Exhibit 4.29
PURCHASE CONTRACT AGREEMENT
BETWEEN
TECO ENERGY, INC.
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
DATED AS OF JANUARY 15, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .......................... 1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .......................... 1
Section 1.1. Definitions ...................................................................... 1
Section 1.2. Compliance Certificates and Opinions ............................................. 11
Section 1.3. Form of Documents Delivered to Purchase Contract Agent ........................... 12
Section 1.4. Acts of Holders; Record Dates .................................................... 12
Section 1.5. Notices .......................................................................... 13
Section 1.6. Notice to Holders; Waiver ........................................................ 14
Section 1.7. Effect of Headings and Table of Contents ......................................... 15
Section 1.8. Successors and Assigns ........................................................... 15
Section 1.9. Separability Clause .............................................................. 15
Section 1.10. Benefits of Agreement ............................................................ 15
Section 1.11. Governing Law .................................................................... 15
Section 1.12. Legal Holidays ................................................................... 15
Section 1.13. Counterparts ..................................................................... 16
Section 1.14. Inspection of Agreement .......................................................... 16
ARTICLE II CERTIFICATE FORMS ................................................................ 16
ARTICLE II CERTIFICATE FORMS ................................................................ 16
Section 2.1. Forms of Certificates Generally .................................................. 16
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication .................. 17
ARTICLE III THE UNITS ........................................................................ 17
ARTICLE III THE UNITS ........................................................................ 17
Section 3.1. Title and Terms; Denominations ................................................... 17
Section 3.2. Rights and Obligations Evidenced by the Certificates ............................. 17
Section 3.3. Execution, Authentication, Delivery and Dating ................................... 18
Section 3.4. Temporary Certificates ........................................................... 19
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Section 3.5. Registration; Registration of Transfer and Exchange .............................. 19
Section 3.6. Book-Entry Interests ............................................................. 20
Section 3.7. Notices to Holders ............................................................... 21
Section 3.8. Appointment of Successor Clearing Agency ......................................... 21
Section 3.9. Definitive Certificates .......................................................... 21
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates ............................... 21
Section 3.11. Persons Deemed Owners ............................................................ 23
Section 3.12. Cancellation ..................................................................... 23
Section 3.13. Establishment of Stripped Units .................................................. 23
Section 3.14. Reestablishment of Normal Units .................................................. 25
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event ...................... 26
Section 3.16. No Consent to Assumption ......................................................... 26
Section 3.17. CUSIP Numbers .................................................................... 26
ARTICLE IV THE TRUST PREFERRED SECURITIES ................................................... 27
ARTICLE IV THE TRUST PREFERRED SECURITIES ................................................... 27
Section 4.1. Payment of Distribution; Rights to Distributions Preserved; Notice ............... 27
Section 4.2. Notice and Voting ................................................................ 28
Section 4.3. Distribution of LLC Preferred Securities or Notes ................................ 28
ARTICLE V THE PURCHASE CONTRACTS; THE REMARKETING .......................................... 29
ARTICLE V THE PURCHASE CONTRACTS; THE REMARKETING .......................................... 29
Section 5.1. Purchase of Shares of Common Stock ............................................... 29
Section 5.2. Payment of Purchase Price; Remarketing ........................................... 31
Section 5.3. Issuance of Shares of Common Stock ............................................... 34
Section 5.4. Adjustment of Settlement Rate. ................................................... 35
Section 5.5. Notice of Adjustments and Certain Other Events ................................... 41
Section 5.6. Termination Event; Notice ........................................................ 41
Section 5.7. Early Settlement ................................................................. 42
Section 5.8. Early Settlement Upon Merger ..................................................... 43
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Section 5.9. Charges and Taxes ................................................................ 45
Section 5.10. No Fractional Shares ............................................................. 45
Section 5.11. Contract Adjustment Payments ..................................................... 45
ARTICLE VI REMEDIES ......................................................................... 47
ARTICLE VI REMEDIES ......................................................................... 47
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment Payments and
to Purchase Common Stock ......................................................... 47
Section 6.2. Restoration of Rights and Remedies ............................................... 47
Section 6.3. Rights and Remedies Cumulative ................................................... 47
Section 6.4. Delay or Omission Not Waiver ..................................................... 47
Section 6.5. Undertaking for Costs ............................................................ 48
Section 6.6. Waiver of Stay or Extension Laws ................................................. 48
ARTICLE VII THE PURCHASE CONTRACT AGENT ...................................................... 48
ARTICLE VII THE PURCHASE CONTRACT AGENT ...................................................... 48
Section 7.1. Certain Duties and Responsibilities .............................................. 48
Section 7.2. Notice of Default ................................................................ 49
Section 7.3. Certain Rights of Purchase Contract Agent ........................................ 49
Section 7.4. Not Responsible for Recitals or Issuance of Units ................................ 50
Section 7.5. May Hold Units ................................................................... 51
Section 7.6. Money Held in Custody ............................................................ 51
Section 7.7. Compensation and Reimbursement ................................................... 51
Section 7.8. Corporate Agent Required; Eligibility ............................................ 51
Section 7.9. Resignation and Removal; Appointment of Successor ................................ 52
Section 7.10. Acceptance of Appointment by Successor ........................................... 53
Section 7.11. Merger, Conversion, Consolidation or Succession to Business ...................... 53
Section 7.12. Preservation of Information; Communications to Holders ........................... 54
Section 7.13. No Obligations of Purchase Contract Agent ........................................ 54
Section 7.14. Tax Compliance ................................................................... 54
ARTICLE VIII SUPPLEMENTAL AGREEMENTS .......................................................... 55
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ARTICLE VIII SUPPLEMENTAL AGREEMENTS .......................................................... 55
Section 8.1. Supplemental Agreements without Consent of Holders ............................... 55
Section 8.2. Supplemental Agreements with Consent of Holders .................................. 55
Section 8.3. Execution of Supplemental Agreements ............................................. 56
Section 8.4. Effect of Supplemental Agreements ................................................ 57
Section 8.5. Reference to Supplemental Agreements ............................................. 57
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE ........................................ 57
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE ........................................ 57
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under
Certain Conditions ............................................................... 57
Section 9.2. Rights and Duties of Successor Corporation ....................................... 57
Section 9.3. Opinion of Counsel Given to Purchase Contract Agent .............................. 58
ARTICLE X COVENANTS ........................................................................ 58
ARTICLE X COVENANTS ........................................................................ 58
Section 10.1. Performance under Purchase Contracts ............................................. 58
Section 10.2. Maintenance of Office or Agency .................................................. 58
Section 10.3. Company to Reserve Common Stock .................................................. 59
Section 10.4. Covenants as to Common Stock ..................................................... 59
Section 10.5. Statements of Officer of TECO as to Default ...................................... 59
Section 10.6. ERISA ............................................................................ 59
EXHIBITS
EXHIBIT A Form of Normal Units Certificate
EXHIBIT B Form of Stripped Units Certificate
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Form of Remarketing Agreement
PURCHASE CONTRACT AGREEMENT, dated as of January 15, 2002,
between TECO Energy, Inc., a Florida corporation (the "Company"), and The Bank
of New York, a New York banking corporation, acting as purchase contract agent
for the Holders of Units from time to time (the "Purchase Contract Agent").
RECITALS
TECO has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by TECO and authenticated, executed on behalf of the
Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of TECO, and to constitute this Agreement a
valid agreement of TECO, in accordance with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of
the Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
and nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(d) the following terms have the meanings given to them
in this Section 1.1(d).
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent-Purchased Treasury Consideration" has the meaning specified in
Section 5.2(b)(i).
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Applicable Ownership Interest" has the meaning set forth in the Pledge
Agreement.
"Applicable Principal Amount" has the meaning set forth in the Pledge
Agreement.
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Board of Directors" means either the Board of Directors of TECO or any
committee of such Board duly authorized to act generally or in any particular
respect for the Board hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of TECO to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, (ii) a copy of a unanimous written consent of the Board of
Directors or (iii) a certificate signed by the authorized officer or officers to
whom the Board of Directors has delegated its authority, and in each case,
delivered to the Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
"Business Day" means a day banks are open for business in New York and
Delaware.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated, whether voting or non-voting) corporate stock or similar
interests in other types of entities.
"Cash Merger" has the meaning set forth in Section 5.8.
"Certificate" means a Normal Units Certificate or a Stripped Units
Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name,
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or in the name of a nominee of that organization, shall be registered a Global
Certificate and which shall undertake to effect book-entry transfers and pledges
of the Units.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Collateral" has the meaning specified in Section 2.1 of the Pledge
Agreement.
"Collateral Agent" means The Bank of New York, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Collateral Substitution" has the meaning specified in Section 3.13.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $1.00 per share, of
TECO.
"Constituent Person" has the meaning specified in Section 5.4(b).
"Contract Adjustment Payments" means the payments payable quarterly in
arrears by TECO on the Payment Dates in respect of each Purchase Contract, equal
to 4.39% per annum of the Stated Amount, computed (i) for any full quarterly
period on the basis of a 360-day year of twelve 30-day months, (ii) for any
period shorter than a full quarterly period for which such payments are
calculated, on the basis of a 30-day month and (iii) for periods of less than a
month, the actual number of days elapsed per 30-day month.
"Corporate Trust Office" means the principal corporate trust office of
the Purchase Contract Agent at which, at any particular time, its corporate
trust business shall be administered, which office at the date hereof is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate
Trust Administration, or such other address as the Trustee may designate from
time to time by notice to the Holders and TECO.
"Coupon Rate" means the percentage rate per annum at which each Note
will bear interest initially.
"Current Market Price" has the meaning specified in Section 5.4(a)(9).
"Custodial Agent" means The Bank of New York, as Custodial Agent under
the Pledge Agreement until a successor Custodial Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and thereafter
"Custodial Agent" shall mean the Person who is then the Custodial Agent
thereunder.
3
"Depositary" means, initially, DTC, until another Clearing Agency
becomes its successor.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning specified in Section 5.7(a).
"Early Settlement Amount" has the meaning specified in section 5.7(a).
"Early Settlement Date" has the meaning specified in Section 5.7(a).
"Early Settlement Rate" has the meaning specified in section 5.7(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations of the Commission promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.4(a)(7).
"Failed Remarketing" has the meaning specified in Section 5.2(b)(ii).
"Fair Market Value" with respect to securities distributed in a
Spin-Off means (a) in the case of any Spin-Off that is effected simultaneously
with an Initial Public Offering of such securities, the initial public offering
price of those securities, and (b) in the case of any other Spin-Off, the
average of the Sale Price of those securities over the first 10 Trading Days
after the effective date of such Spin-Off.
"Global Certificate" means a Certificate that evidences all or part of
the Units and is registered in the name of a Depositary or a nominee thereof.
"Global Trust Preferred Security Certificate" means a certificate
evidencing the rights and obligations of a Holder in respect of the number of
Trust Preferred Securities specified on such certificate and which is registered
in the name of a Clearing Agency or a nominee thereof.
"Guarantee" means the guarantee issued by TECO for the benefit of the
holders of the LLC Preferred Securities pursuant to the Guarantee Agreement
dated as of January 15, 2002 between TECO and The Bank of New York, as Guarantee
Trustee with respect to the LLC Preferred Securities.
"Holder" means the Person in whose name the Unit evidenced by a Normal
Units Certificate and/or a Stripped Units Certificate is registered in the
related Normal Units Register and/or the Stripped Units Register, as the case
may be.
"Indenture" means the Indenture, dated as of August 17, 1998, as
amended through the date hereof and as supplemented by the Sixth Supplemental
Indenture, dated as of the date hereof, between TECO and The Bank of New York,
as trustee.
4
"Indenture Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture, or any successor thereto.
"Initial Public Offering" with respect to a Spin-Off means the first
time securities of the same class or type as the securities being distributed in
such Spin-Off are bona fide offered to the public for cash.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of TECO by the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice-President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary (or other officer performing
similar functions) of TECO and delivered to the Purchase Contract Agent.
"Liquidation Distribution" means the distribution of (a) the LLC
Preferred Securities or (b) if the LLC has been dissolved, the Notes, in each
case in the event of any dissolution of the Trust, to the Holders of the Trust
Preferred Securities on the date of such dissolution from the assets of the
Trust, after satisfaction (whether by payment or reasonable provision for
payment) of liabilities to creditors of the Trust, and which shall be
distributed on a pro rata basis to the Holders of the Trust Preferred Securities
in exchange for such Trust Preferred Securities.
"LLC" means TECO Funding Company II, LLC.
"LLC Agreement" means the Limited Liability Company Agreement of TECO
Funding Company II, LLC, dated as of November 17, 2000, as amended through the
date hereof.
"LLC Common Securities" has the meaning specified in the LLC Agreement.
"LLC Preferred Securities" has the meaning set forth in the LLC
Agreement.
"Merger Early Settlement" has the meaning specified in Section 5.8.
"Merger Early Settlement Amount" has the meaning specified in Section
5.8.
"Merger Early Settlement Date" has the meaning specified in Section
5.8.
"NYSE" has the meaning specified in Section 5.1.
"Normal Unit" means the collective rights and obligations of a Holder
of a Normal Units Certificate in respect of a Trust Preferred Security or the
appropriate Treasury Consideration, as the case may be, subject in each case to
the Pledge thereof, and the related Purchase Contract.
"Normal Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Normal Units specified
on such certificate, substantially in the form of Exhibit A hereto.
"Normal Units Register" and "Normal Units Registrar" have the
respective meanings specified in Section 3.5.
5
"Notes" means the series of subordinated securities of TECO designated
the 5.11% Junior Subordinated Notes due 2007," to be issued by TECO under the
Indenture.
"Officer's Certificate" means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary (or other officer performing similar functions) of TECO and
delivered to the Purchase Contract Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to TECO or an Affiliate and who
shall be reasonably acceptable to the Purchase Contract Agent.
"Opt-Out Treasury Consideration" has meaning specified in Section
5.2(b)(iv).
"Outstanding" or "Outstanding Securities" means, as of the date of
determination, all Normal Units or Stripped Units evidenced by Certificates
theretofore authenticated, executed and delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A)
Stripped Units and (B) Normal Units for which the related
Trust Preferred Security or the appropriate Treasury
Consideration, or a Liquidation Distribution in respect of
such Trust Preferred Security, as the case may be, has been
theretofore deposited with the Purchase Contract Agent in
trust for the Holders of such Normal Units;
(ii) Normal Units and Stripped Units evidenced by
Certificates theretofore cancelled by the Purchase Contract
Agent or delivered to the Purchase Contract Agent for
cancellation or deemed cancelled pursuant to the provisions of
this Agreement; and
(iii) Normal Units and Stripped Units evidenced by
Certificates in exchange for or in lieu of which other
Certificates have been authenticated, executed on behalf of
the Holder and delivered pursuant to this Agreement, other
than any such Certificate in respect of which there shall have
been presented to the Purchase Contract Agent proof
satisfactory to it that such Certificate is held by a
potential purchaser in whose hands the Normal Units or
Stripped Units evidenced by such Certificate are valid
obligations of TECO;
provided, that in determining whether the Holders of the requisite number of the
Normal Units or Stripped Units have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Normal Units or Stripped Units
owned by TECO or any Affiliate of TECO shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Purchase Contract Agent
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Normal Units or Stripped Units which
a Responsible Officer of the Purchase Contract Agent actually knows to be so
owned shall be so disregarded. Normal Units or Stripped Units so owned which
have been pledged in good faith may be regarded as Outstanding Securities if the
pledgee establishes to the satisfaction of the Purchase Contract Agent the
pledgee's right so to act with respect to such Normal Units or Stripped Units
and that the pledgee is not TECO or any Affiliate of TECO.
6
"Payment Date" means each January 15, April 15, July 15 and October 15,
commencing April 15, 2002.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization, government or any agency or political subdivision
thereof or other legal entity or organization.
"Pledge" means the pledge under the Pledge Agreement of the Trust
Preferred Securities, the Treasury Securities or the appropriate Treasury
Consideration, in each case constituting a part of the Units, property, cash,
securities, financial assets and security entitlements of the Collateral
Agreement (as defined in the Pledge Agreement), the LLC Preferred Securities or
Notes delivered to the Collateral Agent upon liquidation of the Trust, and any
proceeds of any of the foregoing.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among TECO, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Purchase Contract Agent, on its own behalf and
as attorney-in-fact for the Holders from time to time of the Units.
"Pledged LLC Preferred Securities" means any LLC Preferred Securities
subject to the Pledge, initially made subject to the Pledge by delivery thereof
to the Collateral Agent upon a liquidation of the Trust.
"Pledged Treasury Consideration" has the meaning set forth in the
Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in the Pledge
Agreement.
"Pledged Trust Preferred Securities" has the meaning set forth in the
Pledge Agreement.
"Predecessor Certificate" means a Predecessor Normal Units Certificate
or a Predecessor Stripped Units Certificate.
"Predecessor Normal Units Certificate" of any particular Normal Units
Certificate means every previous Normal Units Certificate evidencing all or a
portion of the rights and obligations of TECO and the Holder under the Normal
Units evidenced thereby; and, for the purposes of this definition, any Normal
Units Certificate authenticated and delivered under Section 3.10 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Normal Units Certificate
shall be deemed to evidence the same rights and obligations of TECO and the
Holder as the mutilated, destroyed, lost or stolen Normal Units Certificate.
"Predecessor Stripped Units Certificate" of any particular Stripped
Units Certificate means every previous Stripped Units Certificate evidencing all
or a portion of the rights and obligations of TECO and the Holder under the
Stripped Units evidenced thereby; and, for the purposes of this definition, any
Stripped Units Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Stripped Units
Certificate shall be deemed to evidence the same rights and obligations of TECO
and the Holder as the mutilated, destroyed, lost or stolen Stripped Units
Certificate.
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"Property Trustee" means The Bank of New York, as property trustee
under the Trust Agreement, or any successor thereto that is a financial
institution unaffiliated with TECO.
"Prospectus" means the final Prospectus Supplement dated January 9,
2002 of TECO and the Trust relating to the Units, supplementing the Prospectus
dated May 25, 2001 of TECO and the Trust.
"Purchase Contract" when used with respect to any Unit, means the
contract forming a part of such Unit and obligating TECO to (i) sell and the
Holder of such Unit to purchase Common Stock and (ii) pay the Holder Contract
Adjustment Payments in each case on the terms and subject to the conditions set
forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the "Purchase
Contract Agent" in the first paragraph of this instrument until a successor
Purchase Contract Agent shall have become such pursuant to the applicable
provisions of this Agreement, and thereafter "Purchase Contract Agent" shall
mean such Person.
"Purchase Contract Settlement Date" means January 15, 2005.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.3.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section 5.4(a)(7).
"Quarterly Payment Date" means each January 15, April 15, July 15 and
October 15, commencing April 15, 2002.
"Record Date" for the Contract Adjustment Payments and any other
distributions payable on any Payment Date means, as to any Global Certificate,
the Business Day next preceding such Payment Date, and as to any other
Certificate, a day selected by TECO which shall be more than one Business Day
but less than 60 Business Days prior to such Payment Date.
"Redemption Amount" has the meaning set forth in the Trust Agreement.
"Redemption Price" has the meaning set forth in the Trust Agreement.
"Register" means the Normal Units Register and the Stripped Units
Register.
"Registrar" means the Normal Units Registrar and the Stripped Units
Registrar.
"Remarketing Agent" has the meaning specified in Section 5.2(b)(i).
"Remarketing Agreement" means the Remarketing Agreement to be entered
into by and among TECO, the Remarketing Agent and the Purchase Contract Agent.
"Remarketing Date" means the third Business Day preceding October 15,
2004.
"Remarketing Fee" has the meaning specified in Section 5.2(b)(i).
8
"Remarketing Value" has the meaning specified in Section 5.2(b)(i).
"Reorganization Event" has the meaning specified in Section 5.4(b).
"Reset Rate" has the meaning set forth in the Trust Agreement.
"Responsible Officer" means, when used with respect to the Purchase
Contract Agent, any officer within the corporate trust department of the
Purchase Contract Agent (or any successor of the Purchase Contract Agent),
including any Vice President, any assistant Vice President, any assistant
secretary, any assistant treasurer, any trust officer or any other officer of
the Purchase Contract Agent who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Agreement.
"Sale Price" of any securities distributed in a Spin-Off on any Trading
Day means the closing sale price per share (or if no closing price is reported,
the average of the bid and asked prices or, if more than one in either case, the
average of the average bid and average asked prices) on such Trading Day as
reported in composite transactions for the principal U.S. securities exchange on
which such securities are traded or, if the securities are not listed on a U.S.
national or regional securities exchange, as reported by Nasdaq.
"Securities Act" means the Securities Act of 1933 or any successor
legislation, as amended from time to time, and the rules and regulations of the
Commission promulgated thereunder.
"Securities Intermediary" means The Bank of New York in its capacity as
Securities Intermediary under the Pledge Agreement, together with its successors
in such capacity.
"Separate Trust Preferred Securities" has the meaning set forth in the
Pledge Agreement.
"Settlement Date" means any Early Settlement Date or Merger Early
Settlement Date or the Purchase Contract Settlement Date.
"Settlement Rate" has the meaning specified in Section 5.1.
"Special Event" means the occurrence of a "Special Event" under the
Indenture.
"Special Event Redemption" shall mean the date specified by the TECO on
which the Notes are redeemed pursuant to a Special Event Redemption pursuant to
the Indenture.
"Special Event Redemption Date" means the date specified by the Notes
Issuer on which the Notes are redeemed pursuant to a Special Event Redemption
pursuant to the Indenture.
"Spin-Off" means a dividend or other distribution pro rata on our
Common Stock of shares of Capital Stock of any class or series, or similar
equity interests, of or relating to a subsidiary or other business unit of TECO.
9
"Stated Amount" means, with respect to any one Trust Preferred
Security, Normal Unit or Stripped Unit, $25.
"Stripped Unit" means the collective rights and obligations of a holder
of a Stripped Units Certificate in respect of a 1/40 undivided beneficial
ownership interest in a Treasury Security, subject in each case to the Pledge
thereof, and the related Purchase Contract.
"Stripped Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Stripped Units specified
on such certificate, substantially in the form of Exhibit B hereto.
"Stripped Units Register" and "Stripped Units Registrar" have the
respective meanings specified in Section 3.5.
"Subsequent Remarketing" has the meaning set forth in the Remarketing
Agreement.
"Subsequent Remarketing Date" means, provided there has been one or
more Failed Remarketings, the date on which the Remarketing Agent has conducted
a successful remarketing in accordance with Section 5.2 hereof, such date in no
event hereby later than the Business Day.
"TECO" means TECO Energy, Inc. until a successor shall have become such
pursuant to the applicable provision of this Agreement, and thereafter "TECO"
shall mean such successor.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order shall have been entered granting relief under
the Bankruptcy Code or any other similar federal or state law, adjudicating TECO
to be insolvent, or approving as properly filed a petition seeking
reorganization or liquidation of TECO, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days; or (ii) a judgment, decree or court order for
the appointment of a receiver or liquidator or trustee or assignee in bankruptcy
or insolvency of TECO or of its property, or for the winding up or liquidation
of its affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days, or (iii) at any time on or
prior to the Purchase Contract Settlement Date TECO shall file a petition for
relief under the Bankruptcy Code or any other similar federal or state law, or
shall consent to the filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking reorganization or liquidation under the
Bankruptcy Code or any other similar federal or state law, or shall consent to
the filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of its property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due.
"Threshold Appreciation Price" has the meaning specified in Section
5.1.
10
"TIA" means the Trust Indenture Act of 1939, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Trading Day" has the meaning specified in Section 5.1.
"Treasury Consideration" means the Agent-Purchased Treasury
Consideration or the Opt-Out Treasury Consideration.
"Treasury Portfolio" means, with respect to the Applicable Principal
Amount of Notes, (A) if the Special Event Redemption Date occurs prior to the
Purchase Contract Settlement Date, a portfolio of zero-coupon U.S. treasury
securities consisting of (i) principal or interest strips of U.S. treasury
securities that mature on or prior to the Purchase Contract Settlement Date in
an aggregate amount equal to the Applicable Principal Amount and (ii) with
respect to each scheduled interest payment date on the Notes that occurs after
the Special Event Redemption Date, principal or interest strips of U.S. treasury
securities that mature on or prior to such date in an aggregate amount at
maturity equal to the aggregate interest payment that would have been due on the
Applicable Principal Amount of the Notes on such date and (B) if the Special
Event Redemption Date occurs on or after the Purchase Contract Settlement Date,
a portfolio of zero-coupon U.S. treasury securities consisting of (i) principal
or interest strips of U.S. treasury securities that mature on or prior to
November 15, 2004 in an aggregate amount equal to the Applicable Principal
Amount and (ii) with respect to each scheduled interest payment date on the
Notes that occurs after the Special Event Redemption Date, principal or interest
strips of such U.S. treasury securities that mature on or prior to such date in
an aggregate amount equal to the aggregate interest payment that would have been
due on the Applicable Principal Amount of the Notes on such date.
"Treasury Security" means a zero coupon U.S. Treasury security (CUSIP
No. 000000XX0) maturing on November 15, 2004 that will pay $1,000 on such
maturity date.
"Trust" means TECO Capital Trust II, a statutory business trust formed
under the laws of the State of Delaware, or any successor thereto by merger or
consolidation.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of January 15, 2002, of TECO Capital Trust II among TECO Funding Company II,
LLC, as LLC and the trustees named therein for the benefit of the holders from
time to time of undivided beneficial ownership interests in the assets of the
Trust.
"Trust Preferred Securities" means the 5.11% Trust Preferred Securities
of the Trust, each having a stated liquidation amount of $25 per share,
representing, undivided beneficial ownership interests in the assets of the
Trust.
"Underwriting Agreement" means the Underwriting Agreement dated January
9, 2002 between TECO and the Underwriter named therein.
"Unit" means a Normal Unit or a Stripped Unit, as the case may be.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
11
Section 1.2. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or request
by TECO to the Purchase Contract Agent to take any action under any provision of
this Agreement, TECO shall furnish to the Purchase Contract Agent an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and, if
requested by the Purchase Contract Agent, an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that the individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual,
he or she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Purchase Contract
Agent. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of TECO may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of TECO stating that the information
with respect to such factual matters is in the possession of TECO unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
12
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Purchase Contract Agent and,
where it is hereby expressly required, to TECO. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and (subject to
Section 7.1) conclusive in favor of the Purchase Contract Agent and TECO, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner which the Purchase
Contract Agent deems sufficient.
(c) The ownership of Units shall be proved by the Normal
Units Register or the Stripped Units Register, as the case may be.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Purchase Contract Agent or TECO in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) TECO may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or taken
by Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Normal Units and the Outstanding Stripped Units, as
the case may be, on such record date, and no other Holders, shall be entitled to
take the relevant action with respect to the Normal Units or the Stripped Units,
as the case may be, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent TECO from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite number of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, TECO, at its
own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration
13
Date to be given to the Purchase Contract Agent in writing and to each Holder of
Units in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
TECO may designate any date as the "Expiration Date" and from time to time may
change the Expiration Date to any earlier or later day; provided that no such
change shall be effective unless notice of the proposed new Expiration Date is
given to the Purchase Contract Agent in writing, and to each Holder of Units in
the manner set forth in Section 1.6, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, TECO shall be deemed to have initially designated
the 180th day after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Section 1.5. Notices. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided
or permitted by this Agreement to be made upon, given or furnished to, or filed
with:
(1) the Purchase Contract Agent by any Holder or by TECO
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in
writing and personally delivered, mailed, first-class postage prepaid,
telecopied or delivered by overnight air courier guaranteeing next day
delivery, to the Purchase Contract Agent at The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration, telecopy: (000) 000-0000, or at any
other address furnished in writing by the Purchase Contract Agent to
the Holders and TECO; or
(2) TECO by the Purchase Contract Agent or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in
writing and personally delivered, mailed, first-class postage prepaid,
telecopied or delivered by overnight air courier guaranteeing next day
delivery, to TECO at TECO Energy, Inc., TECO Plaza, 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000, telecopy: (000) 000-0000, Attention:
Secretary, or at any other address furnished in writing to the Purchase
Contract Agent by TECO; or
(3) the Collateral Agent by the Purchase Contract Agent,
TECO or any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished
or filed in writing and personally delivered, mailed, first-class
postage prepaid, telecopied or delivered by overnight air courier
guaranteeing next day delivery, addressed to the Collateral Agent at
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Administration, telecopy: (212)
896-7298, or at any other address furnished in writing by the
Collateral Agent to the Purchase Contract Agent, TECO and the Holders;
or
(4) the Property Trustee by TECO shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or
14
delivered by overnight air courier guaranteeing next day delivery,
addressed to the Property Trustee at The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration, or at any other address furnished in writing by the
Property Trustee to TECO; or
(5) the Indenture Trustee by TECO shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or
mailed, first-class postage prepaid, telecopied or delivered by
overnight air courier guaranteeing next day delivery, addressed to the
Indenture Trustee at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx
00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration, or at any other address furnished in writing by the
Indenture Trustee to TECO.
Section 1.6. Notice to Holders; Waiver. Where this Agreement
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the applicable Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Purchase
Contract Agent, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Purchase
Contract Agent shall constitute a sufficient notification for every purpose
hereunder.
Section 1.7. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All covenants and
agreements in this Agreement by TECO shall bind its successors and assigns,
whether so expressed or not.
Section 1.9. Separability Clause. In case any provision in
this Agreement or in the Units shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Agreement. Nothing in this Agreement
or in the Units, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and, to the extent provided
hereby, the Holders, any benefits or any legal or equitable right, remedy or
claim under this Agreement. The Holders from time to time shall be
15
beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Units evidenced by their Certificates by their
acceptance of delivery of such Certificates.
Section 1.11. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to conflicts of laws principles thereof.
Section 1.12. Legal Holidays. In any case where any Payment
Date shall not be a Business Day, then (notwithstanding any other provision of
this Agreement or the Normal Units Certificates) any payments on the Purchase
Contract or on the Trust Preferred Securities shall not be made on such date,
but such payments shall be made on the next succeeding Business Day with the
same force and effect as if made on such Payment Date, provided that no interest
or distributions shall accrue or be payable by TECO for the period from and
after any such Payment Date, except that, if such next succeeding Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day with the same force and effect as if made on
such Payment Date.
In any case where the Purchase Contract Settlement Date shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement or the Certificates), the Purchase Contracts shall not be performed on
such date, but the Purchase Contracts shall be performed on the immediately
following Business Day with the same force and effect as if performed on the
Purchase Contract Settlement Date.
Section 1.13. Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto, each of which, when so
executed and delivered, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
Section 1.14. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times during normal business
hours at the Corporate Trust Office for inspection by any Holder.
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally. The Normal Units
Certificates (including the form of Purchase Contract forming part of the Normal
Units evidenced thereby) shall be in substantially the form set forth in Exhibit
A hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange or quotation
system on which the Normal Units are listed or quoted for trading or any
depositary therefor, or as may, consistently herewith, be determined by the
officers of TECO executing such Normal Units Certificates, as evidenced by their
execution of the Normal Units Certificates.
The definitive Normal Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined
16
by the officers of TECO executing such Normal Units Certificates, consistent
with the provisions of this Agreement, as evidenced by their execution thereof.
The Stripped Units Certificates (including the form of
Purchase Contracts forming part of the Stripped Units evidenced thereby) shall
be in substantially the form set forth in Exhibit B hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by the
rules of any securities exchange or the quotation system on which the Stripped
Units may be listed or quoted for trading or any depositary therefor, or as may,
consistently herewith, be determined by the officers of TECO executing such
Stripped Units Certificates, as evidenced by their execution of the Stripped
Units Certificates.
The definitive Stripped Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of TECO executing such Stripped
Units Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A
NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER
OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY
SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT.
Section 2.2. Form of Purchase Contract Agent's Certificate of
Authentication. The form of the Purchase Contract Agent's certificate of
authentication of the Normal Units shall be in substantially the form set forth
on the form of the Normal Units Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Stripped Units shall be in substantially the form set
forth on the form of the Stripped Units Certificates.
ARTICLE III
THE UNITS
Section 3.1. Title and Terms; Denominations. The aggregate
number of Normal Units and Stripped Units, if any, evidenced by Certificates
authenticated, executed on
17
behalf of the Holders and delivered hereunder is limited to 16,000,000
(18,400,000) if the Underwriters' over-allotment option pursuant to the
Underwriting Agreement is exercised in full), except for Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Certificates pursuant to Section 3.4, 3.5,
3.10, 3.13, 3.14, 5.7 or 8.5.
The Certificates shall be issuable only in registered form and
only in denominations of a single Unit and any integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the
Certificates. (a) Each Normal Units Certificate shall evidence the number of
Normal Units specified therein, with each such Normal Unit representing the
ownership by the Holder thereof of a beneficial ownership interest in a Trust
Preferred Security or the appropriate Treasury Consideration, as the case may
be, subject to the Pledge of such Trust Preferred Security or such Treasury
Consideration, as the case may be, by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and TECO under
one Purchase Contract. The Purchase Contract Agent as attorney-in-fact for, and
on behalf of, the Holder of each Normal Unit shall pledge, pursuant to the
Pledge Agreement, the Trust Preferred Security or the appropriate Treasury
Consideration, as the case may be, forming a part of such Normal Unit, to the
Collateral Agent and grant to the Collateral Agent a security interest in the
right, title, and interest of such Holder in such Trust Preferred Security or
such Treasury Consideration, as the case may be, for the benefit of TECO, to
secure the obligation of the Holder under each Purchase Contract to purchase the
Common Stock of TECO. Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contracts shall not entitle the Holders of
Normal Units Certificates to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any dividends
or other payments or to consent or to receive notice as stockholders in respect
of the meetings of stockholders or for the election of directors of TECO or for
any other matter, or any other rights whatsoever as stockholders of TECO.
(b) Each Stripped Units Certificate shall evidence the
number of Stripped Units specified therein, with each such Stripped Unit
representing the ownership by the Holder thereof of a 1/40 undivided beneficial
ownership interest in a Treasury Security, subject to the Pledge of such
interest in such Treasury Security by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and TECO under
one Purchase Contract. Prior to the purchase of shares of Common Stock under
each Purchase Contract, such Purchase Contracts shall not entitle the Holders of
Stripped Units Certificates to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any dividends
or other payments or to consent or to receive notice as stockholders in respect
of the meetings of stockholders or for the election of directors of TECO or for
any other matter, or any other rights whatsoever as stockholders of TECO.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) Subject to the provisions of Sections 3.13 and 3.14, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
TECO may deliver Certificates executed by TECO to the Purchase Contract Agent
for authentication, execution on behalf of the Holders and delivery, together
with its Issuer Order for authentication of such Certificates, and the Purchase
18
Contract Agent in accordance with such Issuer Order shall authenticate, execute
on behalf of the Holders and deliver such Certificates.
(b) The Certificates shall be executed on behalf of TECO
by the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary (or other officer performing similar functions) of TECO and
delivered to the Purchase Contract Agent. The signature of any of these officers
on the Certificates may be manual or facsimile.
(c) Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of TECO shall
bind TECO, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
(d) No Purchase Contract evidenced by a Certificate shall
be valid until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized signatory of the Purchase Contract Agent, as
such Holder's attorney-in-fact. Such signature by an authorized signatory of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
(e) Each Certificate shall be dated the date of its
authentication.
(f) No Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Purchase Contract
Agent by manual signature, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4. Temporary Certificates. (a) Pending the
preparation of definitive Certificates, TECO shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the Holders, and deliver, in lieu of such definitive
Certificates, temporary Certificates which are in substantially the form set
forth in Exhibit A or Exhibit B hereto, as the case may be, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by the
rules of any securities exchange on which the Normal Units or Stripped Units, as
the case may be, are listed, or as may, consistent herewith, be determined by
the officers of TECO executing such Certificates, as evidenced by their
execution of the Certificates.
(b) If temporary Certificates are issued, TECO will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of TECO and without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, TECO shall execute and deliver to the Purchase Contract
Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange
19
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like number of Normal Units or Stripped Units, as the case may
be, as the temporary Certificate or Certificates so surrendered. Until so
exchanged, the temporary Certificates shall in all respects evidence the same
benefits and the same obligations with respect to the Normal Units or Stripped
Units, as the case may be, evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and
Exchange. (a) The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "Normal Units Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent shall
provide for the registration of Normal Units Certificates and of transfers of
Normal Units Certificates (the Purchase Contract Agent, in such capacity, the
"Normal Units Registrar") and a register (the "Stripped Units Register") in
which, subject to such reasonable regulations as it may prescribe, the Purchase
Contract Agent shall provide for the registration of the Stripped Units
Certificates and transfers of Stripped Units Certificates (the Purchase Contract
Agent, in such capacity, the "Stripped Units Registrar").
(b) Upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office, TECO shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the designated transferee or transferees, and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of like tenor and denominations, and evidencing a like number of
Normal Units or Stripped Units, as the case may be.
(c) At the option of the Holder, Certificates may be
exchanged for other Certificates, of like tenor and denominations and evidencing
a like number of Normal Units or Stripped Units, as the case may be, upon
surrender of the Certificates to be exchanged at the Corporate Trust Office.
Whenever any Certificates are so surrendered for exchange, TECO shall execute
and deliver to the Purchase Contract Agent, and the Purchase Contract Agent
shall authenticate, execute on behalf of the Holder, and deliver the
Certificates which the Holder making the exchange is entitled to receive.
(d) All Certificates issued upon any registration of
transfer or exchange of a Certificate shall evidence the ownership of the same
number of Normal Units or Stripped Units, as the case may be, and be entitled to
the same benefits and subject to the same obligations, under this Agreement as
the Normal Units or Stripped Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
(e) Every Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Purchase
Contract Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to TECO and the Purchase Contract Agent duly
executed, by the Holder thereof or its attorney duly authorized in writing.
(f) No service charge shall be made for any registration
of transfer or exchange of a Certificate, but TECO and the Purchase Contract
Agent may require payment from the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any exchanges
pursuant to Sections 3.6, 3.9 and 8.5 not involving any transfer.
20
(g) Notwithstanding the foregoing, TECO shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate presented or surrendered for
registration of transfer or for exchange on or after the Business Day
immediately preceding the earlier of the Purchase Contract Settlement Date or
the Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Purchase Contract Agent shall (i) if the Purchase Contract Settlement Date
has occurred, deliver the shares of Common Stock issuable in respect of the
Purchase Contracts forming a part of the Units evidenced by such Certificate,
(ii) in the case of Normal Units, if a Termination Event shall have occurred
prior to the Purchase Contract Settlement Date, transfer the Trust Preferred
Securities or the appropriate Treasury Consideration, as applicable, relating to
such Normal Units, or (iii) in the case of Stripped Units, if a Termination
Event shall have occurred prior to the Purchase Contract Settlement Date,
transfer the Treasury Securities relating to such Stripped Units, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five.
Section 3.6. Book-Entry Interests. The Certificates, on
original issuance, will be issued in the form of one or more, fully registered
Global Certificates, to be delivered to the Depositary by, or on behalf of,
TECO. Such Global Certificate shall initially be registered on the books and
records of TECO in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Purchase Contract Agent shall enter into an agreement with the
Depositary if so requested by TECO. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
(a) the provisions of this Section 3.6 shall be in full
force and effect;
(b) TECO shall be entitled to deal with the Clearing
Agency for all purposes of this Agreement (including making Contract Adjustment
Payments and receiving approvals, votes or consents hereunder) as the Holder of
the Units and the sole holder of the Global Certificate(s) and shall have no
obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of this
Section 3.6 shall control; and
(d) the rights of the Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Beneficial Owners and the
Clearing Agency and/or the Clearing Agency Participants. The Clearing Agency
will make book-entry transfers among Clearing Agency Participants.
Section 3.7. Notices to Holders. Whenever a notice or other
communication to the Holders is required to be given under this Agreement, TECO
or TECO's agent shall give such notices and communications to the Holders and,
with respect to any Units registered in the name of a Clearing Agency or the
nominee of a Clearing Agency, TECO or TECO's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
21
Section 3.8. Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Units, TECO may, in its sole discretion, appoint a successor
Clearing Agency with respect to the Units.
Section 3.9. Definitive Certificates. If (i) a Clearing Agency
elects to discontinue its services as securities depositary with respect to the
Units and a successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 3.8, (ii) TECO elects to terminate the
book-entry system through the Clearing Agency with respect to the Units, or
(iii) there shall have occurred and be continuing a default by TECO in respect
of its obligations under one or more Purchase Contracts, then upon surrender of
the Global Certificates representing the Book-Entry Interests with respect to
the Units by the Clearing Agency, accompanied by registration instructions, TECO
shall cause definitive Certificates to be delivered to Beneficial Owners in
accordance with the instructions of the Clearing Agency. TECO shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on and shall be protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen
Certificates. (a) If any mutilated Certificate is surrendered to the Purchase
Contract Agent, TECO shall execute and deliver to the Purchase Contract Agent,
and the Purchase Contract Agent shall authenticate, execute on behalf of the
Holder, and deliver in exchange therefor, a new Certificate at the cost of the
Holder, evidencing the same number of Normal Units or Stripped Units, as the
case may be, and bearing a Certificate number not contemporaneously outstanding.
(b) If there shall be delivered to TECO and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity at the cost of the
Holder as may be required by them to hold each of them and any agent of any of
them harmless, then, in the absence of notice to TECO or the Purchase Contract
Agent that such Certificate has been acquired by a potential purchaser, TECO
shall execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall authenticate, execute on behalf of the Holder, and deliver
to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Normal Units or Stripped Units, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
(c) Notwithstanding the foregoing, TECO shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall (i) if the Purchase Contract
Settlement Date has occurred, deliver the shares of Common Stock issuable in
respect of the Purchase Contracts forming a part of the Units evidenced by such
Certificate, or (ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Trust Preferred Securities, the
appropriate Treasury Consideration or the Treasury Securities, as the case may
be, evidenced thereby, in each case subject to the applicable conditions and in
accordance with the applicable provisions of Article Five.
22
(d) Upon the issuance of any new Certificate under this
Section, TECO and the Purchase Contract Agent may require the payment by the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Purchase Contract Agent) connected therewith.
(e) Every new Certificate issued pursuant to this Section
in lieu of any destroyed, lost or stolen Certificate shall evidence ownership of
the same number of Normal Units or Stripped Unit, as the case may be, and be
entitled to the same benefits and subject to the same obligations, under this
Agreement as the Normal or Stripped Units, as the case may be, evidenced by the
destroyed, lost or mutilated Certificate, whether or not the destroyed, lost or
stolen Certificate (and the Units evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
(f) The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
Section 3.11. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, TECO and the Purchase Contract
Agent, and any agent of TECO or the Purchase Contract Agent, may treat the
Person in whose name such Certificate is registered as the owner of the Units
evidenced thereby, for the purpose of receiving distributions on the Trust
Preferred Securities, receiving Contract Adjustment Payments, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any
such distributions or the Contract Adjustment Payments payable in respect of the
Purchase Contracts constituting part of the Unit evidenced thereby shall be
overdue and notwithstanding any notice to the contrary, and neither TECO nor the
Purchase Contract Agent, nor any agent of TECO or the Purchase Contract Agent,
shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing herein shall prevent TECO, the Purchase Contract Agent or
any agent of TECO or the Purchase Contract Agent, from giving effect to any
written certification, proxy or other authorization furnished by any Clearing
Agency (or its nominee), as a Holder, with respect to such Global Certificate or
impair, as between such Clearing Agency and owners of beneficial ownership
interests in such Global Certificate, the operation of customary practices
governing the exercise of rights of such Clearing Agency (or its nominee) as
Holder of such Global Certificate.
Section 3.12. Cancellation. All Certificates surrendered (a)
for delivery of shares of Common Stock on or after any Settlement Date; (b) upon
the transfer of Trust Preferred Securities, the appropriate Treasury
Consideration or Treasury Securities, as the case may be, after the occurrence
of a Termination Event; (c) upon the registration of a transfer or exchange of a
Unit shall, if surrendered to any Person other than the Purchase Contract Agent,
be delivered to the Purchase Contract Agent and, if not already cancelled, shall
be promptly cancelled by it. TECO may at any time deliver to the Purchase
Contract Agent for cancellation any Certificates previously authenticated,
executed and delivered hereunder which TECO may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order, be
promptly cancelled by the Purchase Contract Agent. No Certificates shall be
authenticated, executed on
23
behalf of the Holder and delivered in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Purchase
Contract Agent shall be disposed of by the Purchase Contract Agent in accordance
with its customary procedures.
If TECO or any Affiliate of TECO shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Establishment of Stripped Units. A Holder may
separate the Pledged Trust Preferred Securities or Pledged Treasury
Consideration, as applicable, from the related Purchase Contracts in respect of
the Normal Units held by such Holder by substituting for such Pledged Trust
Preferred Securities or Pledged Treasury Consideration, as the case may be,
Treasury Securities that will pay an amount equal to the aggregate Stated Amount
of such Normal Units (a "Collateral Substitution"), at any time from and after
the date of this Agreement and on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, by (a) depositing
with the Collateral Agent Treasury Securities having an aggregate principal
amount equal to the aggregate Stated Amount of such Normal Units, and (b)
transferring the related Normal Units to the Purchase Contract Agent accompanied
by a notice to the Purchase Contract Agent, substantially in the form of Exhibit
D hereto, stating that the Holder has transferred the relevant amount of
Treasury Securities to the Collateral Agent and requesting that the Purchase
Contract Agent instruct the Collateral Agent to release the Pledged Trust
Preferred Securities or Pledged Treasury Consideration, as the case may be,
underlying such Normal Units, whereupon the Purchase Contract Agent shall
promptly give such instruction to the Collateral Agent, substantially in the
form of Exhibit C hereto. Notwithstanding the foregoing, a Holder may not
separate the Pledged Trust Preferred Securities or Pledged Treasury
Consideration, as the case may be, from the related Purchase Contracts in
respect of the Normal Units held by such Holder during the periods beginning on
the fourth Business Day prior to the Remarketing Date or any Subsequent
Remarketing Date, as the case may be, and ending on the expiration of the third
Business Day following such dates. Upon receipt of the Treasury Securities
described in clause (a) above and the instruction described in clause (b) above,
in accordance with the terms of the Pledge Agreement, the Collateral Agent will
release to the Purchase Contract Agent, on behalf of the Holder, such Pledged
Trust Preferred Securities or Pledged Treasury Consideration, as the case may
be, from the Pledge, free and clear of TECO's security interest therein, and
upon receipt thereof the Purchase Contract Agent shall promptly:
(i) cancel the related Normal Units;
(ii) transfer the Pledged Trust Preferred Securities or
Pledged Treasury Consideration, as the case may be, to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Stripped Units Certificate executed by TECO to the Holder in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Normal Units.
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Holders who elect to separate the Pledged Trust Preferred
Securities or Pledged Treasury Consideration, as the case may be, from the
related Purchase Contract and to substitute Treasury Securities for such Pledged
Trust Preferred Securities or Pledged Treasury Consideration, as the case may
be, shall be responsible for any fees or expenses payable to the Collateral
Agent for its services as Collateral Agent in respect of the substitution, and
TECO shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions (i) if Treasury
Securities are being substituted for Pledged Trust Preferred Securities, only in
integral multiples of 40 Normal Units, or (ii) if the Collateral Substitutions
occur after the Remarketing Date or any Subsequent Remarketing Date or a Special
Event Redemption, as the case may be, only in integral multiples of Normal Units
such that the Treasury Securities to be deposited and the Treasury Consideration
to be released are in integral multiples of $1,000.
In the event a Holder making a Collateral Substitution
pursuant to this Section 3.13 fails to effect a book-entry transfer of the
Normal Units or fails to deliver a Normal Units Certificate to the Purchase
Contract Agent after depositing Treasury Securities with the Collateral Agent,
the Pledged Trust Preferred Securities or Pledged Treasury Consideration, as the
case may be, constituting a part of such Normal Units, and any distributions on
such Pledged Trust Preferred Securities or Pledged Treasury Consideration, as
the case may be, shall be held in the name of the Purchase Contract Agent or its
nominee in trust for the benefit of such Holder, until such Normal Units are so
transferred or the Normal Units Certificate is so delivered, as the case may be,
or, with respect to a Normal Units Certificate, such Holder provides evidence
satisfactory to TECO and the Purchase Contract Agent that such Normal Units
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Purchase Contract Agent and TECO.
Except as described in this Section 3.13, for so long as the
Purchase Contract underlying a Normal Unit remains in effect, such Normal Unit
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Normal Unit in respect of the Trust Preferred
Security or the appropriate Treasury Consideration, as the case may be, and the
Purchase Contract comprising such Normal Unit may be acquired, and may be
transferred and exchanged, only as a Normal Unit.
Section 3.14. Reestablishment of Normal Units. A Holder of
Stripped Units may reestablish Normal Units at any time from and after the date
of this Agreement and on or before the second Business Day immediately preceding
the Purchase Contract Settlement Date, if a Special Event Redemption has not
occurred, by (a) depositing with the Collateral Agent the Trust Preferred
Securities or the appropriate Treasury Consideration (and identified by
reference to the Treasury Consideration then comprising Normal Units), as the
case may be, then comprising such number of Normal Units as is equal to such
Stripped Units and (b) transferring such Stripped Units to the Purchase Contract
Agent accompanied by a notice to the Purchase Contract Agent, substantially in
the form of Exhibit D hereto, stating that the Holder has transferred the
relevant amount of Trust Preferred Securities or the appropriate Treasury
Consideration, as the case may be, to the Collateral Agent and requesting that
the Purchase Contract Agent instruct the Collateral Agent to release the Pledged
Treasury Securities underlying such Stripped Unit, whereupon the Purchase
Contract Agent shall promptly give such
25
instruction to the Collateral Agent, substantially in the form of Exhibit C
hereto. Notwithstanding the foregoing, a Holder may not reestablish Normal Units
during the periods beginning on the fourth Business Day prior to the Remarketing
Date or any Subsequent Remarketing Date, as the case may be, and ending on the
expiration of the third Business Day following such dates. Upon receipt of the
Trust Preferred Securities or the appropriate Treasury Consideration, as the
case may be, described in clause (a) above and the instruction described in
clause (b) above, in accordance with the terms of the Pledge Agreement, the
Collateral Agent will release to the Purchase Contract Agent, on behalf of the
Holder, such Pledged Treasury Securities from the Pledge, free and clear of
TECO's security interest therein, and upon receipt thereof the Purchase Contract
Agent shall promptly:
(i) cancel the related Stripped Units;
(ii) transfer the Pledged Treasury Securities to the
Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Normal Units Certificate executed by TECO to the Holder in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Stripped Units.
Holders of Stripped Units may reestablish Normal Units (i)
only in integral multiples of 40 Stripped Units for 40 Normal Units or (ii) if
the reestablishment occurs after the Remarketing Date, any Subsequent
Remarketing Date or a Special Event Redemption, only in integral multiples of
Stripped Units such that the Treasury Consideration to be deposited and the
Treasury Securities to be released are in integral multiples of $1,000.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Stripped Unit remains in effect, such Stripped
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Stripped Unit in respect of the Treasury
Security and Purchase Contract comprising such Stripped Unit may be acquired,
and may be transferred and exchanged, only as a Stripped Unit.
Section 3.15. Transfer of Collateral upon Occurrence of
Termination Event. Upon the occurrence of a Termination Event and the transfer
to the Purchase Contract Agent of the Trust Preferred Securities, the
appropriate Treasury Consideration or the Treasury Securities, as the case may
be, underlying the Normal Units and the Stripped Units pursuant to the terms of
the Pledge Agreement, the Purchase Contract Agent shall request transfer
instructions with respect to such Trust Preferred Securities or the appropriate
Treasury Consideration or Treasury Securities, as the case may be, from each
Holder by written request mailed to such Holder at its address as it appears in
the Normal Units Register or the Stripped Units Register, as the case may be.
Upon book-entry transfer of the Normal Units or Stripped Units or delivery of a
Normal Units Certificate or Stripped Units Certificate to the Purchase Contract
Agent with such transfer instructions, the Purchase Contract Agent shall
transfer the Trust Preferred Securities, the appropriate Treasury Consideration
or Treasury Securities, as the case may be, underlying such Normal Units or
Stripped Units, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions. In the event
a Holder of Normal Units or Stripped Units fails to effect such transfer or
delivery, the Trust Preferred
26
Securities, the appropriate Treasury Consideration or Treasury Securities, as
the case may be, underlying such Normal Units or Stripped Units, as the case may
be, and any distributions thereon, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until
such Normal Units or Stripped Units are transferred or the Normal Units
Certificate or Stripped Units Certificate is surrendered or such Holder provides
satisfactory evidence that such Normal Units Certificate or Stripped Units
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Purchase Contract Agent and TECO.
Section 3.16. No Consent to Assumption. Each Holder of a Unit,
by acceptance thereof, shall be deemed expressly to have withheld any consent to
the assumption under Section 365 of the Bankruptcy Code or otherwise, of the
Purchase Contract by TECO, any receiver, liquidator or person or entity
performing similar functions or its trustee in the event that TECO becomes the
debtor under the Bankruptcy Code or subject to other similar state or federal
law providing for reorganization or liquidation.
Section 3.17. CUSIP Numbers. The Company in issuing the Units
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Units or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Units, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
THE TRUST PREFERRED SECURITIES
Section 4.1. Payment of Distribution; Rights to Distributions
Preserved; Notice. A distribution on any Trust Preferred Security or a payment
on any Treasury Consideration, as the case may be, which is paid on any Payment
Date shall, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, be paid to
the Person in whose name the Normal Units Certificate (or one or more
Predecessor Normal Units Certificates) of which such Trust Preferred Security or
the appropriate Treasury Consideration, as the case may be, is a part is
registered at the close of business on the Record Date for such Payment Date.
Each Normal Units Certificate evidencing Trust Preferred
Securities delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other Normal Units Certificate shall carry the
rights to distributions accumulated and unpaid, and to accumulate distributions,
which were carried by the Trust Preferred Securities underlying such other
Normal Units Certificate.
In the case of any Normal Unit with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, or with respect to which Merger Early Settlement of the
underlying Purchase Contract is effected on a Merger Early
27
Settlement Date, or with respect to which a Collateral Substitution is effected,
in each case on a date that is after any Record Date and on or prior to the next
succeeding Payment Date, distributions on the Trust Preferred Security or
payments on the appropriate Treasury Consideration, as the case may be,
underlying such Normal Unit otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Early Settlement, Merger Early
Settlement or Collateral Substitution, as the case may be, and such
distributions shall, subject to receipt thereof by the Purchase Contract Agent,
be payable to the Person in whose name the Normal Units Certificate (or one or
more Predecessor Normal Unit Certificates) was registered at the close of
business on the Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Normal Unit with respect to
which Early Settlement or Merger Early Settlement of the underlying Purchase
Contract is effected, or with respect to which a Collateral Substitution has
been effected, distributions on the related Trust Preferred Securities or
payments on the appropriate Treasury Consideration, as the case may be, that
would otherwise be payable after the applicable Settlement Date or after such
Collateral Substitution, as the case may be, shall not be payable hereunder to
the Holder of such Normal Unit; provided, that to the extent that such Holder
continues to hold the separated Trust Preferred Securities that formerly
comprised a part of such Holder's Normal Units, such Holder shall be entitled to
receive the distributions on such separated Trust Preferred Securities.
Section 4.2. Notice and Voting. Under the terms of the Pledge
Agreement, the Purchase Contract Agent will be entitled to exercise the voting
and any other consensual rights pertaining to the Pledged Trust Preferred
Securities but only to the extent instructed by the Holders as described below.
Upon receipt of notice of any meeting at which holders of Trust Preferred
Securities are entitled to vote or upon any solicitation of consents, waivers or
proxies of holders of Trust Preferred Securities, the Purchase Contract Agent
shall, as soon as practicable thereafter, mail to the Holders of Normal Units a
notice (a) containing such information as is contained in the notice or
solicitation, (b) stating that each Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall be the
same date as the record date for determining the holders of Trust Preferred
Securities entitled to vote) shall be entitled to instruct the Purchase Contract
Agent as to the exercise of the voting rights pertaining to the Pledged Trust
Preferred Securities underlying their Normal Units and (c) stating the manner in
which such instructions may be given. Upon the written request of the Holders of
Normal Units on such record date, the Purchase Contract Agent shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of Pledged Trust
Preferred Securities as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of a Normal
Unit, the Purchase Contract Agent shall abstain from voting the Pledged Trust
Preferred Security underlying such Normal Unit. TECO hereby agrees, if
applicable, to solicit Holders of Normal Units to timely instruct the Purchase
Contract Agent in order to enable the Purchase Contract Agent to vote such
Pledged Trust Preferred Securities.
Section 4.3. Distribution of LLC Preferred Securities or
Notes. (a) Upon a dissolution of the Trust in accordance with the Trust
Agreement, the Liquidation Distribution shall be delivered to the Collateral
Agent in exchange for the Pledged Trust Preferred Securities. Thereafter, the
applicable part of the Liquidation Distribution will be substituted for the
Pledged Trust Preferred Securities, and will be held by the Collateral Agent in
accordance with the terms of the Pledge Agreement to secure the obligations of
each Holder of Normal Units to purchase
28
the Common Stock of TECO under the Purchase Contracts constituting a part of
such Normal Units. The remaining portion of the Liquidation Distribution shall
be distributed to the Holders of Separate Trust Preferred Securities (as defined
in the Pledge Agreement). Following a dissolution of the Trust, the Holders and
the Collateral Agent shall have such security interests, rights and obligations
with respect to the Liquidation Distribution as the Holders and the Collateral
Agent had in respect of the Pledged Trust Preferred Securities as provided in
Articles II, III, IV, V and VI of the Pledge Agreement, and, unless the context
otherwise requires, (i) if the LLC shall not have been dissolved, liquidated or
terminated, any reference herein to the Trust Preferred Securities (or Pledged
Trust Preferred Securities) and the Trust shall be deemed to be a reference to
the LLC Preferred Securities comprising the Liquidation Distribution and the
LLC, respectively, and (ii) if the Trust and the LLC shall have been dissolved,
liquidated or terminated, any reference herein to the Trust Preferred Securities
(or Pledged Trust Preferred Securities) shall be deemed to be a reference to the
Notes comprising the Liquidation Distribution. TECO may cause to be made in any
Normal Units Certificates thereafter to be issued such change in phraseology and
form (but not in substance) as may be appropriate to reflect the liquidation of
the Trust and the substitution of LLC Preferred Securities or Notes, as the case
may be, for Trust Preferred Securities as Collateral.
(b) Upon the occurrence of a Special Event Redemption
prior to the Purchase Contract Settlement Date, the Redemption Price payable on
the Special Event Redemption Date with respect to the Applicable Principal
Amount shall be deposited in the Collateral Account in exchange for the Pledged
Trust Preferred Securities. Thereafter, pursuant to the terms of the Pledge
Agreement, the Collateral Agent shall cause the Securities Intermediary to apply
an amount equal to the Redemption Amount of such Redemption Price to purchase on
behalf of the Holders of Normal Units the Treasury Portfolio and promptly remit
the remaining portion of such Redemption Price, if any, to the Agent for payment
to the Holders of such Normal Units. The Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio will be substituted as Collateral for the Pledged Trust Preferred
Securities, and will be held by the Collateral Agent in accordance with the
terms of the Pledge Agreement to secure the obligation of each Holder of Normal
Units to purchase the Common Stock of TECO under the Purchase Contract
constituting a part of such Normal Units. The Applicable Ownership Interest (as
specified in clause (B) of the definition of such term) of the Treasury
Portfolio shall be transferred by the Securities Intermediary to the Purchase
Contract Agent, free and clear of any lien, pledge or security interest created
by the Pledge Agreement. Following the occurrence of a Special Event Redemption
prior to the Purchase Contract Settlement Date, the Holders of Normal Units and
the Collateral Agent shall have such security interest rights and obligations
with respect to the Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio as the Holders of Normal
Units and the Collateral Agent had in respect of the Trust Preferred Securities,
as the case may be, subject to the Pledge thereof as provided in Articles II,
III, IV, V and VI of the Pledge Agreement, and any reference herein to Trust
Preferred Securities shall be deemed to be reference to such Treasury Portfolio.
TECO may cause to be made in any Normal Units Certificates thereafter to be
issued such change in phraseology and form (but not in substance) as may be
appropriate to reflect the liquidation of the Trust and the substitution of the
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio for Treasury Securities or Trust Preferred
Securities as Collateral. If a Special Event Redemption occurs after the
Purchase Contract Settlement Date, the Treasury Portfolio will not be purchased
and the proceeds
29
applicable to the Trust Preferred Securities will be distributed to the Purchase
Contract Agent for payment to the holders of the Trust Preferred Securities. If
a Special Event Redemption occurs, Holders of Separate Trust Preferred
Securities will directly receive proceeds from the redemption of the LLC
Preferred Securities and/or the Notes, as appropriate.
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
Section 5.1. Purchase of Shares of Common Stock. Each Purchase
Contract shall, unless an Early Settlement has occurred in accordance with
Section 5.7, or a Merger Early Settlement has occurred in accordance with
Section 5.8, obligate the Holder of the related Unit to purchase, and TECO to
sell, on the Purchase Contract Settlement Date at a price equal to $25 (the
"Purchase Price"), a number of newly issued shares of Common Stock equal to the
Settlement Rate unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Unit of which
such Purchase Contract is a part. The "Settlement Rate" is equal to (a) if the
Applicable Market Value (as defined below) is equal to or greater than $30.10
(the "Threshold Appreciation Price"), 0.8305 shares of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price, but is greater than $26.29, the number of shares of Common
Stock per Purchase Contract equal to the Stated Amount of the related Unit
divided by the Applicable Market Value and (c) if the Applicable Market Value is
less than or equal to $26.29, 0.9509 shares of Common Stock per Purchase
Contract, in each case subject to adjustment as provided in Section 5.4 (and in
each case rounded upward or downward to the nearest 1/10,000th of a share). As
provided in Section 5.10, no fractional shares of Common Stock will be issued
upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of the Common Stock on the New York Stock Exchange
(the "NYSE") on such date or, if the Common Stock is not listed for trading on
the NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by TECO.
A "Trading Day" means a day on which the Common Stock (A) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional
30
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Holder of a Unit, by its acceptance thereof, irrevocably
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contract on its behalf as its attorney-in-fact (including the execution
of Certificates on behalf of such Holder), agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under such
Purchase Contracts, and consents to the provisions hereof, irrevocably
authorizes the Purchase Contract Agent as its attorney-in-fact to enter into and
perform the Pledge Agreement on its behalf as its attorney-in-fact, and consents
to and agrees to be bound by the Pledge of the Trust Preferred Securities, the
appropriate Treasury Consideration or the Treasury Securities pursuant to the
Pledge Agreement; provided that upon a Termination Event, the rights of the
Holder of such Unit under the Purchase Contract may be enforced without regard
to any other rights or obligations. Each Holder of a Unit, by its acceptance
thereof, further covenants and agrees, that, to the extent and in the manner
provided in Section 5.2 and the Pledge Agreement, but subject to the terms
thereof, payments in respect of the Trust Preferred Securities, the appropriate
Treasury Consideration or the Treasury Securities to be paid upon settlement of
such Holder's obligations to purchase Common Stock under the Purchase Contract,
shall be paid on the Purchase Contract Settlement Date by the Collateral Agent
to TECO in satisfaction of such Holder's obligations under such Purchase
Contract.
Upon registration of transfer of a Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) under the terms of this Agreement, the Purchase Contracts underlying
such Certificate and the Pledge Agreement, and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying the
Certificates so transferred and the Pledge Agreement. TECO covenants and agrees,
and each Holder of a Certificate, by its acceptance thereof, likewise covenants
and agrees, to be bound by the provisions of this paragraph.
Section 5.2. Payment of Purchase Price; Remarketing. (a)
Unless a Special Event Redemption or a Termination Event has occurred or a
Holder of a Unit has settled the underlying Purchase Contract through an Early
Settlement pursuant to Section 5.7 or a Merger Early Settlement pursuant to
Section 5.8, the settlement of the Purchase Contract underlying a Unit will be
made in accordance with this Section 5.2.
(b) (i) TECO shall engage a nationally recognized
investment bank to act as Remarketing Agent (the "Remarketing Agent") pursuant
to the Remarketing Agreement (substantially in the form attached hereto as
Exhibit E, with such changes and modifications as the parties thereto agree on)
to sell the Trust Preferred Securities of Holders of Normal Units, other than
Holders that have elected not to participate in the remarketing pursuant to (iv)
below, and holders of Separate Trust Preferred Securities that have elected to
participate in the remarketing pursuant to Section 4.5(c) of the Pledge
Agreement. On the seventh Business Day prior to October 15, 2004, the Purchase
Contract Agent shall give Holders of Normal Units and holders of Separate Trust
Preferred Securities notice of remarketing in a daily newspaper in the English
language of general circulation in The City of New York, which is expected to be
The Wall Street Journal, including the specific U.S. Treasury security or
securities (including the CUSIP number and/or the principal terms of such
Treasury security or securities) described in
31
clause (iv) below, that must be delivered by Holders of Normal Units that elect
not to participate in the remarketing pursuant to (iv) below, no later than
10:00 a.m. on the fourth Business Day immediately preceding the Remarketing
Date. The Purchase Contract Agent shall notify, by 3:00 p.m., New York City
time, on the third Business Day immediately preceding the Remarketing Date, the
Remarketing Agent and the Collateral Agent of the aggregate number of Trust
Preferred Securities of Normal Unit Holders to be remarketed. On the third
Business Day immediately preceding the Remarketing Date, no later than by 3:00
p.m. New York City time, pursuant to the terms of the Pledge Agreement, the
Custodial Agent will notify the Remarketing Agent of the aggregate number of
Separate Trust Preferred Securities to be remarketed. No later than 10:00 a.m.,
New York City time, on the first Business Day immediately preceding the
Remarketing Date, the Collateral Agent and the Custodial Agent, pursuant to the
terms of the Pledge Agreement, will deliver for remarketing to the Remarketing
Agent all Trust Preferred Securities to be remarketed. Upon receipt of such
notice from the Purchase Contract Agent and the Custodial Agent and such Trust
Preferred Securities from the Collateral Agent and the Custodial Agent, the
Remarketing Agent will, use its commercially reasonable best efforts to sell
such Trust Preferred Securities on such date at a price equal to at least
100.25% of the Remarketing Value. The Remarketing Agent will use the proceeds
from a successful remarketing to purchase the appropriate U.S. Treasury
securities (the "Agent-Purchased Treasury Consideration") with the CUSIP
numbers, if any, selected by the Remarketing Agent, described in clauses (i)(1)
and (ii)(1) of the definition of Remarketing Value related to the Trust
Preferred Securities of Holders of Normal Units that were remarketed. On or
prior to the third Business Day following the Remarketing Date, the Remarketing
Agent shall deliver such Agent-Purchased Treasury Consideration to the Purchase
Contract Agent, which shall thereupon deliver such Agent-Purchased Treasury
Consideration to the Collateral Agent. The Collateral Agent, for the benefit of
TECO, will thereupon apply such Agent-Purchased Treasury Consideration, in
accordance with the Pledge Agreement, to secure such Holders' obligations under
the Purchase Contracts. The Remarketing Agent will deduct as a Remarketing Fee
for itself an amount not exceeding 25 basis points (0.25%) of the total proceeds
from the remarketing. The Remarketing Agent will remit (1) the portion of the
proceeds from the remarketing attributable to the Separate Trust Preferred
Securities to the holders of Separate Trust Preferred Securities that were
remarketed and (2) the remaining portion of the proceeds, less those proceeds
used to purchase the Agent-Purchased Treasury Consideration, to the Purchase
Contract Agent for the benefit of the Holders of the Normal Units that were
remarketed, all determined on a pro rata basis, in each case, on or prior to the
third Business Day following the Remarketing Date. Holders whose Trust Preferred
Securities are so remarketed will not otherwise be responsible for the payment
of any Remarketing Fee in connection therewith.
The "Remarketing Value" means the sum of (i) the value at the
Remarketing Date or the Subsequent Remarketing Date, as the case may be, of U.S.
Treasury securities that will pay, on or prior to the Quarterly Payment Date
falling on the Purchase Contract Settlement Date, an amount of cash equal to the
aggregate distributions that are scheduled to be payable on that Quarterly
Payment Date, on (1) the Trust Preferred Securities that are included in Normal
Units and (2) the Separate Trust Preferred Securities, in each case, which are
participating in the remarketing, assuming for that purpose that (x) no
distribution payment on the Trust Preferred Securities will then have been
deferred and (y) the distribution rate on the Trust Preferred Securities is
equal to the Coupon Rate, (ii) the value at the Remarketing Date or the
Subsequent Remarketing Date, as the case may be, of U.S. Treasury securities
that will pay, on or prior to the
32
Purchase Contract Settlement Date, an amount of cash equal to the Stated Amount
of (1) such Trust Preferred Securities that are included in Normal Units and (2)
the Separate Trust Preferred Securities, in each case, which are participating
in the remarketing, and (iii) Contract Adjustment Payments or if distribution
payments on the Trust Preferred Securities are then being deferred, the amount
equal to such deferred Contract Adjustment Payments or the aggregate unpaid
distribution payments on (1) the Trust Preferred Securities that are included in
Normal Units and (2) the Separate Trust Preferred Securities, in each case,
which are participating in the remarketing accumulated to the third Business Day
following the Remarketing Date or the Subsequent Remarketing Date, as the case
may be; provided that for purposes of clauses (i) and (ii), above, the
Remarketing Value shall be calculated on the assumptions that (x) the U.S.
Treasury securities are highly liquid and mature on or within 35 days prior to
the Purchase Contract Settlement Date, as determined in good faith by the
Remarketing Agent in a manner intended to minimize the Remarketing Value, and
(y) the U.S. Treasury securities are valued based on the ask-side price of the
Treasury securities at a time between 9:00 a.m. and 11:00 a.m., New York City
time, selected by the Remarketing Agent, on the Remarketing Date or Subsequent
Remarketing Date, as the case may be, as determined on a third-day settlement
basis by a reasonable and customary means selected in good faith by the
Remarketing Agent, plus accrued interest to that date.
(ii) If, in spite of using its reasonable best efforts,
the Remarketing Agent cannot remarket the Trust Preferred Securities included in
the remarketing at a price equal to at least 100.25% of the Remarketing Value,
the remarketing will be deemed to have failed (a "Failed Remarketing"). If a
Failed Remarketing occurs, within three Business Days following the Remarketing
Date, the Remarketing Agent shall return any Trust Preferred Securities
delivered to it to the Collateral Agent and the Custodial Agent, as applicable.
The Remarketing Agent may make one or more attempts to remarket the Trust
Preferred Securities in accordance with the procedures set forth in this Section
5.2(b) and the Remarketing Agreement, provided that (i) the notice of any
Subsequent Remarketing cannot be given until the Failed Remarketing notice
(referred to below) has been published in respect of any immediately preceding
Failed Remarketing and (ii) the settlement date in respect of any Subsequent
Remarketing must fall no later than on the Business Day immediately preceding
the Purchase Contract Settlement Date. If by the Purchase Contract Settlement
Date the Remarketing Agent has failed to remarket the Trust Preferred Securities
at 100.25% of the Remarketing Value, in accordance with the terms of the Pledge
Agreement, the Collateral Agent, for the benefit of TECO, may exercise its
rights as a secured party with respect to such Trust Preferred Securities,
including those actions specified in (b) (iii) below; provided that if upon a
Failed Remarketing, the Collateral Agent exercises such rights for the benefit
of TECO with respect to such Trust Preferred Securities, any accumulated and
unpaid distributions on such Trust Preferred Securities will become payable by
TECO to the Purchase Contract Agent for payment to the Holders of the Normal
Units to which such Trust Preferred Securities relates. Such payment will be
made by TECO on or prior to 11:00 a.m., New York City time, on the Purchase
Contract Settlement Date in lawful money of the United States by certified or
cashiers' check or wire transfer in immediately available funds payable to or
upon the order of the Purchase Contract Agent. TECO will cause a notice of any
Failed Remarketing to be published on the second Business Day following the
Remarketing Date and any Subsequent Remarketing Date, as the case may be, in a
daily newspaper in the English language of general circulation in The City of
New York, which is expected to be The Wall Street Journal.
33
(iii) With respect to any Trust Preferred Securities which
constitute part of Normal Units which are subject to a Failed Remarketing, the
Collateral Agent for the benefit of TECO reserves all of its rights as a secured
party with respect thereto and, subject to applicable law and paragraph (e)
below, may, among other things, (x) retain such Trust Preferred Securities in
full satisfaction of the Holders' obligations under the Purchase Contracts or
(y) sell such Trust Preferred Securities in one or more public or private sales.
(iv) A Holder of Normal Units may elect not to participate
in the remarketing and retain the Trust Preferred Securities underlying such
Units by notifying the Purchase Contract Agent of such election and delivering
the specific U.S. Treasury security or securities (including the CUSIP number
and/or the principal terms of such security or securities) identified by the
Purchase Contract Agent that constitute the U.S. Treasury securities described
in clauses (i) and (ii) of the definition of Remarketing Value relating to the
retained Trust Preferred Securities (as if only such Trust Preferred Securities
were being remarketed) ("Opt-Out Treasury Consideration") to the Purchase
Contract Agent not later than 10:00 a.m. on the fourth Business Day prior to the
Remarketing Date (or, in the case of a Failed Remarketing, not later than 10:00
a.m. on the fourth Business Day immediately prior to the Subsequent Remarketing
Date). Upon receipt thereof by the Purchase Contract Agent, the Purchase
Contract Agent shall deliver such Opt-Out Treasury Consideration to the
Collateral Agent, which will, for the benefit of TECO, thereupon apply such
Opt-Out Treasury Consideration to secure such Holder's obligations under the
Purchase Contracts. On the first Business Day immediately preceding the
Remarketing Date, the Collateral Agent, pursuant to the terms of the Pledge
Agreement, will deliver the Pledged Trust Preferred Securities of such Holder to
the Purchase Contract Agent. Within three Business Days following the
Remarketing Date, (i) if the remarketing was successful, the Purchase Contract
Agent shall distribute such Trust Preferred Securities to the Holders thereof,
and (ii) if there was a Failed Remarketing on such date, the Purchase Contract
Agent will deliver such Trust Preferred Securities to the Collateral Agent,
which will, for the benefit of TECO, thereupon apply such Trust Preferred
Securities to secure such Holders' obligations under the Purchase Contract and
return the Opt-Out Treasury Consideration delivered by such Holders to such
Holders. A Holder that does not so deliver the Opt-Out Treasury Consideration
pursuant to this clause (iv) shall be deemed to have elected to participate in
the remarketing.
(c) Upon the maturity of the Pledged Treasury Securities
underlying the Stripped Units and the Pledged Treasury Consideration underlying
the Normal Units, on the Purchase Contract Settlement Date, the Collateral Agent
shall remit to TECO an amount equal to the aggregate Purchase Price applicable
to such Units, as payment for the Common Stock issuable upon settlement thereof
without receiving any instructions from the Holders of such Units. In the event
the payments in respect of the Pledged Treasury Securities or the Pledged
Treasury Consideration underlying a Unit are in excess of the Purchase Price of
the Purchase Contract being settled thereby, the Collateral Agent will
distribute such excess to the Purchase Contract Agent for the benefit of the
Holder of such Unit when received.
(d) Any distribution to Holders of excess funds and
interest described in paragraphs (b) and (c) above shall be payable at the
office of the Purchase Contract Agent in The City of New York maintained for
that purpose or, at the option of the Holder or the holder of separate Trust
Preferred Securities, as applicable, by check mailed to the address of the
Person
34
entitled thereto at such address as it appears on the Register or by wire
transfer to an account specified by the Holder or the holder of Separate Trust
Preferred Securities, as applicable.
(e) The obligations of each Holder to pay the Purchase
Price are non-recourse obligations and except to the extent paid by Early
Settlement or Merger Early Settlement, are payable solely out of the proceeds of
any Collateral pledged to secure the obligations of the Holders and in no event
will Holders be liable for any deficiency between such payments and the Purchase
Price.
(f) Notwithstanding anything to the contrary herein, TECO
shall not be obligated to issue any Common Stock in respect of a Purchase
Contract or deliver any certificates therefor to the Holder of the related Unit
unless TECO shall have received payment in full of the aggregate Purchase Price
for the shares of Common Stock to be purchased thereunder by such Holder in the
manner herein set forth.
Section 5.3. Issuance of Shares of Common Stock. (a) Unless a
Termination Event shall have occurred on or prior to the Purchase Contract
Settlement Date or an Early Settlement or a Merger Early Settlement shall have
occurred, on the Purchase Contract Settlement Date, upon its receipt of payment
in full of the Purchase Price for the shares of Common Stock purchased by the
Holders pursuant to the foregoing provisions of this Article and subject to
Section 5.4(b), TECO shall issue and deposit with the Purchase Contract Agent,
for the benefit of the Holders of the Outstanding Securities, one or more
certificates representing the newly issued shares of Common Stock registered in
the name of the Purchase Contract Agent (or its nominee) as custodian for the
Holders (such certificates for shares of Common Stock, together with any
dividends or distributions for which a record date and payment date for such
dividend or distribution has occurred after the Purchase Contract Settlement
Date, being hereinafter referred to as the "Purchase Contract Settlement Fund")
to which the Holders are entitled hereunder. Subject to the foregoing, upon
surrender of a Certificate to the Purchase Contract Agent on or after the
Purchase Contract Settlement Date, together with settlement instructions thereon
duly completed and executed, the Holder of such Certificate shall be entitled to
receive in exchange therefor a certificate representing that number of whole
shares of Common Stock which such Holder is entitled to receive pursuant to the
provisions of this Article V (after taking into account all Units then held by
such Holder) together with cash in lieu of fractional shares as provided in
Section 5.10 and any dividends or distributions with respect to such shares
constituting part of the Purchase Contract Settlement Fund, but without any
interest thereon, and the Certificate so surrendered shall forthwith be
cancelled. Such shares shall be registered in the name of the Holder or the
Holder's designee as specified in the settlement instructions provided by the
Holder to the Purchase Contract Agent. If any shares of Common Stock issued in
respect of a Purchase Contract are to be registered to a Person other than the
Person in whose name the Certificate evidencing such Purchase Contract is
registered, no such registration shall be made unless the Person requesting such
registration has paid any transfer and other taxes required by reason of such
registration in a name other than that of the registered Holder of such
Certificate or has established to the satisfaction of TECO that such tax either
has been paid or is not payable.
(b) Prior to the date on which shares of Common Stock are
issued in settlement of Purchase Contracts, the Common Stock underlying the
related Purchase Contracts
35
will not be deemed to be outstanding for any purpose and each Holder will have
no rights with respect to the Common Stock, including voting rights, rights to
respond to tender offers and rights to receive any dividends or other
distributions on the Common Stock, by virtue of holding the Purchase Contract.
Section 5.4. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock
Splits, Etc.
(1) In case TECO shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate,
as in effect at the opening of business on the Business Day following
the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased by
dividing such Settlement Rate by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at
the time outstanding shall not include shares held in the treasury of
TECO but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock.
TECO will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of TECO.
(2) In case TECO shall issue rights, options or warrants
to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Units upon settlement of the
Purchase Contracts underlying such Units) entitling them, for a period
expiring within 45 days after the record date for the determination of
stockholders entitled to receive such rights, options or warrants, to
subscribe for or purchase shares of Common Stock at a price per share
less than the Current Market Price per share of the Common Stock on the
date fixed for the determination of stockholders entitled to receive
such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate in effect at the opening of
business on the day following the date fixed for such determination
shall be increased by dividing such Settlement Rate by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator of which shall be the number
of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such increase to become
effective immediately after the opening of business on the later of the
day following the date fixed for such determination and the date upon
which such rights, options or warrants are first exercisable. For the
purposes of this paragraph (2), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of
TECO but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock.
TECO shall not issue
36
any such rights, options or warrants in respect of shares of Common
Stock held in the treasury of TECO. To the extent shares of Common
Stock are not delivered pursuant to exercise of such rights, options or
warrants, upon the expiration or termination of such rights, options or
warrants, the Settlement Rate shall be readjusted to the Settlement
Rate that would then be in effect had the adjustments made upon
issuance and exercisability of such rights, options or warrants been
made on the basis of delivery of only the number of shares of Common
Stock actually delivered. In determining whether any rights, options or
warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Current Market Price, and in determining
the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received for such rights,
options or warrants, the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Settlement Rate in effect at the opening of business on the day
following the day upon which such subdivision or split becomes
effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Settlement Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such
increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision, split or combination becomes effective.
(4) (i) In case TECO shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend
or distribution paid exclusively in cash, any distribution of shares of
capital stock of any class or series, or similar equity interests, of
or relating to a subsidiary or other business unit in the case of a
Spin-Off referred to in clause (ii) of this paragraph and any dividend
or distribution referred to in paragraph (1) of this Section), the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior
to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction, the
numerator of which shall be the Current Market Price per share of the
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution
filed with the Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock and
the denominator of which shall be such Current Market Price per share
of the Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such
distribution. In any case in which this paragraph (4) is applicable,
paragraph (2) of this Section shall not be applicable.
(ii) In the case of a Spin-Off, the Settlement Rate
in effect immediately before the close of business on the record date
fixed for determination of stockholders
37
entitled to receive that distribution will be increased by multiplying
the Settlement Rate by a fraction, the numerator of which is the
Current Market Price per share of the Common Stock plus the Fair Market
Value of the portion of those shares of Capital Stock or similar equity
interests so distributed applicable to one share of Common Stock and
the denominator of which is the Current Market Price per share of the
Common Stock. Any adjustment to the settlement rate under this
paragraph 4(ii) will be determined at the earlier of (1) the tenth
Trading Day from, and including, the effective date of the Spin-Off and
(2) the date of the Initial Public Offering of the securities subject
of the Spin-Off, if that Initial Public Offering is effected
simultaneously with the Spin-Off, and shall be given retroactive effect
to the opening of business on the day following the date fixed for
determination of stockholders entitled to receive the Spin-Off
Distribution.
(5) In case TECO shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights,
options or warrants referred to in paragraph (2) of this Section, any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section), the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior
to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction, the
numerator of which shall be the Current Market Price per share of the
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution
filed with the Purchase Contract Agent) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of
Common Stock and the denominator of which shall be such Current Market
Price per share of the Common Stock, such adjustment to become
effective (A) immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled
to receive such distribution but (B) in any event, if such evidence of
indebtedness or assets is a right, option or warrant not of the type
described in paragraph (2) of this Section, not earlier than the
exercisability of such right, option or warrant. If such right, option
or warrant is subject to events subsequent to its issuance, upon the
occurrence of which such right, option or warrant shall become
exercisable to purchase different evidences of indebtedness or other
assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different
purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right,
option or warrant (and a termination or expiration of the existing
right, option or warrant without exercise by the holder thereof). In
addition, in the event of any distribution (or deemed distribution) of
rights, options or warrants, or any other event (of the type described
in the preceding sentence) with respect thereto, that resulted in an
adjustment to the Settlement Rate under this paragraph (5), (x) in the
case of any such rights, options or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Settlement Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution, as the case may be, as
though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder of Common Stock with respect
to such rights, options or warrants (assuming such holder had retained
such rights, options or warrants), made to all holders
38
of Common Stock as of the date of such redemption or repurchase, and
(y) in the case of such rights, options or warrants all of which shall
have expired or been terminated without exercise, the Settlement Rate
shall be readjusted as if such rights, options and warrants had never
been issued. In any case in which this paragraph (5) is applicable,
paragraph (2) of this Section shall not be applicable.
(6) In case TECO shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed in a Reorganization Event to which Section 5.4(b)
applies or as part of a distribution referred to in paragraph (5) of
this Section) in an aggregate amount that, combined together with (i)
the aggregate amount of any other distributions to all holders of its
Common Stock made exclusively in cash within the 12 months preceding
the date of payment of such distribution and in respect of which no
adjustment pursuant to this paragraph (6) or paragraph (7) of this
Section has been made and (ii) the aggregate of any cash plus the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution)
of consideration payable in respect of any tender or exchange offer by
TECO or any of its subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date of payment of
such distribution and in respect of which no adjustment pursuant to
this paragraph (6) or paragraph (7) of this Section has been made,
exceeds 12.5% of the product of the Current Market Price per share of
the Common Stock on the date for the determination of holders of shares
of Common Stock entitled to receive such distribution multiplied by the
number of shares of Common Stock outstanding on such date, then, and in
each such case, immediately after the close of business on such date
for determination, the Settlement Rate shall be increased so that the
same shall equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution
by a fraction (i) the numerator of which shall be equal to the Current
Market Price per share of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the combined
amount distributed or payable in the transactions described in clauses
(i) and (ii) above divided by (y) the number of shares of Common Stock
outstanding on such date for determination and (ii) the denominator of
which shall be equal to the Current Market Price per share of the
Common Stock on such date for determination.
(7) In case a tender or exchange offer made by TECO or
any subsidiary of TECO for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders (based on
the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of Purchased Shares) of an aggregate consideration
having a fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution) that combined together with (i) the aggregate of the cash
plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer,
by TECO or any subsidiary of TECO for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such
tender or exchange offer and in respect of which no adjustment pursuant
to
39
paragraph (6) of this Section or this paragraph (7) has been made and
(ii) the aggregate amount of any distributions to all holders of TECO's
Common Stock made exclusively in cash within the 12 months preceding
the expiration of such tender or exchange offer and in respect of which
no adjustment pursuant to paragraph (6) of this Section or this
paragraph (7) has been made, exceeds 12.5% of the product of the
Current Market Price per share of the Common Stock as of the last time
(the "Expiration Time") tenders could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on
the Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration
Time, the Settlement Rate shall be adjusted so that the same shall
equal the rate determined by dividing the Settlement Rate immediately
prior to the close of business on the date of the Expiration Time by a
fraction (i) the numerator of which shall be equal to (x) the product
of (A) the Current Market Price per share of the Common Stock on the
date of the Expiration Time and (B) the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration
Time less (y) the amount of cash plus the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the transactions described in clauses (i) and (ii) above
(assuming in the case of clause (i) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased
Shares), and (ii) the denominator of which shall be equal to the
product of (x) the Current Market Price per share of the Common Stock
as of the Expiration Time and (y) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time
less the number of all shares validly tendered and not withdrawn as of
the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares").
(8) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.4(b)
applies) shall be deemed to involve (i) a distribution of such
securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within
the meaning of paragraph (5) of this Section), and (ii) a subdivision,
split or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision or split becomes
effective" or "the day upon which such combination becomes effective,"
as the case may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph (3) of
this Section).
(9) The "Current Market Price" per share of Common Stock
means (a) on any day, the average of the daily Closing Prices for the 5
consecutive Trading Days selected by TECO commencing not more than 20
Trading Days before, and ending not later than, the earlier of the day
in question and the day before the "ex date" with respect to the
issuance or distribution requiring such computation, (b) in the case of
any Spin-Off that is effected simultaneously with an Initial Public
Offering of the securities being distributed
40
in the Spin-Off, the Sale Price of the Common Stock on the Trading Day
on which the initial public offering price of the securities being
distributed in the Spin-Off is determined, and (c) in the case of any
other Spin-Off, the average of the Sale Prices of the Common Stock over
the first 10 Trading Days after the effective date of such Spin-Off.
For purposes of this paragraph, the term "ex date," when used with
respect to any issuance or distribution, shall mean the first date on
which the Common Stock trades regular way on such exchange or in such
market without the right to receive such issuance or distribution.
(10) All adjustments to the Settlement Rate shall be
calculated to the nearest 1/10,000th of a share of Common Stock (or if
there is not a nearest 1/10,000th of a share to the next lower
1/10,000th of a share). No adjustment in the Settlement Rate shall be
required unless such adjustment would require an increase or decrease
of at least one percent therein; provided, that any adjustments which
by reason of this subparagraph are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. If
an adjustment is made to the Settlement Rate pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7), (8) or (10) of this Section 5.4(a), an
adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of
Settlement Rate in Section 5.1 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction, the numerator of which shall be
the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7), (8) or (10) of this
Section 5.4(a) and the denominator of which shall be the Settlement
Rate immediately before such adjustment; provided, that if such
adjustment to the Settlement Rate is required to be made pursuant to
the occurrence of any of the events contemplated by paragraph (1), (2),
(3), (4), (5), (7), (8) or (10) of this Section 5.4(a) during the
period taken into consideration for determining the Applicable Market
Value, appropriate and customary adjustments shall be made to the
Settlement Rate.
(11) TECO may make such increases in the Settlement Rate,
in addition to those required by this Section, as it considers to be
advisable in order to avoid or diminish any income tax to any holders
of shares of Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase or subscribe for
stock or from any event treated as such for income tax purposes or for
any other reasons.
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event.
In the event of (i) any consolidation or merger of TECO with
or into another Person (other than a merger or consolidation in which
TECO is the continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not
exchanged for cash, securities or other property of TECO or another
corporation), (ii) any sale, transfer, lease or conveyance to another
Person of the property of TECO as an entirety or substantially as an
entirety, (iii) any statutory exchange of securities of TECO with
another Person (other than in connection with a merger or acquisition)
or (iv) any liquidation, dissolution or winding up of TECO other than
as a result of or after the occurrence of a Termination Event (any such
event, a
41
"Reorganization Event") each share of Common Stock covered by each
Purchase Contract forming a part of a Unit immediately prior to such
Reorganization Event shall, after such Reorganization Event, be
converted for purposes of the Purchase Contract into the kind and
amount of securities, cash and other property receivable in such
Reorganization Event (without any interest thereon, and without any
right to dividends or distribution thereon which have a record date
that is prior to the Stock Purchase Date) per share of Common Stock by
a holder of Common Stock that (i) is not a Person with which TECO
consolidated or into which TECO merged or which merged into TECO or to
which such sale or transfer was made, as the case may be (any such
Person, a "Constituent Person"), or an Affiliate of a Constituent
Person to the extent such Reorganization Event provides for different
treatment of Common Stock held by Affiliates of TECO and
non-Affiliates, and (ii) failed to exercise his rights of election, if
any, as to the kind or amount of securities, cash and other property
receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock
held immediately prior to such Reorganization Event by other than a
Constituent Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("Non-electing
Share"), then for the purpose of this Section the kind and amount of
securities, cash and other property receivable upon such Reorganization
Event by each Non-electing Share shall be deemed to be the kind and
amount so receivable per share by a plurality of the Non-electing
Shares). On the Stock Purchase Date, the Settlement Rate then in effect
will be applied to the value on the Stock Purchase Date of such
securities, cash or other property. TECO covenants to and agrees with
the Holders that it shall not cause or permit to occur any
Reorganization Event and no Reorganization Event shall become effective
unless and until the Person formed by such consolidation, merger, or
exchange or the Person which acquires the assets of TECO or, in the
event of a liquidation or dissolution of TECO, TECO or a liquidating
trust created in connection therewith, shall execute and deliver to the
Agent an agreement supplemental hereto providing that the Holder of
each Outstanding Unit shall have the rights provided by this Section
5.4. Such supplemental agreement shall provide for adjustments which,
for events subsequent to the effective date of such supplemental
agreement, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section. The above provisions of this
Section shall similarly apply to successive Reorganization Events.
Section 5.5. Notice of Adjustments and Certain Other Events.
Whenever the Settlement Rate is adjusted as herein provided,
TECO shall:
(i) forthwith compute the Settlement Rate in accordance
with Section 5.4 and prepare and transmit to the Purchase Contract
Agent an Officer's Certificate setting forth the Settlement Rate, the
method of calculation thereof in reasonable detail, and the facts
requiring such adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of
an event that requires an adjustment to the Settlement Rate pursuant to
Section 5.4 (or if TECO is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a
42
written notice to the Holders of the Units of the occurrence of such
event and a statement in reasonable detail setting forth the method by
which the adjustment to the Settlement Rate was determined and setting
forth the adjusted Settlement Rate.
(b) The Purchase Contract Agent shall not at any time be
under any duty or responsibility to any Holder of Units to determine whether any
facts exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed in making the same. The Purchase Contract
Agent shall not be accountable with respect to the validity or value (or the
kind or amount) of any shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any Purchase
Contract; and the Purchase Contract Agent makes no representation with respect
thereto. The Purchase Contract Agent shall not be responsible for any failure of
TECO to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of TECO contained in this Article.
Section 5.6. Termination Event; Notice. The Purchase Contracts
and all obligations and rights of TECO and the Holders thereunder, including,
without limitation, the rights of the Holders to receive, and the obligations of
TECO to pay, Contract Adjustment Payments and the rights and obligations of
Holders to purchase Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or TECO, if, on or prior to the Purchase Contract Settlement
Date, a Termination Event shall have occurred. Upon and after the occurrence of
a Termination Event, the Normal Units shall thereafter represent the right to
receive the Trust Preferred Securities or the appropriate Treasury
Consideration, as the case may be, forming a part of such Normal Units, and the
Stripped Units shall thereafter represent the right to receive the Treasury
Securities forming a part of such Stripped Units, in each case in accordance
with the provisions of Section 4.3 of the Pledge Agreement. Upon the occurrence
of a Termination Event, TECO shall promptly but in no event later than two
Business Days thereafter give written notice to the Purchase Contract Agent, the
Collateral Agent and to the Holders, at their addresses as they appear in the
Register.
Section 5.7. Early Settlement. (a) Subject to and upon
compliance with the provisions of this Section 5.7, Purchase Contracts
underlying Units having an aggregate Stated Amount equal to $1,000 or an
integral multiple thereof, may, at the option of the Holder thereof, be settled
early ("Early Settlement") (unless a Special Event Redemption has occurred) on
or prior to the seventh Business Day immediately preceding the Remarketing Date
or any Subsequent Remarketing Date; and if either the Normal Units have been
converted into Stripped Units or if a Special Event Redemption has occurred and
the Treasury Portfolio has become a component of the Normal Units, Purchase
Contracts underlying Normal Units may be settled early on or prior to the second
Business Day immediately preceding the Purchase Contract Settlement Date, but
only in an aggregate amount of $1,000 or in an integral multiple thereof. In
order to exercise the right to effect Early Settlement with respect to any
Purchase Contracts, the Holder of the Certificate evidencing the related Units
shall deliver such Certificate to the Purchase Contract Agent at the Corporate
Trust office duly endorsed for transfer to TECO or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment (payable to TECO in immediately available funds in an amount (the
43
"Early Settlement Amount") equal to (i) the product of (x) the Stated Amount of
such Units times (y) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement, with no payment by TECO or
adjustment of the Early Settlement Amount to be made upon Early Settlement of
any Purchase Contract on account of any Contract Adjustment Payments accrued on
such Purchase Contract or on account of any dividends on the Common Stock issued
upon such Early Settlement, plus (ii), if such delivery is made with respect to
any Purchase Contracts during the period from the close of business on any
Record Date for any Payment Date to the opening of business on such Payment
Date, an amount equal to the Contract Adjustment Payments payable on such
Payment Date with respect to such Purchase Contracts.
If the foregoing requirements are first satisfied with respect
to Purchase Contracts underlying any Unit at or prior to 5:00 p.m., New York
City time, on a Business Day, such day shall be the "Early Settlement Date" with
respect to such Unit and if such requirements are first satisfied after 5:00
p.m., New York City time, on a Business Day or on a day that is not a Business
Day, the "Early Settlement Date" with respect to such Units shall be the next
succeeding Business Day.
(b) Upon Early Settlement of any Purchase Contract by the
Holder of the related Units, TECO shall issue, and the Holder shall be entitled
to receive, 0.8305 shares of Common Stock on account of such Purchase Contract
(the "Early Settlement Rate"). The Early Settlement Rate shall be adjusted in
the same manner and at the same time as the Settlement Rate is adjusted. As
promptly as practicable after Early Settlement of Purchase Contracts in
accordance with the provisions of this Section 5.7, TECO shall issue and shall
deliver to the Purchase Contract Agent at the Corporate Trust Office a
certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 5.10.
(c) No later than the third Business Day after the
applicable Early Settlement Date, TECO shall cause (i) the shares of Common
Stock issuable upon Early Settlement of Purchase Contracts to be issued and
delivered, and (ii) the related Pledged Trust Preferred Securities or Pledged
Treasury Consideration, in the case of Normal Units, or the related Pledged
Treasury Securities, in the case of Stripped Units, to be released from the
Pledge by the Collateral Agent and transferred, in each case, to the Purchase
Contract Agent for delivery to the Holder thereof or the Holder's designee.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt of shares of Common Stock from TECO and the Pledged Trust
Preferred Securities, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, from the Collateral Agent, as applicable, the
Purchase Contract Agent shall, in accordance with the instructions provided by
the Holder thereof on the applicable form of Election to Settle Early on the
reverse of the Certificate evidencing the related Units, (i) transfer to the
Holder the Pledged Trust Preferred Securities, Pledged Treasury Consideration or
Pledged Treasury Securities, as the case may be, forming a part of such Units,
and (ii) deliver to the Holder a certificate or certificates for the full number
of shares of Common Stock issuable upon such Early Settlement together with
payment in lieu of any fraction of a share, as provided in Section 5.10.
44
(e) In the event that Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Early Settlement TECO shall execute and the Purchase
Contract Agent shall authenticate, countersign and deliver to the Holder
thereof, at the expense of TECO, a Certificate evidencing the Units as to which
Early Settlement was not effected.
Section 5.8. Early Settlement Upon Merger. (a) In the event of
a merger or consolidation of TECO of the type described in clause (i) of Section
5.4(b) in which the Common Stock outstanding immediately prior to such merger or
consolidation is exchanged for consideration consisting of at least 30% cash or
cash equivalents (any such event a "Cash Merger"), then TECO (or the successor
to TECO hereunder) shall be required to offer the Holder of each Unit the right
to settle the Purchase Contract underlying such Unit prior to the Purchase
Contract Settlement Date ("Merger Early Settlement") as provided herein. On or
before the fifth Business Day after the consummation of a Cash Merger, TECO or,
at the request and expense of TECO, the Purchase Contract Agent, shall give all
Holders notice of the occurrence of the Cash Merger and of the right of Merger
Early Settlement arising as a result thereof. TECO shall also deliver a copy of
such notice to the Purchase Contract Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more
than 30 calendar days after the date of such notice, on which the
Merger Early Settlement will be effected (the "Merger Early Settlement
Date");
(ii) the date, which shall be three Business Days prior to
the Merger Early Settlement Date, by which the Merger Early Settlement
right must be exercised;
(iii) the Settlement Rate in effect as a result of such
Cash Merger and the kind and amount of securities, cash and other
property receivable by the Holder upon settlement of each Purchase
Contract pursuant to Section 5.4(b);
(iv) a statement to the effect that all or a portion of
the Purchase Price payable by the Holder to settle the Purchase
Contract will be offset against the amount of cash so receivable upon
exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the
Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder
shall deliver to the Purchase Contract Agent at the Corporate Trust Office three
Business Days before the Merger Early Settlement Date, at 5:00 p.m., New York
City time the Certificate(s) evidencing the Units with respect to which the
Merger Early Settlement right is being exercised duly endorsed for transfer to
TECO or in blank with the form of Election to Settle Early on the reverse
thereof duly completed and accompanied by payment (payable to TECO in
immediately available funds in an amount equal to the Early Settlement Amount
less the amount of cash that otherwise would be deliverable by TECO or its
successor upon settlement of the Purchase Contract in lieu of Common Stock
pursuant to Section 5.4(b) and as described in the notice to Holders (the
"Merger Early Settlement Amount").
45
(c) On the Merger Early Settlement Date TECO shall
deliver or cause to be delivered (i) the net cash, securities and other property
to be received by such exercising Holder, equal to the Settlement Rate as
adjusted pursuant to Section 5.4, in respect of the number of Purchase Contracts
for which such Merger Early Settlement right was exercised, and (ii) the related
Pledged Trust Preferred Securities or Pledged Treasury Consideration, in the
case of Normal Units, or Pledged Treasury Securities, in the case of Stripped
Units, to be released from the Pledge by the Collateral Agent and transferred,
in each case, to the Purchase Contract Agent for delivery to the Holder thereof
or its designee. In the event a Merger Early Settlement right shall be exercised
by a Holder in accordance with the terms hereof, all references herein to
Purchase Contract Settlement Date shall be deemed to refer to such Merger Early
Settlement Date.
(d) Upon Merger Early Settlement of any Purchase
Contracts, and subject to receipt of such net cash, securities or other property
from TECO and the Pledged Trust Preferred Securities, Pledged Treasury
Consideration or Pledged Treasury Securities, as the case may be, from the
Collateral Agent, as applicable, the Purchase Contract Agent shall, in
accordance with the instructions provided by the Holder thereof on the
applicable form of Election to Settle Early on the reverse of the Certificate
evidencing the related Units, (i) transfer to the Holder the Pledged Trust
Preferred Securities, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, forming a part of such Units, and (ii) deliver
to the Holder such net cash, securities or other property issuable upon such
Merger Early Settlement together with payment in lieu of any fraction of a
share, as provided in Section 5.10.
(e) In the event that Merger Early Settlement is effected
with respect to Purchase Contracts underlying less than all the Units evidenced
by a Certificate, upon such Merger Early Settlement TECO (or the successor to
TECO hereunder) shall execute and the Purchase Contract Agent shall
authenticate, countersign and deliver to the Holder thereof, at the expense of
TECO, a Certificate evidencing the Units as to which Merger Early Settlement was
not effected.
Section 5.9. Charges and Taxes. TECO will pay all stock
transfer and similar taxes attributable to the initial issuance and delivery of
the shares of Common Stock pursuant to the Purchase Contracts; provided, that
TECO shall not be required to pay any such tax or taxes which may be payable in
respect of any exchange of or substitution for a Certificate evidencing a Unit
or any issuance of a share of Common Stock in a name other than that of the
registered Holder of a Certificate surrendered in respect of the Units evidenced
thereby, other than in the name of the Purchase Contract Agent, as custodian for
such Holder, and TECO shall not be required to issue or deliver such share
certificate or certificates unless and until the Person or Persons requesting
the transfer or issuance thereof shall have paid to TECO the amount of such tax
or shall have established to the satisfaction of TECO that such tax has been
paid.
Section 5.10. No Fractional Shares. No fractional shares or
scrip representing fractional shares of Common Stock shall be issued or
delivered upon settlement on the Purchase Contract Settlement Date or upon Early
Settlement or Merger Early Settlement of any Purchase Contracts. If Certificates
evidencing more than one Purchase Contract shall be surrendered for settlement
at one time by the same Holder, the number of full shares of Common Stock which
shall be delivered upon settlement shall be computed on the basis of the
aggregate number of
46
Purchase Contracts evidenced by the Certificates so surrendered. Instead of any
fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the applicable Settlement Date or upon
Early Settlement or Merger Early Settlement, TECO, through the Purchase Contract
Agent, shall make a cash payment in respect of such fractional shares in an
amount equal to the value of such fractional shares times the Applicable Market
Value. TECO shall provide the Purchase Contract Agent from time to time with
sufficient funds to permit the Purchase Contract Agent to make all cash payments
required by this Section 5.10 in a timely manner.
Section 5.11. Contract Adjustment Payments. (a) TECO shall
pay, on each Payment Date, the Contract Adjustment Payments payable in respect
of each Purchase Contract to the Person in whose name a Certificate (or one or
more Predecessor Certificates) is registered at the close of business on the
Record Date next preceding such Payment Date in such currency of the United
States as at the time of payment shall be legal tender for the payment of public
and private debts. The Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York maintained for
that purpose or, at the option of TECO, by check mailed to the address of the
Person entitled thereto at such Person's address as it appears on the Normal
Units Register or the Stripped Units Register. If any date on which Contract
Adjustment Payments are to be made is not a Business Day, then payment of the
Contract Adjustment Payments payable on such date will be made on the next day
that is a Business Day (and without any interest in respect of any such delay),
except that, if such Business Day is in the next calendar year, such payment
will be made on the preceding Business Day.
Upon the occurrence of a Termination Event, TECO's obligation
to pay Contract Adjustment Payments (including any accrued and deferred Contract
Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as a
result of a Collateral Substitution or the reestablishment of Normal Unit
Certificate) any other Certificate shall carry the right to accrued and unpaid
Contract Adjustment Payments, and the right to accrue Contract Adjustment
Payments, which rights were carried by the Purchase Contracts underlying such
other Certificates.
Subject to Section 5.7, in the case of any Unit with respect
to which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Contract Adjustment Payments shall be paid to the Person in
whose name the Certificate evidencing such Unit (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Unit with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, Contract Adjustment
Payments that would otherwise be payable after the Early Settlement Date with
respect to such Purchase Contract shall not be payable.
47
(b) Provided no event of default under the Indenture has
occurred and is continuing, Contract Adjustment Payments may be deferred, at the
discretion of TECO, but in no event later than the Purchase Contract Settlement
Date. Any Contract Adjustment Payments so deferred, shall be treated as
additional Contract Adjustment Payments at the rate of 9.50% per annum and
payable on the same basis as the Contract Adjustment Payments, compounded on
each succeeding Payment Date until paid in full, provided that, except as
otherwise expressly provided in the first sentence of the preceding paragraph,
in the case of any Unit with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, the Holder will have
no right to receive any accrued or deferred Contract Adjustment Payments. During
any period when Contract Adjustment Payments are deferred, TECO may not declare
or pay any dividend or distribution on its capital stock or redeem, repurchase,
acquire or make a liquidation payment on any of its capital stock (other than
(i) as a result of a reclassification of its capital stock or the exchange or
conversion of one class or series of its capital stock for another class or
series of its capital stock, (ii) any payment of a rights dividend in connection
with the implementation of a shareholder rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (iii) purchases of its common stock related to the
issuance of such stock under any of TECO's benefit plans for its directors,
officers or employees, (iv) obligations under any dividend reinvestment plan or
stock purchase plan of TECO, (v) the purchase of fractional interests in shares
of its capital stock pursuant to the conversion or exchange provisions of such
capital stock or security being converted or exchanged or (vi) dividends or
distributions in its common stock).
(c) Nothing contained in this Section 5.11 or elsewhere
in this Agreement or in the Units is intended to or shall impair, as among TECO,
its creditors and the Holders, the obligation of TECO, which is absolute and
unconditional, to pay to the Holders such Contract Adjustment Payments on the
Units as and when the same shall become due and payable in accordance with their
terms, nor shall anything herein or therein prevent the Purchase Contract Agent
or any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Agreement.
ARTICLE VI
REMEDIES
Section 6.1. Unconditional Right of Holders to Receive
Contract Adjustment Payments and to Purchase Common Stock. The Holder of any
Unit shall have the right, which is absolute and unconditional, (i) (subject to
any required payment by such Holder of Contract Adjustment Payments pursuant to
Section 5.7(a)), to receive each Contract Adjustment Payment with respect to the
Purchase Contract constituting a part of such Unit on the respective Payment
Date for such Unit and (ii) to purchase Common Stock pursuant to the Purchase
Contract constituting a part of such Unit and to institute suit for the
enforcement of any such Contract Adjustment Payment and right to purchase Common
Stock, and such rights shall not be impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies. If any Holder
has instituted any proceeding to enforce any right or remedy under this
Agreement and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to such
48
Holder, then and in every such case, subject to any determination in such
proceeding, TECO and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates in the last paragraph of Section 3.10, no
right or remedy herein conferred upon or reserved to the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver. No delay or
omission of any Holder to exercise any right or remedy upon a default shall
impair any such right or remedy or constitute a waiver of any such right. Every
right and remedy given by this Article or by law to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by such Holders.
Section 6.5. Undertaking for Costs. All parties to this
Agreement agree, and each Holder of a Unit, by its acceptance of such Unit shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in any
suit against the Purchase Contract Agent for any action taken, suffered or
omitted by it as Purchase Contract Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section shall not apply to any suit
instituted by TECO, to any suit instituted by the Purchase Contract Agent, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% of the Outstanding Units, or to any suit instituted by any Holder
for the enforcement of distributions on any Trust Preferred Securities or
Contract Adjustment Payments on any Purchase Contract on or after the respective
Payment Date therefor in respect of any Unit held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contract constituting part of any Unit held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws. TECO covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Agreement; and TECO (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, but will suffer and permit the
execution of every such power as though no such law had been enacted.
49
ARTICLE VII
THE PURCHASE CONTRACT AGENT
Section 7.1. Certain Duties and Responsibilities. (a) (1) The
Purchase Contract Agent undertakes to perform, with respect to the Units and
Separate Trust Preferred Securities, such duties and only such duties as are
specifically set forth in this Agreement and the Pledge Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Purchase Contract Agent; and
(2) in the absence of bad faith, willful misconduct or negligence on
its part, the Purchase Contract Agent may, with respect to the Units and
Separate Trust Preferred Securities, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement, but in the case of any
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Purchase Contract Agent, the Purchase
Contract Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Purchase Contract Agent from liability for its own
negligent action, its own negligent failure to act, its own bad
faith, or its own willful misconduct, except that:
(1) this paragraph shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Purchase Contract Agent was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement shall require the Purchase
Contract Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if adequate indemnity is
not provided to it.
(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Purchase Contract Agent
shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute
and deliver the Pledge Agreement in its capacity as Purchase
Contract Agent.
Section 7.2. Notice of Default. Within 30 days after the occurrence
of any default by TECO hereunder of which a Responsible Officer of the Purchase
Contract Agent has actual knowledge, the Purchase Contract Agent shall transmit
by mail to TECO and the Holders of Units, as their names and addresses appear in
the Register, notice of such default hereunder, unless such default shall have
been cured or waived.
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Section 7.3. Certain Rights of Purchase Contract Agent. Subject to
the provisions of Section 7.1:
(a) the Purchase Contract Agent may, in absence of bad faith,
conclusively rely and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of TECO mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of TECO may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Purchase
Contract Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Purchase
Contract Agent (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, conclusively rely upon an Officer's
Certificate of TECO;
(d) the Purchase Contract Agent may consult with counsel of its
selection, and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Purchase Contract Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Purchase Contract Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or matters related
to the execution, delivery and performance of the Purchase Contracts as it may
see fit, and, if the Purchase Contract Agent shall determine to make such
further inquiry or investigation, it shall be given a reasonable opportunity to
examine the books, records and premises of TECO, personally or by agent or
attorney;
(f) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or an Affiliate of the Purchase Contract Agent and the
Purchase Contract Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder;
(g) the Purchase Contract Agent shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(h) the Purchase Contract Agent shall not be deemed to have notice
of any Default or Event of Default unless a Responsible Officer of the Purchase
Contract Agent has actual knowledge thereof or unless written notice of any
event which is in fact such a default is
51
received by the Trustee at the Corporate Trust Office of the Purchase Contract
Agent, and such notice references the Units and this Agreement;
(i) the rights, privileges, protections, immunities and benefits
given to the Purchase Contract Agent, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the Purchase
Contract Agent in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(j) the Purchase Contract Agent may request that TECO deliver an
Officer's Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Agreement, which Officer's Certificate may be signed by any person authorized to
sign an Officer's Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 7.4. Not Responsible for Recitals or Issuance of Units. The
recitals contained herein and in the Certificates shall be taken as the
statements of TECO and the Purchase Contract Agent assumes no responsibility for
their accuracy. The Purchase Contract Agent makes no representations as to the
validity or sufficiency of either this Agreement or of the Units, or of the
Pledge Agreement or the Pledge. The Purchase Contract Agent shall not be
accountable for the use or application by TECO of the proceeds in respect of the
Purchase Contracts.
Section 7.5. May Hold Units. Any Registrar or any other agent of
TECO, or the Purchase Contract Agent and its Affiliates, in their individual or
any other capacity, may become the owner or pledgee of Units and may otherwise
deal with TECO, the Collateral Agent or any other Person with the same rights it
would have if it were not Registrar or such other agent, or the Purchase
Contract Agent.
Section 7.6. Money Held in Custody. Money held by the Purchase
Contract Agent in custody hereunder need not be segregated from the Purchase
Contract Agent's other funds except to the extent required by law or provided
herein. The Purchase Contract Agent shall be under no obligation to invest or
pay interest on any money received by it hereunder except as otherwise agreed in
writing with TECO.
Section 7.7. Compensation and Reimbursement. TECO agrees:
(1) to pay to the Purchase Contract Agent from time to time such
compensation for all services rendered by it hereunder as shall from time
to time be agreed upon by TECO and the Purchase Contract Agent;
(2) except as otherwise expressly provided herein, to reimburse the
Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent
in accordance with any provision of this Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of
its Purchase Contract Agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
52
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with the acceptance
or administration of its duties hereunder, including the costs and
expenses of defending itself against any claim (whether asserted by TECO,
or any Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The provisions of this Section 7.7 shall survive the termination of
this Agreement and the resignation or removal of the Purchaser Contract Agent.
Section 7.8. Corporate Agent Required; Eligibility. There shall at
all times be an Purchase Contract Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having (or being a member of a bank holding
company having) a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and having a
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation, qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Purchase Contract Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving
written notice thereof to TECO 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Purchase Contract
Agent required by Section 7.10 shall not have been delivered to the Purchase
Contract Agent within 30 days after the giving of such notice of resignation,
the resigning Purchase Contract Agent may petition (at the expense of the
Company) any court of competent jurisdiction for the appointment of a successor
Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of
the Holders of a majority in number of the Outstanding Securities delivered to
the Purchase Contract Agent and TECO. If an instrument of acceptance by a
successor Purchase Contract Agent shall not have been delivered to the Purchase
Contract Agent within 30 days after the giving of such notice of removal, the
Trustee being removed may petition (at the expense of the Company) any
53
court of competent jurisdiction for the appointment of a successor Purchase
Contract Agent with respect to the Units.
(d) If at any time
(1) the Purchase Contract Agent fails to comply with Section 310(b)
of the TIA, as if the Purchase Contract Agent were an indenture trustee
under an indenture qualified under the TIA, after written request therefor
by TECO or by any Holder who has been a bona fide Holder of a Unit for at
least six months, or
(2) the Purchase Contract Agent shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by
TECO or by any such Holder, or
(3) the Purchase Contract Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Purchase Contract Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (x) TECO by a Board Resolution may remove the Purchase
Contract Agent, or (y) any Holder who has been a bona fide Holder of a Unit for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Purchase
Contract Agent and the appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Purchase Contract Agent for any cause, TECO, by a Board Resolution, shall
promptly appoint a successor Purchase Contract Agent and shall comply with the
applicable requirements of Section 7.10. If no successor Purchase Contract Agent
shall have been so appointed by TECO and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of a Unit
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(f) TECO shall give, or shall cause such successor Purchase Contract
Agent to give, notice of each resignation and each removal of the Purchase
Contract Agent and each appointment of a successor Purchase Contract Agent by
mailing written notice of such event by first-class mail, postage prepaid, to
all Holders as their names and addresses appear in the applicable Register. Each
notice shall include the name of the successor Purchase Contract Agent and the
address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Purchase Contract Agent, every such
successor Purchase Contract Agent so appointed shall execute, acknowledge and
deliver to TECO and to the retiring Purchase Contract Agent an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Purchase Contract Agent shall become effective and such successor
Purchase Contract Agent, without any further act, deed or conveyance, shall
become vested with all the rights, powers, agencies and duties of the retiring
Purchase Contract Agent;
54
but, on the request of TECO or the successor Purchase Contract Agent, such
retiring Purchase Contract Agent shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Purchase Contract Agent all
the rights, powers and trusts of the retiring Purchase Contract Agent and shall
duly assign, transfer and deliver to such successor Purchase Contract Agent all
property and money held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, TECO
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Purchase Contract Agent all such rights, powers
and agencies referred to in paragraph (a) of this Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be qualified and eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Purchase Contract Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Purchase Contract
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Purchase Contract Agent, shall be the
successor of the Purchase Contract Agent hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Certificates shall have been authenticated and
executed on behalf of the Holders, but not delivered, by the Purchase Contract
Agent then in office, any successor by merger, conversion or consolidation to
such Purchase Contract Agent shall adopt such authentication and execution and
deliver the Certificates so authenticated and executed with the same effect as
if such successor Purchase Contract Agent had itself authenticated and executed
such Units.
Section 7.12. Preservation of Information; Communications to
Holders. (a) The Purchase Contract Agent shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Purchase Contract Agent, and furnish to the Purchase
Contract Agent reasonable proof that each such applicant has owned a Unit for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Units and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Purchase Contract Agent shall mail to
all the Holders copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Purchase Contract Agent of the materials to be mailed and of payment, or
provision, in the absence of bad faith, satisfactory to the Purchase Contract
Agent for the payment, of the reasonable expenses of such mailing.
55
Section 7.13. No Obligations of Purchase Contract Agent. Except to
the extent otherwise provided in this Agreement, the Purchase Contract Agent
assumes no obligation and shall not be subject to any liability under this
Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Unit thereunder. TECO agrees, and each Holder
of a Certificate, by such Holder's acceptance thereof, shall be deemed to have
agreed, that the Purchase Contract Agent's execution of the Certificates on
behalf of the Holders shall be solely as agent and attorney-in-fact for the
Holders, and that the Purchase Contract Agent shall have no obligation to
perform such Purchase Contracts on behalf of the Holders, except to the extent
expressly provided in Article Five.
Section 7.14. Tax Compliance. (a) The Purchase Contract Agent, on
its own behalf and on behalf of TECO, will comply with all applicable
certification, information reporting and withholding (including "backup"
withholding) requirements imposed by applicable tax laws, regulations or
administrative practice with respect to (i) any payments made with respect to
the Units or (ii) the issuance, delivery, holding, transfer, redemption or
exercise of rights under the Units. Such compliance shall include, without
limitation, the preparation and timely filing of required returns, such returns
to be prepared by TECO, and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent, such
filing and payment to be at the specific written direction of TECO.
(b) The Purchase Contract Agent shall comply with any reasonable
written direction timely received from TECO with respect to the application of
such requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such direction
in accordance with the provisions of Section 7.1(a)(2).
(c) The Purchase Contract Agent shall maintain all appropriate
records documenting compliance with such requirements, and shall make such
records available, on written request, to TECO or its authorized representative
within a reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1. Supplemental Agreements without Consent of Holders.
Without the consent of any Holders, TECO and the Purchase Contract Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to TECO and the Purchase Contract Agent, for any of
the following purposes:
(1) to evidence the succession of another Person to TECO, and the
assumption by any such successor of the covenants of TECO herein and in
the Certificates; or
(2) to add to the covenants of TECO for the benefit of the Holders,
or to surrender any right or power herein conferred upon TECO; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Purchase Contract Agent; or
56
(4) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 5.4(b) or 5.8; or
(5) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to
make any other provisions with respect to such matters or questions
arising under this Agreement, provided such action shall not adversely
affect the interests of the Holders.
Section 8.2. Supplemental Agreements with Consent of Holders. With
the consent of the Holders of not less than a majority of the outstanding
Purchase Contracts voting together as one class, by Act of said Holders
delivered to TECO and the Purchase Contract Agent, TECO, when authorized by a
Board Resolution, and the Purchase Contract Agent may enter into an agreement or
agreements supplemental hereto for the purpose of modifying in any manner the
terms of the Purchase Contracts, or the provisions of this Agreement or the
rights of the Holders in respect of the Units; provided, that, except as
contemplated herein, no such supplemental agreement shall, without the consent
of the Holder of each Outstanding Security affected thereby:
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's Obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral (except for the rights of Holders
of Normal Units to substitute Treasury Securities for the Pledged Trust
Preferred Securities, Pledged LLC Preferred Securities or Pledged Notes or
the Applicable Ownership Interest of the Treasury Portfolio or the rights
of Holders of Stripped Units to substitute Trust Preferred Securities or
the Applicable Ownership Interest of the Treasury Portfolio for the
Pledged Treasury Securities) or otherwise adversely affect the Holder's
rights in or to such Collateral or materially adversely alter the rights
in or to such Collateral;
(3) reduce Contract Adjustment Payments (including any deferred
Contract Adjustment Payments) or change any place where, or the coin or
currency in which, Contract Adjustment Payments are payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares
of Common Stock upon settlement of any Purchase Contract, change the
Purchase Contract Settlement Date or otherwise materially adversely affect
the Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for the modification or amendment of
the provisions of the Agreement, the Pledge Agreement or the Purchase
Contracts;
57
provided that if any amendment or proposal referred to above would adversely
affect only the Normal Units or the Stripped Units, as the case may be, then
only the affected class of Holder as of the record date for the Holders entitled
to vote thereon will be entitled to vote on such amendment or proposal, and such
amendment or proposal shall not be effective except with the consent of Holders
of not less than a majority of such class.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements. In executing, or
accepting the additional agencies created by, any supplemental agreement
permitted by this Article or the modifications thereby of the agencies created
by this Agreement or the Officer's Certificate, the Purchase Contract Agent
shall be provided and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements. Upon the execution
of any supplemental agreement under this Article, this Agreement shall be
modified in accordance therewith, and such supplemental agreement shall form a
part of this Agreement for all purposes; and every Holder of Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered hereunder shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements. Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any supplemental agreement pursuant to this Article may, and shall
if required by the Purchase Contract Agent, bear a notation in form approved by
the Purchase Contract Agent as to any matter provided for in such supplemental
agreement. If TECO shall so determine, new Certificates so modified as to
conform, in the opinion of the Purchase Contract Agent and TECO, to any such
supplemental agreement may be prepared and executed by TECO and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in exchange for Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. TECO covenants that it will not (a)
merge or consolidate with any other Person or (b) sell, assign, transfer, lease
or convey all or substantially all of its properties and assets to any Person or
group of affiliated Persons in one transaction or a series of related
transactions other than, with respect to clause (b), a direct or indirect
wholly-owned subsidiary of TECO, unless (i) either TECO shall be the continuing
corporation, or the successor (if other than TECO) shall be a corporation
organized and existing under the laws of the United
58
States of America or a State thereof or the District of Columbia and such
corporation shall expressly assume all the obligations of TECO under the
Purchase Contracts, the LLC Preferred Securities, the Notes, the Guarantee, this
Agreement, the Remarketing Agreement, and the Pledge Agreement by one or more
supplemental agreements in form reasonably satisfactory to the Purchase Contract
Agent and the Collateral Agent, executed and delivered to the Purchase Contract
Agent and the Collateral Agent by such corporation, and (ii) TECO or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale, assignment, transfer, lease or
conveyance, be in default in the performance of any covenant or condition
hereunder, under any of this Agreement, the Pledge Agreement, the Purchase
Contracts or the Units or the Remarketing Agreement.
Section 9.2. Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale, assignment, transfer, lease or conveyance
and upon any such assumption by a successor corporation in accordance with
Section 9.1, such successor corporation shall succeed to and be substituted for
TECO with the same effect as if it had been named herein as TECO. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of TECO, any or all of the Certificates evidencing Units
issuable hereunder which theretofore shall not have been signed by TECO and
delivered to the Purchase Contract Agent; and, upon the order of such successor
corporation, instead of TECO, and subject to all the terms, conditions and
limitations in this Agreement prescribed, the Purchase Contract Agent shall
authenticate and execute on behalf of the Holders and deliver any Certificates
which previously shall have been signed and delivered by the officers of TECO to
the Purchase Contract Agent for authentication and execution, and any
Certificate evidencing Units which such successor corporation thereafter shall
cause to be signed and delivered to the Purchase Contract Agent for that
purpose. All the Certificates so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Certificates had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance, such change in phraseology and form (but not in
substance) may be made in the Certificates evidencing Units thereafter to be
issued as may be appropriate.
Section 9.3. Opinion of Counsel Given to Purchase Contract Agent.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3, shall receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, assignment, transfer, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
to the consummation of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance have been met.
ARTICLE X
COVENANTS
Section 10.1. Performance under Purchase Contracts. TECO covenants
and agrees for the benefit of the Holders from time to time of the Units that it
will duly and
59
punctually perform its obligations under the Purchase Contracts in accordance
with the terms of the Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency. TECO will maintain in
the Borough of Manhattan, The City of New York an office or agency where
Certificates may be presented or surrendered for acquisition of shares of Common
Stock upon settlement of the Purchase Contracts on any Settlement Date and for
transfer of Collateral upon occurrence of a Termination Event, where
Certificates may be surrendered for registration of transfer or exchange, for a
Collateral Substitution or reestablishment of Normal Units and where notices and
demands to or upon TECO in respect of the Units and this Agreement may be
served. TECO will give prompt written notice to the Purchase Contract Agent of
the location, and any change in the location, of such office or agency. If at
any time TECO shall fail to maintain any such required office or agency or shall
fail to furnish the Purchase Contract Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and TECO hereby appoints the Purchase Contract Agent as
its agent to receive all such presentations, surrenders, notices and demands.
TECO may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
that no such designation or rescission shall in any manner relieve TECO of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York for such purposes. TECO will give prompt written notice to the
Purchase Contract Agent of any such designation or rescission and of any change
in the location of any such other office or agency. TECO hereby designates as
the place of payment for the Units the Corporate Trust Office and appoints the
Purchase Contract Agent at its Corporate Trust Office as paying agent in such
city.
Section 10.3. Company to Reserve Common Stock. TECO shall at all
times prior to the Purchase Contract Settlement Date reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock the
full number of shares of Common Stock issuable against tender of payment in
respect of all Purchase Contracts constituting a part of the Units evidenced by
Outstanding Certificates.
Section 10.4. Covenants as to Common Stock. TECO covenants that all
shares of Common Stock which may be issued against tender of payment in respect
of any Purchase Contract constituting a part of the Outstanding Securities will,
upon issuance, be duly authorized, validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officer of TECO as to Default. TECO will
deliver to the Purchase Contract Agent, within 120 days after the end of each
fiscal year of TECO ending after the date hereof, an Officer's Certificate, one
of the signers of which shall be the principal financial, principal accounting
or principal executive officer of TECO stating whether or not to the best
knowledge of the signer thereof TECO is in default in the performance and
observance of any of the terms, provisions and conditions hereof, without regard
to notice requirements or grace periods, and if TECO shall be in default,
specifying all such defaults and the nature and status thereof of which such
Officer may have knowledge.
60
Section 10.6. ERISA. Each Holder from time to time of the Trust
Preferred Securities that is a Plan hereby represents that its acquisition of
the Equity Units and the holding of the same satisfies the applicable fiduciary
requirements of ERISA and that it is entitled to exemption relief from the
prohibited transaction provisions of ERISA and the Code in accordance with one
or more prohibited transaction exemptions or otherwise will not result in a
nonexempt prohibited transaction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
TECO ENERGY, INC.
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Purchase Contract Agent
By:
----------------------------------
Name:
Title:
61
A-1
EXHIBIT A
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO
TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to TECO or
its Purchase Contract Agent for registration of transfer, exchange or payment,
and any Certificate issued is registered in the name of Cede & Co., or such
other name as requested by an authorized representative of The Depository Trust
Company, and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
No. CUSIP No.
-------------- --------
[Number of Normal Units]
Form of Face of Normal Units Certificate
This Normal Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Normal Units set forth above. Each Normal
Unit represents (i) either (a) beneficial ownership by the Holder of one 5.11%
Trust Preferred Security (the "Trust Preferred Security") of TECO Capital Trust
II, a Delaware statutory business trust (the "Trust"), having a stated
liquidation amount of $25 per share, subject to the Pledge of such Trust
Preferred Security by such Holder pursuant to the Pledge Agreement, (b) if the
Trust Preferred Security has been remarketed by the Remarketing Agent (or if the
Holder has elected not to have the Trust Preferred Security remarketed by
delivering the appropriate Treasury Consideration specified by the Remarketing
Agent), the appropriate Treasury Consideration, subject to the Pledge of such
Treasury Consideration by such Holder pursuant to the Pledge Agreement or (c)
upon the occurrence of a Special Event Redemption prior to the Purchase Contract
Settlement Date, the appropriate Applicable Ownership Interest of the Treasury
Portfolio, subject to the Pledge of such Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio by such Holder pursuant to the Pledge Agreement, and (ii) the rights
and obligations of the Holder under one Purchase Contract with TECO Energy,
Inc., a Florida corporation (the "Company"). All capitalized terms used herein
which are defined in the Purchase Contract Agreement have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Trust Preferred Security or
the appropriate Treasury Consideration, as the case may be, constituting part of
each Normal Unit evidenced
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hereby has been pledged to the Collateral Agent, for the benefit of TECO, to
secure the obligations of the Holder under the Purchase Contract comprising a
part of such Normal Unit.
The Pledge Agreement provides that all payments in respect of the
Pledged Trust Preferred Securities or Pledged Treasury Consideration received by
the Collateral Agent shall be paid by the Collateral Agent by wire transfer in
same day funds (i) in the case of (A) quarterly cash distributions on Normal
Units which include Pledged Trust Preferred Securities or Pledged Treasury
Consideration and (B) any payments of the Trust Preferred Securities or Treasury
Consideration, as the case may be, that have been released from the Pledge
pursuant to the Pledge Agreement, to the Purchase Contract Agent to the account
designated by the Purchase Contract Agent, no later than 10:00 a.m., New York
City time, on the Business Day such payment is received by the Collateral Agent
(provided that in the event such payment is received by the Collateral Agent on
a day that is not a Business Day or after 9:00 a.m., New York City time, on a
Business Day, then such payment shall be made no later than 9:30 a.m., New York
City time, on the next succeeding Business Day) and (ii) in the case of payments
in respect of any Pledged Trust Preferred Securities or Pledged Treasury
Consideration, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Purchase Contract, to TECO on the
Purchase Contract Settlement Date (as defined herein) in accordance with the
terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Normal Units of which such Pledged Trust
Preferred Securities or Pledged Treasury Consideration, as the case may be, are
a part under the Purchase Contracts forming a part of such Normal Units.
Quarterly distributions on Normal Units which include Pledged Trust Preferred
Securities or Pledged Treasury Consideration, as the case may be, which are
payable quarterly in arrears on January 15, April 15, July 15 and October 15,
commencing April 15, 2002 (each a "Payment Date"), shall, subject to receipt
thereof by the Purchase Contract Agent from the Collateral Agent, be paid to the
Person in whose name this Normal Units Certificate (or a Predecessor Normal
Units Certificate) is registered at the close of business on the Record Date for
such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Units Certificate to purchase, and TECO to sell, on January 15, 2005 (the
"Purchase Contract Settlement Date"), at a price equal to $25 (the "Stated
Amount"), a number of shares of Common Stock of TECO, equal to the Settlement
Rate, unless on or prior to the Purchase Contract Settlement Date there shall
have occurred a Termination Event or an Early Settlement or Merger Early
Settlement with respect to the Normal Units of which such Purchase Contract is a
part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The Purchase Price (as defined herein) for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby, if not paid earlier, shall be paid on the Purchase Contract Settlement
Date by application of payments received in respect of the Pledged Trust
Preferred Securities or the Pledged Treasury Consideration, as the case may be,
pledged to secure the obligations of the Holder under such Purchase Contract.
TECO shall pay, on each Payment Date, the Contract Adjustment
Payments (as defined below) payable in respect of each Purchase Contract to the
Person in whose name the Normal Units Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date for such
Payment Date. Contract Adjustment Payments and distributions on the Trust
Preferred Securities or payments on the appropriate Treasury Consideration (as
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specified in clause (i) of the definition of the Remarketing Value), as the case
may be, will be payable at the office of the Purchase Contract Agent in The City
of New York or, at the option of TECO, by check mailed to the address of the
Person entitled thereto as such address appears on the Normal Units Register or
by wire transfer to an account specified by TECO. Notwithstanding the foregoing,
TECO may at its discretion defer the Contract Adjustment Payments, but not
beyond the Purchase Contract Settlement Date. TECO will pay additional Contract
Adjustment Payments on installments of Contract Adjustment Payments so deferred
at a rate of 9.50% per year until paid, unless the Purchase Contract has been
earlier settled or terminated.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this Normal Units Certificate
shall not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, TECO has caused this instrument to be duly
executed.
TECO ENERGY, INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts evidenced
hereby)
By: THE BANK OF NEW YORK, not
individually but solely as
Attorney-in-Fact of such Holder
By:
--------------------------------
Name:
Title:
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Dated:
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PURCHASE CONTRACT AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Normal Units Certificates referred to in the
within mentioned Purchase Contract Agreement.
THE BANK OF NEW YORK,
as Purchase Contract Agent
By:
--------------------------------
Authorized Signatory
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(Form of Reverse of Normal Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of January 15, 2002 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between TECO and The Bank of
New York, as Purchase Contract Agent (including its successors thereunder,
herein called the "Purchase Contract Agent"), to which Purchase Contract
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Purchase Contract Agent, TECO, and the Holders
and of the terms upon which the Normal Units Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Units Certificate to purchase, and TECO to sell, on the Purchase Contract
Settlement Date at a price equal to $25 (the "Purchase Price"), a number of
shares of Common Stock of TECO equal to the Settlement Rate, unless, on or prior
to the Purchase Contract Settlement Date, there shall have occurred a
Termination Event or an Early Settlement or Merger Early Settlement with respect
to the Unit of which such Purchase Contract is a part. The "Settlement Rate" is
equal to (a) if the Applicable Market Value (as defined below) is equal to or
greater than $30.10 (the "Threshold Appreciation Price"), 0.8305 shares of
Common Stock per Purchase Contract, (b) if the Applicable Market Value is less
than the Threshold Appreciation Price but is greater than $26.29 the number of
shares of Common Stock per Purchase Contract equal to the Stated Amount divided
by the Applicable Market Value and (c) if the Applicable Market Value is less
than or equal to $26.29, 0.9509 shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by TECO.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional
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securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Purchase Contract evidenced hereby may be settled prior to the
Purchase Contract Settlement Date through Early Settlement or Merger Early
Settlement, in accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Normal Units Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby (i) by effecting an Early Settlement or Merger Early Settlement, (ii) by
application of payments received in respect of the Pledged Treasury
Consideration acquired from the proceeds of a remarketing of the related Pledged
Trust Preferred Securities underlying the Normal Units represented by this
Normal Units Certificate or (iii) if the Holder has elected not to participate
in the remarketing, by application of payments received in respect of the
Pledged Treasury Consideration deposited by such Holder in respect of such
Purchase Contract. If, as provided in the Purchase Contract Agreement, upon the
occurrence of a Failed Remarketing the Collateral Agent, for the benefit of
TECO, exercises its rights as a secured creditor with respect to the Pledged
Trust Preferred Securities related to this Normal Units Certificate, any
accumulated and unpaid distributions on such Pledged Trust Preferred Securities
will become payable by TECO to the Holder of this Normal Units Certificate in
the manner provided for in the Purchase Contract Agreement.
TECO shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
TECO shall pay on each Payment Date, commencing April 15, 2002, in
respect of each Purchase Contract forming part of a Normal Unit evidenced
hereby, an amount (the "Contract Adjustment Payments") equal to 4.39% per annum
of the Stated Amount computed on the basis of (i) for any full quarterly period,
a 360-day year of twelve 30-day months, (ii) for any period shorter than a full
quarterly period, a 30-day month and (iii) for periods less than a month, the
actual number of days elapsed per 30-day period. Such Contract Adjustment
Payments shall be payable to the Person in whose name this Normal Unit
Certificate (or a Predecessor Normal Unit Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Trust Preferred Securities. Upon receipt of notice of
any meeting at which holders of Trust Preferred Securities are entitled to vote
or upon the solicitation of consents, waivers or proxies of holders of Trust
Preferred Securities, the Purchase Contract Agent shall, as soon as practicable
thereafter, mail to the Holders of Normal Units a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
such Holder on the record date set by the Purchase Contract Agent therefor
(which, to the extent possible, shall be the same date as the record date for
determining the holders of Trust Preferred Securities entitled to vote) shall be
entitled to instruct the Purchase Contract Agent as to the exercise of the
voting rights pertaining to the Pledged Trust Preferred Securities constituting
a part of such Holder's Normal Units and
A-7
(c) stating the manner in which such instructions may be given. Upon the written
request of the Holders of Normal Units on such record date, the Purchase
Contract Agent shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of Pledged Trust Preferred Securities as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Normal Unit, the Purchase Contract Agent shall abstain from
voting the Pledged Trust Preferred Security evidenced by such Normal Unit.
Upon a dissolution of the Trust, an aggregate liquidation amount of
the LLC Preferred Securities (or if, the LLC shall have been dissolved, a
principal amount of the Notes) constituting the assets of the Trust and
underlying the Pledged Trust Preferred Securities equal to the aggregate Stated
Amount of the Pledged Trust Preferred Securities shall be delivered to the
Collateral Agent in exchange for Pledged Trust Preferred Securities. Thereafter,
the LLC Preferred Securities or the Notes, as the case may be, shall be held by
the Collateral Agent to secure the obligations of each Holder of Normal Units to
purchase shares of Common Stock under the Purchase Contracts constituting a part
of such Normal Units. Following a dissolution of the Trust, the Holders and the
Collateral Agent shall have such security interests, rights and obligations with
respect to the LLC Preferred Securities or the Notes, as the case may be, as the
Holders and the Collateral Agent had in respect of the Pledged Trust Preferred
Securities, and any reference in the Purchase Contract Agreement or Pledge
Agreement to the Trust Preferred Securities or Pledged Trust Preferred
Securities shall be deemed to be a reference to the LLC Preferred Securities or
the Notes, as appropriate.
Upon the occurrence of a Special Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Special
Event Redemption Date with respect to the Applicable Principal Amount of Trust
Preferred Securities shall be delivered to the Securities Intermediary in
exchange for the Pledged Trust Preferred Securities. Thereafter, pursuant to the
terms of the Pledge Agreement, the Securities Intermediary will apply an amount
equal to the Redemption Amount of such Redemption Price to purchase the Treasury
Portfolio and promptly (a) transfer the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio to the Collateral Account to secure the obligations of each Holder of
Normal Units to purchase shares of Common Stock under the Purchase Contracts
constituting a part of such Normal Units, (b) transfer the Applicable Ownership
Interest (as specified in clause (B) of the definition of such term) of the
Treasury Portfolio to the Agent for the benefit of the Holders of such Normal
Units and (c) remit the remaining portion of such Redemption Price to the Agent
for payment to the Holders of such Normal Units.
Following the occurrence of a Special Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Normal Units and the
Collateral Agent shall have such security interest rights and obligations with
respect to the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio as the Holder of Normal Units
and the Collateral Agent had in respect of the Trust Preferred Securities,
subject to the Pledge thereof as provided in the Pledge Agreement and any
reference herein to the Trust Preferred Securities shall be deemed to be a
reference to such Treasury Portfolio.
A-8
The Normal Units Certificates are issuable only in registered form
and only in denominations of a single Normal Unit and any integral multiple
thereof. The transfer of any Normal Units Certificate will be registered and
Normal Units Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Normal Units Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but TECO and the Purchase Contract Agent
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. The Holder of a Normal Unit may
substitute for the Pledged Trust Preferred Securities or Pledged Treasury
Consideration securing its obligations under the related Purchase Contract
Treasury Securities in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. From and after such Collateral Substitution,
the Unit for which such Pledged Treasury Securities secures the Holder's
obligation under the Purchase Contract shall be referred to as a "Stripped
Unit." A Holder that elects to substitute a Treasury Security for Pledged Trust
Preferred Securities or Pledged Treasury Consideration, thereby creating
Stripped Units, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract underlying a Normal Unit remains in effect,
such Normal Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Normal Units in respect of the
Pledged Trust Preferred Security or Pledged Treasury Consideration, as the case
may be, and Purchase Contract constituting such Normal Unit may be transferred
and exchanged only as a Normal Unit.
A Holder of Stripped Units may reestablish Normal Units by
delivering to the Collateral Agent Trust Preferred Securities or the appropriate
Treasury Consideration in exchange for the release of the Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
The Purchase Contracts and all obligations and rights of TECO and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive, and the obligations of TECO to pay, Contract Adjustment Payments
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Purchase Contract Agent or TECO, if, on or
prior to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, TECO shall promptly but in
no event later than two Business Days thereafter give written notice to the
Purchase Contract Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Normal Units Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Trust Preferred Securities or Pledged Treasury Consideration, as the
case may be, from the Pledge in accordance with the provisions of the Pledge
Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement; provided, however, that if a Special Event
Redemption has occurred and the Treasury Portfolio has become a component of the
Normal Units, Holders may settle early Normal Units only with respect to
Purchase Contracts underlying Normal Units with an aggregate Stated Amount equal
to $1,000 or an integral multiple thereof. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by this
Normal Units Certificate, the Holder of this
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Normal Units Certificate shall deliver this Normal Units Certificate to the
Agent at the Corporate Trust Office duly endorsed for transfer to TECO or in
blank with the form of election to Settle Early set forth below duly completed
and accompanied by payment in the form of immediately available funds payable to
the order of TECO in an amount (the "Early Settlement Amount") equal to (i) the
product of (A) the Stated Amount times (B) the number of Purchase Contracts with
respect to which the Holder has elected to effect Early Settlement, plus (ii) if
such delivery is made with respect to any Purchase Contracts during the period
from the close of business on any Record Date for any Payment Date to the
opening of business on such Payment Date, an amount equal to the Contract
Adjustment Payments payable on such Payment Date with respect to such Purchase
Contracts. Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Pledged Treasury Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Normal Units as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to 0.8305 shares of Common Stock and shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Normal Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Normal Units Certificate. TECO covenants and agrees, and the
Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by
the provisions of this paragraph.
The Holder of this Normal Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Normal Units evidenced hereby on
his behalf as his attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by TECO or its trustee
in the event that TECO becomes the subject of a case under the Bankruptcy Code,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform such Holder's obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Purchase Contract
Agent to enter into and perform the Pledge Agreement on such Holder's behalf as
attorney-in-fact, and consents to the Pledge of the Trust Preferred Securities
or the appropriate Treasury Consideration, as the case may be, underlying this
Normal Units Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of the Pledged Trust Preferred Securities or the
Pledged Treasury Consideration, as the case may be, to be paid upon settlement
of such Holder's obligations to purchase Common Stock under the Purchase
Contract, shall be paid on the Purchase Contract Settlement Date by the
Collateral Agent to TECO in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest in
such payments.
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Each Holder of any Unit, and each Beneficial Owner thereof, by its
acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Trust Preferred Securities, or Treasury
Consideration, as the case may be, and (ii) the Notes as indebtedness of TECO,
in each case, for United States federal, state and local income and franchise
tax purposes.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
TECO, the Purchase Contract Agent and its Affiliates and any agent
of TECO or the Purchase Contract Agent may treat the Person in whose name this
Normal Units Certificate is registered as the owner of the Normal Units
evidenced hereby for the purpose of receiving payments of distributions payable
quarterly on the Trust Preferred Securities or the Treasury Consideration, as
the case may be, performance of the Purchase Contracts (including the Contract
Adjustment Payments) and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither TECO, the Purchase Contract Agent, such Affiliates nor any
such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
--------------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto --------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Normal Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
----------------------------------------------------------------------------
A-12
attorney to transfer said Normal Units Certificates on the books of TECO
Energy, Inc. with full power of substitution in the premises.
Dated: _____________________________________
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Normal Units Certificates
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: __________________________________________________________
A-13
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Normal Units
evidenced by this Normal Units Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _____________________________________
Signature
Signature Guarantee:__________________
(if assigned to another person)
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please
(i) print such Person's name and
address and (ii) provide a Please print name
guarantee of your signature: and address of Registered Holder:
_____________________________________ ______________________________________
Name Name
_____________________________________ ______________________________________
Address Address
_____________________________________ _______________________________________
_____________________________________ _______________________________________
_____________________________________ _______________________________________
Social Security or other Taxpayer
Identification Number, if any
A-14
ELECTION TO SETTLE EARLY
The undersigned Holder of this Normal Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Normal Units evidenced by this Normal Units
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Normal Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Normal Units Certificate representing any Normal Units evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Trust Preferred Securities or Pledged
Treasury Consideration, as the case may be, deliverable upon such Early
Settlement will be transferred in accordance with the transfer instructions set
forth below. If shares are to be registered in the name of a Person other than
the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _____________________________________
Signature
Signature Guarantee: __________________________________
A-15
Number of Units evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Normal REGISTERED HOLDER
Units Certificates are to be
registered in the name of and
delivered to, and Pledged Trust
Preferred Securities or Pledged
Treasury Consideration, as the
case may be, are to be transferred to,
a Person other than the Holder, please Please print name and address of
print such Person's name and address: Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other Taxpayer
Identification Number, if any _____________________________________
Transfer instructions for Pledged Trust Preferred Securities or Pledged Treasury
Consideration, as the case may be, transferable upon Early Settlement or a
Termination Event:
_____________________________________ _______________________________________
_____________________________________ _______________________________________
_____________________________________ _______________________________________
A-16
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Amount of Stated Amount of
increase in the Global Signature of
Amount of Stated Certificate authorized
decrease in Stated Amount of the following such signatory
Amount of the Global decrease of of Purchase
Date Global Certificate Certificate Increase Contract Agent
---- ------------------ ----------- ---------------- --------------
A-17
EXHIBIT B
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO
TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to TECO or
its Purchase Contract Agent for registration of transfer, exchange or payment,
and any Certificate issued is registered in the name of Cede & Co., or such
other name as requested by an authorized representative of The Depository Trust
Company, and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
No. CUSIP No.
-------------- --------
[Number of Stripped Units]
Form of Face of Stripped Units Certificate
This Stripped Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Stripped Units set forth above. Each Stripped
Unit represents (i) a 1/40 undivided beneficial ownership interest in a Treasury
Security, subject to the Pledge of such interest in such Treasury Security by
such Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with TECO Energy, Inc., a
Florida corporation (the "Company"). All capitalized terms used herein which are
defined in the Purchase Contract Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Security constituting
part of each Stripped Unit evidenced hereby has been pledged to the Collateral
Agent, for the benefit of TECO, to secure the obligations of the Holder under
the Purchase Contract comprising a part of such Stripped Unit.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Units Certificate to purchase, and TECO to sell, on January 15, 2005
(the "Purchase Contract Settlement Date"), at a price equal to $25 (the "Stated
Amount"), a number of shares of Common Stock of TECO, equal to the Settlement
Rate, unless on or prior to the Purchase Contract Settlement Date there shall
have occurred a Termination Event or an Early Settlement or Merger Early
Settlement with respect to the Stripped Units of which such Purchase Contract is
a part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof.
B-1
The Purchase Price (as defined herein) for the shares of Common Stock purchased
pursuant to each Purchase Contract evidenced hereby, if not paid earlier, shall
be paid on the Purchase Contract Settlement Date by application of payments
received in respect of the Pledged Treasury Securities pledged to secure the
obligations under such Purchase Contract in accordance with the terms of the
Pledge Agreement.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this Stripped Units Certificate
shall not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, TECO has caused this instrument to be duly
executed.
TECO ENERGY, INC.
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts)
By: THE BANK OF NEW YORK, not
individually but solely as
Attorney-in-Fact
of such Holder
By:____________________________________
Name:
Title:
Dated:
B-2
PURCHASE CONTRACT AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units Certificates referred to in the
within-mentioned Purchase Contract Agreement.
THE BANK OF NEW YORK,
as Purchase Contract Agent
By:____________________________________
Authorized Signatory
B-3
(Reverse of Stripped Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of January 15, 2002 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between TECO and The Bank of
New York, as Purchase Contract Agent (including its successors thereunder,
herein called the "Purchase Contract Agent"), to which the Purchase Contract
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Purchase Contract Agent, TECO and the Holders
and of the terms upon which the Stripped Units Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Units Certificate to purchase, and TECO to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of TECO equal to the Settlement
Rate, unless, on or prior to the Purchase Contract Settlement Date, there shall
have occurred a Termination Event or an Early Settlement or Merger Early
Settlement with respect to the Unit of which such Purchase Contract is a part.
The "Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $30.10 (the "Threshold Appreciation Price"),
0.8305 shares of Common Stock per Purchase Contract, (b) if the Applicable
Market Value is less than the Threshold Appreciation Price but is greater than
$26.29, the number of shares of Common Stock per Purchase Contract equal to the
Stated Amount divided by the Applicable Market Value and (c) if the Applicable
Market Value is less than or equal to $26.29, 0.9509 shares of Common Stock per
Purchase Contract, in each case subject to adjustment as provided in the
Purchase Contract Agreement. No fractional shares of Common Stock will be issued
upon settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by TECO.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter
B-4
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
Each Purchase Contract evidenced hereby may be settled prior to the
Purchase Contract Settlement Date through Early Settlement or Merger Early
Settlement, in accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Stripped Units Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby (i) by effecting an Early Settlement or Merger Early Settlement or (ii)
by application of payments received in respect of the Pledged Treasury
Securities underlying the Stripped Units represented by this Stripped Units
Certificate.
TECO shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
TECO shall pay on January 15, April 15, July 15 and October 15 of
each year (each, a "Payment Date"), commencing April 15, 2002, in respect of
each Purchase Contract evidenced hereby, an amount (the "Contract Adjustment
Payments") equal to 4.39% per annum of the Stated Amount computed on the basis
of (i) for any full quarterly period, a 360-day year of twelve 30-day months,
(ii) for any period shorter than a full quarterly period, a 30-day month and
(iii) for periods less than a month, the actual number of days elapsed per
30-day period). Such Contract Adjustment Payments shall be payable to the Person
in whose name this Stripped Units Certificate (or a Predecessor Stripped Units
Certificate) is registered at the close of business on the Record Date for such
Payment Date. Notwithstanding the foregoing, TECO may at its discretion defer
the Contract Adjustment Payments, but not beyond the Purchase Contract
Settlement Date. TECO will pay additional Contract Adjustment Payments on
installments of Contract Adjustment Payments so deferred at a rate of 9.50% per
year until paid, unless the Purchase Contract has been earlier settled or
terminated.
The Stripped Units Certificates are issuable only in registered form
and only in denominations of a single Stripped Unit and any integral multiple
thereof. The transfer of any Stripped Units Certificate will be registered and
Stripped Units Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Stripped Units Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but TECO and the
Purchase Contract Agent may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. The Holder of a
Stripped Unit may substitute for the Pledged Treasury Securities securing its
obligations under the related Purchase Contract Trust Preferred Securities or
the appropriate Treasury Consideration in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
substitution, the Unit for which such Pledged Trust Preferred Securities or
Pledged Treasury Consideration secures the Holder's
B-5
obligation under the Purchase Contract shall be referred to as a "Normal Unit."
A Holder that elects to substitute Trust Preferred Securities or the appropriate
Treasury Consideration, as the case may be, for Pledged Treasury Securities,
thereby reestablishing Normal Units, shall be responsible for any fees or
expenses payable in connection therewith. Except as provided in the Purchase
Contract Agreement, for so long as the Purchase Contract underlying a Stripped
Unit remains in effect, such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Treasury Security and the Purchase Contract
constituting such Stripped Unit may be transferred and exchanged only as a
Stripped Unit.
The Purchase Contracts and all obligations and rights of TECO and
the Holders thereunder, including, without limitation, the rights of the Holder
to receive, and the obligations of TECO to pay, Contract Adjustment Payments
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Purchase Contract Agent or TECO, if, on or
prior to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, TECO shall promptly but in
no event later than two Business Days thereafter give written notice to the
Purchase Contract Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Stripped Units Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Treasury Securities from the Pledge in accordance with the provisions of
the Pledge Agreement.
Upon registration of transfer of this Stripped Units Certificate,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Purchase Contract
Agent pursuant to the Purchase Contract Agreement), under the terms of the
Purchase Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Stripped Units Certificate. TECO covenants and agrees, and the
Holder, by his acceptance hereof, likewise covenants and agrees, to be bound by
the provisions of this paragraph.
The Holder of this Stripped Units Certificate, by his acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Stripped Units evidenced hereby
on his behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by TECO or its trustee
in the event that TECO becomes the subject of a case under the Bankruptcy Code,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform such Holder's obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Purchase Contract
Agent to enter into and perform the Pledge Agreement on such Holder's behalf as
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Stripped Units Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the Pledged Treasury
Securities, to be paid upon settlement of such Holder's obligations to purchase
Common Stock under the Purchase Contract, shall be paid on the Purchase Contract
Settlement Date by the Collateral Agent to TECO in satisfaction of such
B-6
Holder's obligations under such Purchase Contract and such Holder shall acquire
no right, title or interest in such payments.
Each Holder of any Unit, and each Beneficial Owner thereof, by its
acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Trust Preferred Securities, Treasury
Consideration or Treasury Securities, as the case may be, and (ii) the Notes as
indebtedness of TECO, in each case, for United States federal, state and local
income and franchise tax purposes.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to conflicts of laws principles thereof.
TECO, the Purchase Contract Agent and its Affiliates and any agent
of TECO or the Purchase Contract Agent may treat the Person in whose name this
Stripped Units Certificate is registered as the owner of the Stripped Units
evidenced hereby for the purpose of performance of the Purchase Contracts
(including the Contract Adjustment Payments) and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither TECO, the Purchase
Contract Agent, such Affiliate, nor any such agent shall be affected by notice
to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
B-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
---------------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
--------------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Stripped Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
------------------------------------------------------------------------------
attorney to transfer said Stripped Units Certificates on the books of TECO
Energy, Inc. with full power of substitution in the premises.
Dated:
--------------------------------------
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears
B-8
upon the face of the within Stripped
Units Certificates in every particular,
without alteration or enlargement or
any change whatsoever.
Signature Guarantee:
---------------------------------------------------
B-9
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Stripped
Units evidenced by this Stripped Units Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _____________________________________
Signature
Signature Guarantee: _________________
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please
(i) print such Person's name and
address and (ii) provide a guarantee
of your signature: Please print name and address of
Registered Holder:
_____________________________________ ______________________________________
Name Name
_____________________________________ ______________________________________
Address Address
_____________________________________ ______________________________________
_____________________________________ ______________________________________
_____________________________________ ______________________________________
Social Security or other Taxpayer
Identification Number, if any
B-10
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Stripped Units evidenced by this Stripped
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Stripped Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Stripped Units Certificate representing any Stripped Units evidenced hereby as
to which Early Settlement of the related Purchase Contracts is not effected, to
the undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Treasury Securities deliverable upon
such Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _____________________________________
Signature
Signature Guarantee: ____________________
Number of Units evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
B-11
If shares of Common Stock or REGISTERED HOLDER
Stripped Units Certificates are
to be registered in the name of
and delivered to and Pledged
Treasury Securities are to be
transferred to a Person other Please print name and address of
than the Holder, please print Registered Holder:
such Person's name and address:
_____________________________________ ______________________________________
Name Name
_____________________________________ ______________________________________
Address Address
_____________________________________ ______________________________________
_____________________________________ ______________________________________
_____________________________________ ______________________________________
Social Security or other Taxpayer
Identification Number, if any ______________________________________
Transfer instructions for Pledged Treasury Securities transferable upon Early
Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
B-12
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Amount of Stated Amount of
increase in the Global Signature of
Amount of Stated Certificate authorized
decrease in Stated Amount of the following such signatory
Amount of the Global decrease of of Purchase
Date Global Certificate Certificate Increase Contract Agent
---- ------------------ ----------- -------- --------------
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL PURCHASE AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Re: 9.50% Equity Security Units of TECO Energy, Inc. (the
"Company"), and TECO Capital Trust II
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of January 15, 2002, among TECO, yourselves, as Collateral
Agent, Custodial Agent and Securities Intermediary, and ourselves, as Purchase
Contract Agent and as attorney-in-fact for the holders of [Normal Units]
[Stripped Units] from time to time, that the holder of securities listed below
(the "Holder") has elected to substitute [$ _______ aggregate principal amount
of Treasury Securities (CUSIP No. 000000XX0)] [$_______ stated liquidation
amount of Trust Preferred Securities or the appropriate Treasury Consideration,
as the case may be,] in exchange for the related [Pledged Trust Preferred
Securities or Pledged Treasury Consideration, as the case may be (CUSIP No.
000000XX0),] [Pledged Treasury Securities] held by you in accordance with the
Pledge Agreement and has delivered to us a notice stating that the Holder has
transferred [Treasury Securities] [Trust Preferred Securities or the appropriate
Treasury Consideration, as the case may be,] to you, as Collateral Agent. We
hereby instruct you, upon receipt of such [Pledged Treasury Securities] [Pledged
Trust Preferred Securities or Pledged Treasury Consideration, as the case may
be], and upon the payment by such Holder of any applicable fees, to release the
[Trust Preferred Securities or Treasury Consideration, as the case may be,]
[Treasury Securities] related to such [Normal Units] [Stripped Units] to us in
accordance with the Holder's instructions.
Date:_______________________
THE BANK OF NEW YORK
By:_____________________________________
Name:
Title:
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Trust Preferred Securities or Pledged Treasury
Consideration, as the case may be,] for the [Pledged Trust Preferred Securities
or Pledged Treasury Consideration, as the case may be,] [Pledged Treasury
Securities]:
C-1
______________________________________ _____________________________________
Name: Social Security or other Taxpayer
Identification Number, if any
_____________________________________
Address
_____________________________________
_____________________________________
C-2
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Re: 9.50% Equity Security Units of TECO Energy, Inc. (the
"Company"), and TECO Capital Trust II
The undersigned Holder hereby notifies you that it has delivered to
[insert name], as Collateral Agent, Custodial Agent and Securities Intermediary
[$_________ aggregate principal amount of Treasury Securities] [$_________
stated liquidation amount of Trust Preferred Securities or the appropriate
Treasury Consideration, as the case may be,] in exchange for the related
[Pledged Trust Preferred Securities or Pledged Treasury Consideration as the
case may be,] [Pledged Treasury Securities] held by the Collateral Agent, in
accordance with Section 4.1 of the Pledge Agreement, dated as of January 15,
2002, among you, TECO, the Collateral Agent, Custodial Agent and Securities
Intermediary. The undersigned Holder has paid the Collateral Agent all
applicable fees relating to such exchange. The undersigned Holder hereby
instructs you to instruct the Collateral Agent to release to you on behalf of
the undersigned Holder the [Pledged Trust Preferred Securities or Pledged
Treasury Consideration, as the case may be,] [Pledged Treasury Securities]
related to such [Normal Units] [Stripped Units].
Date: ____________________________________
By:_________________________________
____________________________________
Signature Guarantee:
D-1
Dated:
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name: Social Security or other Taxpayer
Identification Number, if any
_____________________________________
Address
_____________________________________
_____________________________________
D-2
EXHIBIT E
FORM OF REMARKETING AGREEMENT
[Attached]
-1-
