Exhibit 10.1
EXECUTION COPY
$380,000,000
TECO ENERGY, INC.
10.50% NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
November 15, 2002
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
TECO Energy, Inc., a Florida corporation (the "COMPANY"), proposes
to issue and sell to Credit Suisse First Boston Corporation (the "INITIAL
PURCHASER"), upon the terms set forth in a purchase agreement of even date
herewith (the "PURCHASE AGREEMENT"), $380,000,000 aggregate principal amount of
its 10.50% Notes due 2007 (the "INITIAL SECURITIES"). The Initial Securities
will be issued pursuant to an Indenture, dated as of August 17, 1998 (the
"INDENTURE"), among the Company and The Bank of New York, as trustee (the
"TRUSTEE"). As an inducement to the Initial Purchaser to enter into the Purchase
Agreement, the Company agrees with the Initial Purchaser, for the benefit of the
Initial Purchaser and the holders of the Securities (as defined below)
(collectively the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable
law, the Company shall prepare and, not later than 60 days (such 60th day being
a "FILING DEADLINE") after the date on which the Initial Purchaser purchases the
Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file
with the Securities and Exchange Commission (the "COMMISSION") a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with
respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof), who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders, in exchange for
the Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall use its reasonable best efforts to (i) cause
such Exchange Offer Registration Statement to become effective under the
Securities Act as soon as practicable and in any event within 120 days after the
Closing Date (such 120th day being an "EFFECTIVENESS DEADLINE") and (ii) keep
the Exchange Offer Registration Statement effective for not less than 30 days
(or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"EXCHANGE OFFER REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company
(i) will be entitled to consummate the Registered Exchange Offer 30 days after
such commencement (provided that the Company has accepted all the Initial
Securities theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer) and (ii) will be required to consummate the
Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day being
the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company, the Initial Purchaser and each Exchanging Dealer (as
defined herein) acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder that is a broker-dealer electing
to exchange Initial Securities, acquired for its own account as a result of
market making activities or other trading activities, for Exchange Securities
(an "EXCHANGING DEALER"), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and (c) Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) if the
Initial Purchaser elects to sell Securities (as defined below) acquired in
exchange for Initial Securities constituting any portion of an unsold allotment,
it is required to deliver a prospectus containing the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
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The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, however, that (i) in the
case where such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer or the Initial Purchaser, such period shall be
the lesser of 180 days and the date on which all Exchanging Dealers and the
Initial Purchaser have sold all Exchange Securities held by them (unless such
period is extended pursuant to Section 3(j) below) and (ii) the Company shall
make such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 180 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, the Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
the Initial Purchaser upon the written request of the Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by the Initial
Purchaser, a like principal amount of debt securities of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the
date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain
open; and
(e) otherwise comply with all laws applicable to the
Registered Exchange Offer.
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As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer
and the Private Exchange;
(y) deliver to the Trustee for cancellation all the
Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver
promptly to each Holder of the Initial Securities, Exchange
Securities or Private Exchange Securities, as the case may be, equal
in principal amount to the Initial Securities of such Holder so
accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Initial Securities surrendered in exchange therefor or, if no interest has
been paid on the Initial Securities, from the date of original issue of the
Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus
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forming part thereof and any supplement thereto complies in all material
respects with the Securities Act and the rules and regulations thereunder, (ii)
any Exchange Offer Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading and (iii) any prospectus forming part of
any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
160th day after the Closing Date, (iii) the Initial Purchaser so requests with
respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following consummation of the Registered Exchange Offer or
(iv) any Holder is not eligible to participate in the Registered Exchange Offer
or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests, the Company shall take the following actions (the date on
which any of the conditions described in the foregoing clauses (i) through (iv)
occur, including in the case of clauses (iii) or (iv) the receipt of the
required notice, being a "TRIGGER DATE"):
(a) The Company shall promptly (but in no event more
than 60 days after the Trigger Date (such 60th day being a "FILING
DEADLINE")) file with the Commission and thereafter use its best
efforts to cause to be declared effective as soon as practicable and
in any event no later than 120 days after the Trigger Date (such
120th day being an "EFFECTIVENESS DEADLINE") a registration
statement (the "SHELF REGISTRATION STATEMENT" and, together with the
Exchange Offer Registration Statement, a "REGISTRATION STATEMENT")
on an appropriate form under the Securities Act relating to the
offer and sale of the Transfer Restricted Securities by the Holders
thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule
415 under the Securities Act (hereinafter, the "SHELF
REGISTRATION"); provided, however, that no Holder (other than the
Initial Purchaser) shall be entitled to have the Securities held by
it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective in
order to permit the prospectus
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included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the date of
its effectiveness or such shorter period that will terminate when
all the Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any
successor rule thereof) (the "SHELF REGISTRATION PERIOD"). The
Company shall be deemed not to have used its reasonable best efforts
to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would
result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless such
action is required by applicable law or otherwise permitted
hereunder.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf
Registration Statement and the related prospectus and any amendment
or supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and
(ii) other than with respect to information included therein in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Holder specifically for use
therein (the "HOLDERS' INFORMATION"), not to contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a copy
of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the
event that the Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the
Company shall use its reasonable best efforts to reflect in each
such document, when so filed with the Commission, such comments as
the Initial Purchaser reasonably may propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose
of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and include the information
set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; (iii) if requested by the
Initial Purchaser, include the information required by Items 507 or
508 of
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Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchaser, which
shall contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT")) of Exchange Securities
received by such broker-dealer in the Registered Exchange Offer (a
"PARTICIPATING BROKER-DEALER"), whether such positions or policies
have been publicly disseminated by the staff of the Commission or
such positions or policies, in the reasonable judgment of the
Initial Purchaser based upon advice of counsel (which may be
in-house counsel), represent the prevailing views of the staff of
the Commission; and (v) in the case of a Shelf Registration
Statement, include the names of the Holders who propose to sell
Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company shall give written notice to the Initial
Purchaser, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written
notice that it will be a Participating Broker-Dealer in the
Registered Exchange Offer (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of
the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement
or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its
legal counsel of any notification with respect to the
suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that
requires the Company to make changes in the Registration
Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain
an untrue statement of a material fact nor omit to state
a material fact required to be
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stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the
circumstances under which they were made) not
misleading.
(c) The Company shall make every reasonable effort to
obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration,
without charge, at least one copy of the Shelf Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests
in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer
and the Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any Initial Purchaser or
any such Holder requests, all exhibits thereto (including those
incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the
coverage of the Shelf Registration, without charge, as many copies
of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the
selling Holders of the Securities in connection with the offering
and sale of the Securities covered by the prospectus, or any
amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver to the Initial Purchaser,
any Exchanging Dealer, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the
Registered Exchange Offer, without charge, as many copies of the
final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by the Initial Purchaser, if
necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange
Securities covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
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(h) Prior to any public offering of the Securities
pursuant to any Registration Statement the Company shall register or
qualify or cooperate with the Holders of the Securities included
therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in
writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is
not then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the Securities
pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period
for which the Company is required to maintain an effective
Registration Statement, the Company shall promptly prepare and file
a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required document
so that, as thereafter delivered to Holders of the Securities or
purchasers of Securities, the prospectus (other than the Holders'
Information) will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were
made) not misleading; provided, however, that the Company may delay
filing and distributing any such supplement or amendment if there is
a possible acquisition or business combination or other transaction
involving the Company that would require disclosure in the
Registration Statement or the related prospectus, and the Company
determines in the exercise of its reasonable judgment that such
disclosure is not in the best interest of the Company and its
stockholders at such time; and provided, further, that the Company
will not be entitled to delay filing or distributing any such
supplement or amendment for more than twenty (20) days (whether or
not consecutive) in any period of twelve (12) consecutive months. If
the Company notifies the Initial Purchaser, the Holders of the
Securities and any known Participating Broker-Dealer in accordance
with paragraphs (ii) through (v) of Section 3(b) above to suspend
the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchaser, the Holders
of the Securities and any such Participating Broker-Dealers shall
suspend use of such prospectus and discontinue disposition of such
Securities until such Holder's
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receipt of copies of the supplemental or amended prospectus or until
advised in writing by the Company that use of the applicable
prospectus may be resumed, and the period of effectiveness of the
Shelf Registration Statement provided for in Section 2(b) above and
the Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and
including the date of the giving of such notice to and including the
date when the Initial Purchaser, the Holders of the Securities and
any known Participating Broker-Dealer shall have received such
amended or supplemented prospectus or authorization to resume use of
the applicable prospectus pursuant to this Section 3(j); provided,
however, that such period of effectiveness including any such
extension shall not exceed the holding period applicable to Rule
144(k) of the Securities Act or any substitution or modification
thereof.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, and provide the applicable
trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository Trust
Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are
applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act, no later than 45 days after
the end of a 12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under
the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to
be sold pursuant to the Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the
distribution of the Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
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(o) The Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as any
Holder of the Securities shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Shelf
Registration.
(p) In the case of any Shelf Registration, the Company
shall (i) make reasonably available for inspection by the Holders of
the Securities, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement and any attorney,
accountant or other agent retained by the Holders of the Securities
or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii)
cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by
the Holders of the Securities or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that
the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchaser and on behalf of the
other parties, by one counsel designated by and on behalf of such
other parties as described in Section 4 hereof; and, provided
further, that such persons shall maintain in confidence and use
solely for the purposes of exercising their rights under this
Agreement any information that is reasonably and in good faith
designated by the Company as confidential at the time of delivery of
such information, until such time as (i) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in
connection with the filing of any Registration Statement or the use
of any prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard by such person, or
(iv) such information becomes available to such person from a source
other than the Company and, to the knowledge of such person after
reasonable inquiry, such source is not bound by a confidentiality
agreement.
(q) In the case of any Shelf Registration, the Company,
if requested by Holders of a majority in aggregate principal amount
of Securities covered thereby, their counsel or managing
underwriter, if any, shall cause Xxxxxx & Dodge LLP, counsel for the
Company, to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the
managing underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf Registration
Statement, and solely to the effect that:
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(i) The Company has been duly incorporated
and is a validly existing corporation in good standing
under the laws of the State of Florida, with corporate
power and authority to own, lease and operate its
properties and conduct its business as described in
the Shelf Registration Statement and the related
prospectus, and any amendment or supplement thereto,
and to enter into and perform its obligations under
the relevant agreement referred to in Section 3(o)
hereof and the Indenture;
(ii) Each of the Securities and the
Indenture has been duly authorized, executed and
delivered by the Company; the Securities have been
validly issued and conform as to legal matters to the
description thereof contained in the prospectus, as
then amended or supplemented; the Securities and the
Indenture constitute valid and binding obligations of
the Company, enforceable against the Company in
accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally
and general equitable principles; and the Securities
are entitled to the benefits of the Indenture;
(iii) No filing, registration, or
qualification with, or authorization, approval,
consent, license, order or decree of, any court or
governmental agency or body is necessary or required
in connection with the due authorization, execution
and delivery of the relevant agreement of the type
referred to in Section 3(o) hereof or the Indenture or
for the issuance or delivery of the Securities by the
Company, except such as have been obtained or made
under the Securities Act, the applicable rules and
regulations thereunder, and the Trust Indenture Act or
such as may be required under state securities laws as
to which such counsel need express no opinion;
(iv) The execution, delivery and
performance by the Company of the relevant agreement
of the type referred to in Section 3(o) hereof, the
Securities and the Indenture, and the consummation of
the transactions contemplated by such agreement and in
the Shelf Registration Statement, do not and will not,
whether with or without the giving of notice or lapse
of time or both, (i) violate, constitute a breach of,
or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to any
agreement or instrument that is listed as an exhibit
to the Company's Form 10-K for the year ended December
31, 2001 or any of the Company's Forms 10-Q or 8-K
filed thereafter but on or prior to the date of such
opinion, or (ii) violate (x) the charter or by-laws of
the Company, (y) any applicable statute or rule or
regulation, or (z) any judgment, order, writ or decree
known to such counsel of any government, government
instrumentality or court;
-12-
(v) The Company is not an "investment
company" as defined in the Investment Company Act of
1940;
(vi) The Indenture has been duly qualified
under the Trust Indenture Act;
(vii) The relevant agreement referred to
in Section 3(o) hereof has been duly authorized,
executed and delivered by the Company;
(viii) The Company is exempt from the
provisions of the Public Utility Holding Company Act,
except Section 9(a)(2) thereof relating to the
acquisition of securities of other public utility
companies;
(ix) The Shelf Registration Statement has
become effective under the Securities Act, the related
prospectus, as amended or supplemented, was filed with
the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion within the time
period required by Rule 424(b) and, to the knowledge
of such counsel, no stop order suspending the
effectiveness of the Shelf Registration Statement or
any part thereof has been issued under the Securities
Act and no proceedings for that purpose have been
instituted or are pending or threatened by the
Commission;
(x) The Shelf Registration Statement, the
related prospectus, excluding the documents
incorporated by reference therein, and each amendment
or supplement thereto, excluding the documents
incorporated by reference therein, as of their
respective effective or issue dates (other than the
financial statements and supporting schedules included
therein or omitted therefrom and the statements of
Eligibility on Form T-1 of the Trustee, as to which
such counsel need not express an opinion) complied as
to form in all material respects with the requirements
of the Securities Act, the applicable rules and
regulations thereunder and the Trust Indenture Act;
(xi) The documents incorporated by
reference in the related prospectus and each amendment
or supplement thereto (other than the financial
statements and supporting schedules included therein
or omitted therefrom and the statements of Eligibility
on Form T-1 of the Trustee, as to which such counsel
need not express an opinion), when they became
effective or were filed with the Commission or as
subsequently amended prior to the date of the relevant
agreement of the type referred to in Section 3(o), as
the case may be, complied as to form in all material
respects with the requirements of the Exchange Act and
the Rules and Regulations thereunder; and
-13-
(xii) The statements made in the
prospectus, as amended or supplemented, under the
caption "Description of the Notes" or such similar
caption, insofar as such statements purport to
constitute a summary of the terms of any of the
Indenture or the Securities, constitute an accurate
summary thereof in all material respects.
In giving such opinion, such counsel may limit its
opinion to the law of The Commonwealth of Massachusetts and the
federal law of the United States, and such counsel may rely as to
all matters governed by the laws of jurisdictions other than the law
of The Commonwealth of Massachusetts and the federal law of the
United States, upon the opinion of counsel satisfactory to the
Holders of a majority in aggregate principal amount of the
Securities covered by the Shelf Registration Statement, their
counsel or their managing underwriters, if any. Such counsel may
also state that it has relied upon certificates of public officials
and, insofar as such opinion involves factual matters, it has relied
upon certificates of officers of the Company. In rendering its
opinion, such counsel may rely as to matters of Florida law upon the
opinion of Xxxxxx X. XxXxxxxx, Esq., and may assume the due
authorization, execution and delivery of all documents by parties
thereto, other than the Company. Such counsel shall also make a
customary statement, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, that no facts
have come to such counsel's attention that causes such counsel to
believe that the Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and any documents
incorporated by reference therein contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); and a customary
statement that no facts have come to such counsel's attention that
causes such counsel to believe that the prospectus included in the
Shelf Registration Statement, as of its issue date or any closing
date, or any amendment or supplement thereto, as of its issue date
or any closing date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that such
counsel need express no comment as to the Forms T-1 or the financial
statements, including the notes thereto and supporting schedules, or
other financial information and data contained in the Shelf
Registration Statement of the prospectus, as amended or
supplemented. With respect to such statement, such counsel may state
that its belief is based upon procedures set forth therein
satisfactory to the Holders of a majority in aggregate principal
amount of Securities, their counsel or managing underwriter but is
without independent investigation or verification.
-14-
(r) The Company, if requested by Holders of a majority
in aggregate principal amount of Securities covered by the Shelf
Registration Statement, their counsel or the managing underwriters,
if any, shall further cause its general counsel to deliver an
opinion and updates thereof relating to the Securities in customary
form addressed to such Holders and the managing underwriters, if
any, thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement, and solely to
the effect that:
(i) The Company has been duly incorporated
and is a validly existing corporation in good standing
under the laws of the State of Florida, with corporate
power and authority to own, lease and operate its
properties and conduct its business as described in
the Shelf Registration Statement and the related
prospectus, and any amendment or supplement thereto,
and to enter into and perform its obligations under
the relevant agreement referred to in Section 3(o)
hereof and the Indenture;
(ii) Each significant subsidiary (as such
term is defined in Rule 1-02 of Regulation S-X, each a
"Significant Subsidiary") has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, and has corporate power and authority
to own, lease and operate its properties and to
conduct its business as described in the Shelf
Registration Statement and the related prospectus, and
any amendment or supplement thereto; except as
otherwise disclosed in the prospectus, and any
amendment or supplement thereto, all of the issued and
outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned
of record and, to the best of such counsel's
knowledge, beneficially, by the Company, directly or
indirectly through subsidiaries of the Company, free
and clear of any lien, encumbrance or defect; and none
of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of the
preemptive or, to the best of such counsel's
knowledge, similar rights of any securityholder of
such Significant Subsidiary;
(iii) Each of the Securities and the
Indenture has been duly authorized, executed and
delivered by the Company; the Securities have been
validly issued and conform as to legal matters to the
description thereof contained in the prospectus, as
then amended or supplemented, and the Securities and
the Indenture constitute valid and binding obligations
of the Company, enforceable against the Company in
accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally
and general equitable principles;
-15-
(iv) All descriptions in the Shelf
Registration Statement of written contracts and other
documents to which the Company is a party are accurate
in all material respects; to the knowledge of such
counsel, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or
referred to in the Shelf Registration Statement or to
be filed as exhibits thereto other than those
described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct
in all material respects.
(v) No filing, registration or
qualification with, or authorization, approval,
consent, license, order or decree of, any court or
governmental agency or body (including without
limitation the Florida Public Service Commission) is
necessary or required in connection with the due
authorization, execution and delivery of the relevant
agreement of the type referred to in Section 3(o)
hereof or the Indenture or for the issuance or
delivery of the Securities by the Company, except such
as may be required under state securities laws as to
which such counsel need express no opinion;
(vi) The execution, delivery and
performance by the Company of the relevant agreement
of the type referred to in Section 3(o) hereof and the
Indenture, and the consummation of the transactions
contemplated by such agreement and the Shelf
Registration Statement do not and will not, whether
with or without the giving of notice or lapse of time
or both, (i) violate, constitute a breach of, or
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to any agreement or
instrument that is listed as an exhibit to the
Company's Form 10-K for the year ended December 31,
2001 or any of the Company's Forms 10-Q or 8-K filed
thereafter but on or prior to the date of such
opinion, or (ii) violate (x) the charter or by-laws of
the Company or any Significant Subsidiary, (y) any
applicable statute, rule or regulation, or (z) any
judgment, order, writ or decree known to such counsel
of any government, government instrumentality or
court; and
(vii) the relevant agreement of the type
referred to in Section 3(o) hereof has been duly
authorized, executed and delivered by the Company;
In giving such opinion, such counsel may limit her
opinion to the law of the State of Florida, and such counsel may
rely as to all matters governed by the laws of jurisdictions other
than the law of the State of Florida, upon the opinion of counsel
satisfactory to the Holders of a majority in aggregate principal
amount of the Securities covered by the Shelf Registration
Statement, their counsel or their
-16-
managing underwriters, if any. Such counsel may assume the due
authorization, execution and delivery of documents by the parties
thereto, other than the Company. Such counsel shall also make a
customary statement, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, that no facts
have come to such counsel's attention that causes such counsel to
believe that the Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and any documents
incorporated by reference therein contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); and a customary
statement that no facts have come to such counsel's attention that
causes such counsel to believe that the prospectus, as of its issue
date or any closing date, or any amendment or supplement thereto, as
of its issue date or any closing date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it
being understood that such counsel need express no comment as to the
Forms T-1 or the financial statements, including the notes thereto
and supporting schedules, or other financial information and data
contained in the Shelf Registration Statement of the prospectus, as
amended or supplemented. With respect to such statement, such
counsel may state that its belief is based upon procedures set forth
therein satisfactory to the Holders of a majority in aggregate
principal amount of Securities, their counsel or managing
underwriter but is without independent investigation or
verification.
(s) The Company, if requested by Holders of a majority
in aggregate principal amount of Securities covered by the Shelf
Registration Statement, their counsel or the managing underwriters,
if any, shall further cause (i) its officers to execute and deliver
all customary documents and certificates and updates thereof
requested by any underwriters of the applicable Securities; and (ii)
its independent public accountants to provide to the selling Holders
of the applicable Securities and any underwriter therefor a comfort
letter and updates thereof in customary form and covering matters of
the type customarily covered in comfort letters in connection with
primary underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
(t) In the case of the Registered Exchange Offer, if
requested by the Initial Purchaser or any known Participating
Broker-Dealer, the Company shall cause (i) its counsel to deliver to
the Initial Purchaser or such Participating Broker-Dealer signed
opinions in the form set forth in Section 6(c) and 6(d) of the
Purchase Agreement with such changes as are customary in connection
with the preparation of a Registration Statement and (ii) its
independent public accountants
-17-
to deliver to the Initial Purchaser or such Participating
Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section
6(a) of the Purchase Agreement, with appropriate date changes.
(u) If a Registered Exchange Offer or a Private Exchange
is to be consummated, upon delivery of the Initial Securities by
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company shall xxxx, or
cause to be marked, on the Initial Securities so exchanged that such
Initial Securities are being canceled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be;
in no event shall the Initial Securities be marked as paid or
otherwise satisfied.
(v) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct Rules (the
"RULES") of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent
underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(w) The Company shall use its reasonable best efforts to
take all other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses.
(a) All expenses incident to the Company's performance
of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or
becomes effective, including without limitation;
(i) all registration and filing fees and
expenses;
-18-
(ii) all fees and expenses of compliance
with federal securities and state "blue sky" or
securities laws;
(iii) all expenses of printing (including
printing certificates for the Securities to be issued
in the Registered Exchange Offer and the Private
Exchange and printing of prospectuses), messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel
for the Company;
(v) all application and filing fees in
connection with listing the Exchange Securities on a
national securities exchange or automated quotation
system pursuant to the requirements hereof; and
(vi) all fees and disbursements of
independent certified public accountants of the
Company (including the expenses of any special audit
and comfort letters required by or incident to such
performance).
Notwithstanding the foregoing, in no event shall the Company be
responsible for underwriting discounts or commissions or brokerage
fees or commissions incurred by the selling Holders in connection
with a Shelf Registration Statement. The Company will bear its
internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees
and expenses of any person, including special experts, retained by
the Company. The Holders participating in any underwritten offering
shall be responsible for any underwriting discounts and commissions
and fees and expenses of counsel to the managing underwriters and
the selling securityholders to the extent not required to be paid by
the Company pursuant to this Section 4.
(b) In connection with any Registration Statement
required by this Agreement, the Company will reimburse the Initial
Purchaser and the Holders of Transfer Restricted Securities who are
tendering Initial Securities in the Registered Exchange Offer and/or
selling or reselling Securities pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement
or the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who
shall be Ropes & Xxxx unless another firm shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being
prepared.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Holder of the Securities, any Participating Broker-Dealer and
each person, if any, who
-19-
controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are
referred to collectively as the "INDEMNIFIED PARTIES") from and
against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained
in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of, or are based upon, the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action in respect thereof; provided, however,
that (i) the Company shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any
untrue statement or omission or alleged untrue statement or omission
made in any preliminary prospectus relating to a Shelf Registration
Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned,
to the extent that a prospectus relating to such Securities was
required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such
Holder or Participating Broker-Dealer results from the fact that
there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Securities to such person,
a copy of the final prospectus if such loss, claim, damage or
liability is determined by a court of competent jurisdiction to
arise out of an untrue statement or omission that was corrected in
the final prospectus and the Company had previously furnished
sufficient copies thereof to such Holder or Participating
Broker-Dealer in sufficient time to enable such Holder or
Participating Broker-Dealer to deliver to such person such
prospectus; provided further, however, that this indemnity agreement
will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify
underwriters, their officers and directors and each
-20-
person who controls such underwriters within the meaning of the
Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not
jointly, will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was
made in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal or
other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling
persons.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or
proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a)
or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party
will not be liable to such indemnified party under this Section 5
for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with
-21-
the defense thereof. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement
(i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such
action, and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section
5 is unavailable or insufficient to hold harmless an indemnified
party under subsections (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to
reflect the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The relative
fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the
one hand or such Holder or such other indemnified party, as the case
may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding
any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess
of the amount by which the net proceeds received by such Holders
from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls
such indemnified party within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company.
-22-
(e) The agreements contained in this Section 5 shall
survive the sale of the Securities pursuant to a Registration
Statement and shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with
respect to the Transfer Restricted Securities shall be assessed as
follows if any of the following events occur (each such event in
clauses (i) through (iv) below being herein called a "REGISTRATION
DEFAULT"):
(i) any Registration Statement required by
this Agreement is not filed with the Commission on or
prior to the applicable Filing Deadline;
(ii) any Registration Statement required
by this Agreement is not declared effective by the
Commission on or prior to the applicable Effectiveness
Deadline;
(iii) the Registered Exchange Offer has
not been consummated on or prior to the Consummation
Deadline; or
(iv) any Registration Statement required
by this Agreement has been declared effective by the
Commission but (A) such Registration Statement
thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus
ceases to be usable (except as permitted in paragraph
(b)) in connection with resales of Transfer Restricted
Securities during the periods specified herein because
either (1) any event occurs as a result of which the
related prospectus forming part of such Registration
Statement would include any untrue statement of a
material fact or omit to state any material fact
necessary to make the statements therein in the light
of the circumstances under which they were made not
misleading, or (2) it shall be necessary to amend such
Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default
whatever the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company or pursuant to operation of
law or as a result of any action or inaction by the Commission.
Additional Interest shall accrue on the Transfer Restricted
Securities over and above the interest set forth in the title of the Transfer
Restricted Securities from and
-23-
including the date on which any such Registration Default shall occur to but
excluding the date on which all such Registration Defaults have been cured, at a
rate of 0.50% per annum (the "ADDITIONAL INTEREST RATE") for the first 90-day
period immediately following the occurrence of such Registration Default. The
Additional Interest Rate shall increase by an additional 0.50% per annum with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum Additional Interest Rate of 2.0% per annum.
(b) A Registration Default referred to in Section
6(a)(iv) hereof shall be deemed not to have occurred and be
continuing in relation to a Shelf Registration Statement or the
related prospectus if (i) such Registration Default has occurred
solely as a result of (x) the filing of a post-effective amendment
to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus
or (y) other material events, with respect to the Company that would
need to be described in such Shelf Registration Statement or the
related prospectus and (ii) in the case of clause (y), the Company
is either proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus
to describe such events or the Company has delayed filing and
distributing such amendment or supplement pursuant to the first and
second provisos of the first sentence of Section 3(j) of this
Agreement; provided, however, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days,
Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to
Section 6(a) will be payable in cash on the regular interest payment
dates with respect to the Transfer Restricted Securities. The amount
of Additional Interest will be determined by multiplying the
applicable Additional Interest Rate by the principal amount of the
Transfer Restricted Securities and further multiplied by a fraction,
the numerator of which is the number of days such Additional
Interest Rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security
until (i) the date on which such Security has been exchanged by a
person other than a broker-dealer for a freely transferable Exchange
Security in the Registered Exchange Offer, (ii) following the
exchange by a broker-dealer in the Registered Exchange Offer of an
Initial Security for an Exchange Security, the date on which such
Exchange Security is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement,
(iii) the date on which
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such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Security is distributed to
the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of their securities pursuant to Rules 144 and
144A. The Company covenants that it will take such further action as any Holder
of Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Initial Securities identified to the Company by the
Initial Purchaser upon request. Upon the request of any Holder of Initial
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering, subject to the approval
of the Company (which shall not be unreasonably withheld) and provided that at
least 10% of the outstanding Transfer Restricted Securities are included in such
underwritten offering. The Company shall not be obligated to arrange for more
than two underwritten offerings during the Shelf Registration Period.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that
any failure by the Company to comply with its obligations under
Section 1 and 2 hereof may result in material irreparable injury to
the Initial Purchaser or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure
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damages for such injuries precisely and that, in the event of any
such failure, the Initial Purchaser or any Holder may obtain such
relief as may be required to specifically enforce the Company's
obligations under Sections 1 and 2 hereof. The Company further
agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on
or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be
given, except by the Company and the written consent of the Holders
of a majority in principal amount of the Securities affected by such
amendment, modification, supplement, waiver or consents. Without the
consent of the Holder of each Security, however, no modification may
change the provisions relating to the payment of Additional
Interest.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand
delivery, first-class mail, facsimile transmission, or air courier
which guarantees overnight delivery:
(1) if to a Holder of the Securities, at
the most current address given by such Holder to the
Company.
(2) if to the Initial Purchaser;
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
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(3) if to the Company, at its address as
follows:
TECO Energy, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: General Counsel
with a copy to:
Xxxxxx & Dodge LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Xx.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be
third party beneficiaries to the agreements made hereunder between
the Company, on the one hand, and the Initial Purchaser, on the
other hand, and shall have the right to enforce such agreements
directly to the extent they may deem such enforcement necessary or
advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and
the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is
held invalid, illegal or
-27-
unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent
or approval of Holders of a specified percentage of principal amount
of Securities is required hereunder, Securities held by the Company
or its affiliates (other than subsequent Holders of Securities if
such subsequent Holders are deemed to be affiliates solely by reason
of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Submission to Jurisdiction. The Company hereby
submits to the non-exclusive jurisdiction of the Federal and state
courts in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President/Treasury
and Risk Management and
Treasurer
The foregoing Registration
Rights Agreement is hereby
confirmed and accepted as
of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 200 , all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
--------
(1) In addition, the legend, if any, required by Item 502(b) of Regulation S-K
will appear on the inside front cover page of the Exchange Offer prospectus
below the Table of Contents.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:_______________________________________
Address:____________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
