behalf of any Underwriter through the representative(s) of
the Underwriters (the "REPRESENTATIVES"), if any, specifically for use therein.
(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 otherwise), 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
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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
is owned by the Company, directly or through subsidiaries, free from liens,
encumbrances and defects, except for such liens, encumbrances and defects as
would not have a Material Adverse Effect.
(e) The Offered Securities and all outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on the Closing Date (as
defined below), such Offered Securities will have been, validly issued, fully
paid and nonassessable and will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive rights
with respect to its Common Stock.
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any individual,
corporation, partnership, joint venture, trust, limited liability company,
unincorporated organization or other entity (each, a "PERSON") that would give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment.
(g) There are no contracts, agreements or understandings 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.
(h) The Offered Securities have been approved for listing on The
New York Stock Exchange (the "STOCK EXCHANGE"), subject to notice of issuance.
(i) No consent, approval, authorization, or order of, or filing,
registration or qualification with, any governmental agency or body or any court
is required for the consummation of the transactions contemplated by this
Agreement (including in connection with the issuance and sale of the Offered
Securities by the Company), except such as have been obtained and made under the
Act and such as may be required under state securities laws.
(j) The execution, delivery and performance of this Agreement by
the Company and the issuance and sale of the Offered Securities will not result
in a breach or violation by the Company or any Significant Subsidiary of any of
the terms and provisions of, or constitute a default 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 Significant
Subsidiary of the Company or any of their properties, (B) any agreement or
instrument to which the Company or any Significant Subsidiary of the Company is
a party or by which the Company or any such Significant Subsidiary is bound or
to which any of the properties of the Company or any such Significant Subsidiary
is subject, except for such breaches, defaults or violations that
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would not result in a Material Adverse Effect or (C) the charter or by-laws of
the Company or any such Significant Subsidiary; and the Company has full power
and authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from all liens,
encumbrances and defects, except for such liens, encumbrances and defects that
would not have a Material Adverse Effect; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold all leased real or personal
property under valid and enforceable leases with no exceptions, except for such
exceptions that would not have a Material Adverse Effect.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that could
reasonably be expected to have a Material Adverse Effect.
(o) The Company and its subsidiaries own or possess adequate
licenses or other rights to use or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business
now operated by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(p) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
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(q) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or involving the Company, any of its
subsidiaries or any of their respective properties 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 this Agreement; and no such actions, suits or proceedings
are, to the Company's knowledge, threatened or contemplated.
(r) The financial statements of the Company, together with the
related notes to such financial statements, included in the Registration
Statement and 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 except the notes to
the interim financial statements); and any schedules included 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.
(s) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements 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, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(t) 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.
(u) 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.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $22.31 per share,
the respective numbers of shares of Firm Securities set forth opposite the names
of the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price therefor
in federal (same day) funds by
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wire transfer to a bank account designated by the Company and open for the
receipt of funds (and verification of the receipt thereof) on the First Closing
Date (as defined below), at 9:00 A.M., New York time, on June 10, 2002, at the
offices of Xxxxxx & Dodge LLP, Boston, Massachusetts, or at such other place and
time not later than seven full business days thereafter as the Representatives
and the Company determine, such time being herein referred to as the "FIRST
CLOSING DATE". For purposes of Rule 15c6-1 under the Exchange Act, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as the Representatives request and will be made
available for checking and packaging at the office of The Depository Trust
Company or its designated custodian at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from the Representatives given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per share to be paid for the Firm Securities.
The Company agrees to sell to the Underwriters the number of shares of Optional
Securities specified in such notice and each of the Underwriters agrees,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representatives to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives, but shall not be earlier than three (one in case the Optional
Securities are to be delivered on the First Closing Date) nor later than five
full business days after written notice of election to purchase Optional
Securities is given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor in
federal (same day) funds by wire transfer to a bank account designated by the
Company and open for the receipt of funds (and verification of the receipt
thereof) on the Optional Closing Date, at the above offices of Xxxxxx & Dodge
LLP. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as the Representatives request upon reasonable notice
prior to such Optional Closing Date and will be made available for checking and
packaging at the office of The Depository Trust Company or its designated
custodian at a reasonable time in advance of such Optional Closing Date.
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It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the Prospectus.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the Offered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with the offering of the Offered Securities:
(a) The Company will file the Prospectus with the Commission in a
form approved by the Representatives pursuant to and in accordance with Rule
424(b)(2) or Rule 424(b)(5) not later than the second business day following the
execution and delivery of this Agreement.
(b) The Company will advise the Representatives promptly in
writing 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 and 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 or the Rules and Regulations, 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 the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 5 hereof.
(d) As soon as practicable, but 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 the Representatives copies of the
Registration Statement, including all exhibits, the Prospectus, any related
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preliminary prospectus, any related preliminary prospectus supplement, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representatives reasonably request. The Company
will pay the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Offered Securities for sale 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,
however, that it shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction as to which it is not so qualified or to subject itself to
taxation in respect of doing business 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 the Representatives and, upon request, to
each of the other Underwriters, if any, 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 the Representatives (i) as soon as available, a copy
of each report and any definitive proxy statement of the Company filed with 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 website designated by the Company to which the Underwriters
have access, and (ii) from time to time, such other information concerning the
Company as the Representatives 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) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, for any filing fees or other expenses
in connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as the Representatives may designate and the printing
of memoranda relating thereto, for 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, for any fees or expenses in connection
with the listing of the Offered Securities on the New York Stock Exchange, and
for any expenses incurred in distributing the Prospectus, any preliminary
prospectuses, any preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters (in all cases except for
counsel fees for counsel to the Underwriters), PROVIDED, HOWEVER, that the
Underwriters collectively and the Company will each pay fifty percent (50%) of
any expenses relating to the chartering of private aircraft; and, PROVIDED,
FURTHER, HOWEVER, that the Underwriters will pay for any other travel expenses
of the Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers of
Offered Securities.
(i) 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, any additional shares of its
Common Stock or securities convertible into or exchangeable or exercisable for
any shares of its Common Stock, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior written
consent of the
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Representatives for a period beginning at the time of execution of this
Agreement and ending 90 days after the First Closing Date, except issuances of
Common Stock pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each case
outstanding on the date of this Agreement, grants of equity-based awards to its
directors, officers and employees pursuant to the terms of its director or
employee incentive plans or Dividend Reinvestment and Common Stock Purchase Plan
as in effect on the date of this Agreement or issuances of Common Stock pursuant
to the exercise of such options.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities 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, dated the date of delivery thereof, of PricewaterhouseCoopers
LLP confirming that they are independent public accountants 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 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 any unaudited financial statements included in the
Registration Statement;
(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, if any, and any summary of
earnings included 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 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 statements of income;
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(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 such letter, 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 decrease in consolidated net current
assets or net assets or stockholders' equity as compared with amounts shown on
the latest balance sheet incorporated by reference in the Prospectus; or
(D) for the period from the closing date of the latest income
statement included 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 or net income;
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 contained 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 4(a) of this Agreement. No
stop order suspending the effectiveness of the Registration Statement or of any
part thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or any Underwriter,
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 by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), other than a downgrade of the rating of the
Company's senior unsecured debt securities of no more than one rating category
by Xxxxx'x Investors Service, Inc., or any public announcement that any
nationally recognized statistical rating 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
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no implication of a possible downgrading, of such rating); (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; or (vi) any change in United States or
international financial, political or economic conditions if, in the judgment of
the Representatives, the effect of any such event or change referred to in
clause (v) or (vi) above 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, satisfactory in form and substance to the Representatives and to
the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Florida, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Offered Securities have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(iii) 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;
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in connection
with the issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act, or as may be required under
foreign or state securities laws as to which such counsel expresses no opinion;
(v) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated by this
Agreement (including the issuance and sale of the Offered Securities) will not
result in a breach or violation by the Company or any Significant Subsidiary of
any of the terms and provisions of, or constitute a default under, any statute,
any rule or regulation, or any order known to such counsel, of any governmental
agency or body or any court having jurisdiction over the Company or any
Significant Subsidiary or any of their properties, or any agreement or
instrument that is listed as an exhibit to the Company's Annual Report on Form
10-K for the year ended December 31, 2001 or the Company's Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K filed thereafter, or the charter or
by-
11
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;
(vi) The statements in the Prospectus under the captions
"Description of Common Stock," "Description of Preferred Stock" and
"Anti-Takeover Effects of our Articles of Incorporation and Bylaws, Florida Law
and our Rights Plan", insofar as such statements constitute a summary of
documents referred to therein or matters of law, fairly summarize in all
material respects the information called for with respect to such documents and
matters;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company;
(viii) The Offered Securities conform as to legal matters in all
material respects to the statements concerning them in the Prospectus;
(ix) The Company is exempt from the provisions of the Public
Utility Holding Company Act of 1935, as amended (the "PUBLIC UTILITY HOLDING
COMPANY ACT"), except Section 9(a)(2) thereof relating to the acquisition of
securities of other public utility companies;
(x) 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 best of 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;
(xi) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and any amendment or supplement
thereto, as of their respective effective or issue dates, complied as to form in
all material respects with the requirements of the Act and the Rules and
Regulations; it being understood that such counsel need express no opinion as to
the financial statements, including the notes thereto, or other financial data
contained therein; and
(xii) The documents incorporated by reference in the Prospectus, and
each amendment or supplement thereto, when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the Exchange Act and the Rules and Regulations
thereunder; it being understood that such counsel need express no opinion as to
the financial statements, including the notes thereto, or other financial data
contained therein.
In giving such opinion, such counsel may limit its opinion to the law
of the Commonwealth of Massachusetts, the Florida Business Corporation Act and
the federal law of the United States, and such counsel may rely as to all
matters governed by the laws of jurisdictions other than the law of the
Commonwealth of Massachusetts and the federal law of the United States, upon the
opinion of counsel satisfactory to the Representatives. Such counsel may also
state that it has relied upon certificates of public officials and, insofar as
such opinion
12
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 Xxxxxx X. XxXxxxxx, Esq. and may assume 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
its effective date, 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 or as of the
Closing Date, or any amendment or supplement thereto, as of its issue date or 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; and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or the
Prospectus which are not described as required or of any contracts or documents
of a character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which are
not described or filed as required; it being understood that such counsel need
make no statement as to 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 Xxxxxx X. XxXxxxxx, Esq.,
general counsel of the Company, satisfactory in form and substance to the
Representatives and to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Florida, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) Each Significant Subsidiary has been duly incorporated and is
validly existing as a corporation under the laws of the jurisdiction of its
incorporation, and has corporate power and authority to own 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 such 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 her knowledge, beneficially, by the Company, directly
or indirectly through subsidiaries of the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity of
record, and to the best of her knowledge, otherwise; and none of the outstanding
shares of capital stock of any Significant Subsidiary was issued in violation of
the preemptive or, to the best of her knowledge, similar rights of any
securityholder of such Significant Subsidiary;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
13
(iv) The Offered Securities have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(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;
(vi) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court (including without limitation
the Florida Public Service Commission) is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Offered Securities by the Company, except such as have been obtained
and made under the Act, or such as may be required under foreign or state
securities laws as to which such counsel expresses no opinion; and
(vii) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated by this
Agreement (including the issuance and sale of the Offered Securities) will not
result in a breach or violation by the Company or any Significant Subsidiary of
any of the terms and provisions of, or constitute a default by the Company or
any Significant Subsidiary under, any statute, any rule or regulation, or any
order known to such counsel, of any governmental agency or body or any court
having jurisdiction over the Company or any Significant Subsidiary or any of
their properties, or any agreement or instrument that is listed as an exhibit to
the Company's Annual Report on Form 10-K for the year ended December 31, 2001 or
the Company's Quarterly Reports on Form 10-Q and Current Reports on Form 8-K
filed thereafter, or 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.
In giving such opinion, such counsel may limit its 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 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 its
effective date, 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 or as of the Closing
Date, or any amendment or supplement thereto, as of its issue date or 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
14
light of the circumstances under which they were made, not misleading; and such
counsel does not know of any legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a character required
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which are not described or filed as
required; it being understood that such counsel need make no statement as to 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, 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 the
Registration Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are threatened by the Commission and
that, subsequent to the date of 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, 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.
(i) The Representatives shall have received a letter, dated the
Closing Date, substantially in the form of Exhibit A hereto, from each of the
officers and directors of the Company.
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 on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters.
15
6. 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 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 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 each
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 or on behalf of any Underwriter through
the Representatives, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter 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 documents incorporated therein by
reference at or prior to the confirmation of the sale of the Offered Securities
to such Person (but only to the extent that such loss, claim, damage or
liability is finally 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).
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors, each officer who signed the
Registration Statement 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
16
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 such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
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 furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: the selling concession and reallowance figures appearing in the
fourth paragraph under the caption "Underwriting" and the information contained
in the eleventh 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 except to the extent it is
materially prejudiced thereby. 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. 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 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
17
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 or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. 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. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(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 such
Underwriter and each Person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
signed the Registration Statement and to each Person, if any, who controls the
Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under this Agreement
and the aggregate number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total of Offered Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other
Persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement,
to purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities and arrangements satisfactory to the Representatives and the Company
for the purchase of such Offered Securities by other persons are not made within
24 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company, except as provided in
Section 8. As used in this Agreement, the term "Underwriter"
18
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters 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 this Agreement is
terminated pursuant to Section 7 or if 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 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 5(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. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Underwriters, will be
mailed, delivered or telegraphed and confirmed to them at UBS Warburg LLC,
Syndicate Department, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 and Credit Suisse
First Boston Corporation, Attention: Transactions Advisory Group, Eleven Madison
Avenue, New York, N.Y. 10010-3629, 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.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and the Underwriters and their respective successors
and the partners, officers and directors and controlling persons referred to in
Section 6, and no other Person will have any right or obligation hereunder. No
purchaser of the Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
11. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with this Agreement, and any action
taken by the Representatives will be binding upon all the Underwriters.
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.
19
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
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.
20
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 several
Underwriters in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board
President and Chief
Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
UBS WARBURG LLC
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
Acting on behalf of themselves and as the
Representatives of the several Underwriters
21
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
UBS Warburg LLC 4,387,500
Credit Suisse First Boston Corporation 4,387,500
Xxxxxxx Xxxxx Xxxxxx Inc. 2,295,000
CIBC World Markets Corp. 1,350,000
Xxxxxx X. Xxxxx & Co. Incorporated 675,000
Xxxxxx X. Xxxxx & Co., L.P. 405,000
----------
Total 13,500,000
22
SCHEDULE B
1. Tampa Electric Company
2. TECO Transport Corporation
3. TECO Diversified, Inc.
4. TECO Power Services Corporation
23
