EXHIBIT 1
FLORIDA PUBLIC UTILITIES COMPANY
$15,000,000
___% SECURED INSURED QUARTERLY NOTES
DUE OCTOBER 1, 2031
UNDERWRITING AGREEMENT
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___________, 2001
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Gentlemen:
The undersigned, Florida Public Utilities Company, a Florida corporation
(the "Company"), hereby confirms its agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
(the "Underwriter") as follows:
1. Offering. The Company proposes to issue and sell to the Underwriter
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an aggregate principal amount of $15,000,000 of its ____% Secured Insured
Quarterly Notes due October 1, 2031 (the "IQ Notes"). The IQ Notes are to be
issued pursuant to an Indenture of Trust dated as of September 1, 2001 (the
"Indenture") between the Company and SunTrust Bank, as trustee (the
"Trustee"). Prior to the Substitution Date (as described in the Indenture),
the IQ Notes will be secured by the delivery to the Trustee of one or more
first mortgage bonds issued under the Company's mortgage indenture, as
specified in the Prospectus referred to below (the "Pledged Bonds"). The IQ
Notes are more particularly described in the Prospectus (as hereinafter
defined) and in the form of Indenture filed as an exhibit to the
Registration Statement (as hereinafter defined). No amendment to such form
of Indenture will be made prior to the Closing Date, hereinafter defined,
without your prior approval.
2. Sale and Delivery of the IQ Notes. Subject to the terms and
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conditions and based upon the representations and warranties set forth in
this Agreement, (a) the Company agrees to issue and sell $15,000,000 in
aggregate principal amount of IQ Notes to the Underwriter and (b) the
Underwriter agrees to purchase from the Company the aggregate principal
amount of the IQ Notes at a price of __% of the principal amount thereof.
The Underwriter agrees to make a public offering of the IQ Notes
promptly after the Registration Statement shall have become effective, at
the public offering price and upon the terms and conditions set forth in the
Prospectus. The Underwriter may reserve and sell such of the IQ Notes
purchased by the Underwriter, as the Underwriter may elect, to dealers
chosen by it
(the "Selected Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers concessions as established
by the Underwriter, for re-offering by Selected Dealers to the public at the
public offering price.
Delivery of the IQ Notes and payment therefor, shall be made to the
Underwriter at 9:00 A.M., St. Louis time, on __________, 2001, or on such
later day and time (not later than seven full business days thereafter) as
may be agreed upon in writing between the Underwriter and the Company, such
day and time of delivery and payment being herein called the "Closing Date."
On the Closing Date, the IQ Notes shall be delivered by the Company to
the Underwriter at its office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ and/or at The Depository Trust Company in New York, New York, as
designated by the Underwriter, against payment of the purchase price
therefor in funds immediately available to the Company. The Company agrees
to make available to the Underwriter for inspection and packaging in St.
Louis, Missouri, at least one full business day prior to the Closing Date,
the IQ Notes so to be delivered in good delivery form and in such
denominations and registered in such names as the Underwriter shall have
requested, all such requests to have been made in writing at least two full
business days prior to the Closing Date.
3. Representations and Warranties of the Company. The Company
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represents and warrants to the Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act") and has prepared a
registration statement on Form S-3 (Registration No. 333-________) for
the registration of the IQ Notes and one or more amendments thereto in
conformity with the requirements of the Act and all applicable
instructions and the published rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") under the Act and has filed such registration statement
and amendments with the Commission. Copies of such registration
statement and amendments (including all forms of preliminary
prospectus) have been delivered to the Underwriter, and the Company
will not, before the registration statement becomes effective, file any
other amendment thereto or supplement to which you reasonably object in
writing after being furnished with a copy thereof. Such registration
statement, including all prospectuses included as a part thereof, all
financial schedules and exhibits thereto and all documents incorporated
by reference therein, as amended at the time when it becomes effective,
is herein called the "Registration Statement," and the term
"Prospectus" as used herein means the prospectus, including the
documents incorporated by reference therein, in the form first filed by
the Company pursuant to Rule 424(b) under the Act. The term
"preliminary prospectus" as used herein means any preliminary
prospectus included at any time as part of the Registration Statement,
including the documents incorporated by reference therein.
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus, at the time of the filing thereof with the Commission, did
not include 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 not misleading; provided, however, that
none of the
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representations and warranties in this subparagraph shall apply to
statements in, or omissions from, any preliminary prospectus made in
reliance upon and in conformity with the information furnished to the
Company by or on behalf of the Underwriter contained in, and
specifically for use in, the section entitled "Underwriting" in such
preliminary prospectus.
(c) When the Registration Statement becomes effective and at all
times subsequent thereto up to and including the Closing Date, the
Registration Statement and Prospectus, and all amendments thereof and
supplements thereto, will comply in all material respects with the
provisions of the Act and the Rules and Regulations; when the
Registration Statement becomes effective, and when any post-effective
amendment thereto becomes effective, the Registration Statement (as
amended, if the Company has filed with the Commission any
post-effective amendment thereto) will not contain any 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 when the Registration Statement becomes effective and
at all times subsequent thereto up to and including the Closing Date,
the Prospectus (as amended or supplemented, if the Company has filed
with the Commission any amendment thereof or supplement thereto) will
not 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 not misleading; provided, however, that
none of the representations and warranties in this subparagraph will
apply to statements in, or omissions from, the Registration Statement
or the Prospectus or any amendment thereof or supplement thereto made
in reliance upon and in conformity with information furnished to the
Company by or on behalf of the Underwriter contained in, and
specifically for use in, the section entitled "Underwriting" in the
Registration Statement or the Prospectus or any such amendment or
supplement or to that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of the trustee referred to in the Registration Statement.
(d) The documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations of the Commission
thereunder (the "Exchange Act Rules and Regulations"), and any
documents deemed to be incorporated by reference in the Prospectus
will, when they are filed with the Commission, comply in all material
respects with the requirements of the Exchange Act and the Exchange Act
Rules and Regulations, and will not contain any 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, in the light of
the circumstances under which they are made, not misleading.
(e) As of the time any IQ Notes are issued and sold hereunder,
each of the Indenture and the Indenture of Mortgage and Deed of Trust,
dated as of September 1, 1942, as supplemented and modified by fourteen
supplemental indentures, including the Fourteenth Supplemental
Indenture (the "Original Indenture"), assuming the due execution and
delivery of the Indenture and the Fourteenth Supplemental Indenture by
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the Trustee, will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization,
moratorium, insolvency or other laws now or hereafter in effect
relating to or affecting mortgagees' or other creditors' rights or
general principles of equity (whether asserted in a proceeding at law
or in equity), and the IQ Notes and the Pledged Bonds will each have
been duly authorized, executed, authenticated and, when the IQ Notes
have been paid for by the purchasers thereof, the IQ Notes and the
Pledged Bonds will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture and the Original
Indenture, in each case, as enforceability may be limited by
bankruptcy, reorganization, moratorium, insolvency or other laws now or
hereafter in effect relating to or affecting mortgagees' or other
creditors' rights or general principles of equity (whether asserted in
a proceeding at law or in equity); the IQ Notes, the Pledged Bonds, the
Indenture and the Original Indenture will conform in all material
respects to all statements relating thereto contained in the
Prospectus.
(f) The Company has been duly incorporated and is validly existing
in good standing under the laws of Florida, and is duly qualified as a
foreign corporation for the transaction of business and in good
standing in each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification.
(g) The Company has an authorized and outstanding capitalization
as set forth in the Prospectus and all of the outstanding shares of
Common Stock have been duly and validly authorized.
(h) The Company has full right, power and authority to enter into
this Agreement and to perform all of its obligations hereunder or
contemplated hereby; this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company.
(i) The Company has all requisite power and authority necessary to
own or hold its properties and conduct its business as described in the
Prospectus and owns or holds all material licenses, permits and other
required authorizations from governmental authorities necessary to
conduct the business operated by it.
(j) The Company has good and marketable title to all property
described in the Prospectus as being owned by it, in each case free and
clear of all liens, claims, security interests or other encumbrances
except such as are described in the Prospectus or such as are not
material to the business of the Company; and the property held under
lease by the Company is held by it under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are
not material and do not interfere with the conduct of the business of
the Company.
(k) The Company has good and marketable title to all the real
properties described in the granting clauses of the Original Indenture,
subject (other than properties released from the lien of the Original
Indenture pursuant to the terms thereof) to the lien of the Original
Indenture and no other liens or encumbrances except liens permitted
under the Original Indenture. No further deeds, conveyances, transfers
or instruments,
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other than the Fourteenth Supplemental Indenture and related documents,
are necessary for the purpose of effectually subjecting such properties
to the direct lien and operation of the Original Indenture. The
Mortgage constitutes a valid first mortgage lien of record upon all
real and personal property of the Company (including easements,
rights-of-way, and other rights relating to real estate and franchises)
specifically or generally described or referred to in the Original
Indenture as subject to the lien thereof and owned by the Company at
the time of the actual issue of the IQ Notes and the Pledged Bonds,
subject to no liens or encumbrances other than permitted liens (as
defined in Section 1.05(a) of the Original Indenture) and liens existing
on any property acquired thereafter by the Company at the time of such
acquisition and permitted by Section 5.04 of the Original Indenture, as
modified by the First Supplemental Indenture (the "Permitted Liens").
(l) The Original Indenture has been duly filed for recording in
such manner and in such places as are required by law in order to
establish, preserve, and protect the first lien of the Mortgage on all
real and personal property of the Company specifically or generally
described or referred to in the Original Indenture as subject to the
lien of the Original Indenture (except that (a) additional filings and
recordings of the Original Indenture will be required if property is
acquired by the Company subsequent to the date hereof which is located
in a county where the Original Indenture has not previously been filed
for recording and (b) the Original Indenture will not be a first lien
on property hereafter acquired by the Company which at the time of
acquisition is subject to prior liens or other encumbrances), and all
taxes, fees and other charges payable in connection therewith have been
paid in full.
(m) Except as set forth in the Prospectus, there are no actions,
suits, proceedings, hearings, or to the best of the knowledge of the
Company, any claims or investigations pending, before or by any court,
governmental authority, or instrumentality (or, to the best of the
knowledge of the Company, any state of facts which would give rise
thereto) threatened against the Company or involving any of its
properties, which the Company has reason to believe may result in any
material adverse change in the business, operations, assets, financial
condition or prospects of the Company, or which the Company has reason
to believe may adversely affect the transactions or other acts
contemplated by this Agreement or the validity or enforceability of the
IQ Notes, the Pledged Bonds, the Indenture or this Agreement.
(n) Except as reflected in or contemplated by the Prospectus,
since the respective dates as of which information is given in the
Prospectus and up to and including the Closing Date, the Company has
not incurred, and will not have incurred, any liabilities or
obligations, direct or contingent, which are material to the business
of the Company, or entered into any transaction which is material to
the business of the Company, and there has not been any change in the
capital stock, short-term or long-term debt of the Company which is
material to the business of the Company, or any material adverse
change, or any development specifically related to the business of the
Company involving, in the opinion of the Company, a prospective
material adverse change, in the business, operations, assets, financial
condition or prospects of the Company.
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(o) The issuance and sale of the IQ Notes and the Pledged Bonds,
the execution and delivery of this Agreement, the Indenture and the
Fourteenth Supplemental Indenture by the Company, the consummation of
the transactions contemplated herein and compliance with the terms of
the IQ Notes, the Pledged Bonds, the Indenture, the Fourteenth
Supplemental Indenture and this Agreement will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets
of the Company pursuant to the terms of any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which it is bound or to which any of its
property is subject, except for conflicts, breaches, violations or
defaults which would be immaterial to the business and operations of
the Company and which would not affect the validity or enforceability
of the IQ Notes, the Pledged Bonds, the Indenture, the Fourteenth
Supplemental Indenture or this Agreement or otherwise adversely affect
the rights, duties or obligations of the Trustee, the Underwriter, the
holders of the IQ Notes or the holders of the Pledged Bonds; nor would
such issuance, sale, execution, delivery, consummation or compliance
conflict with or result in a breach or violation of any of the terms or
provisions of or constitute a default under the Certificate of
Incorporation or By-Laws of the Company or any applicable law, rule,
regulation, judgment or decree or order of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its properties. Other than the consent of the
Florida Public Service Commission, no consent, approval, authorization
or order of any court or governmental agency or body is required for
the issuance and sale of the IQ Notes or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except as may be required under the Act, the Trust Indenture
Act, the Rules and Regulations or state securities or Blue Sky laws in
connection with the purchase and distribution of the IQ Notes by the
Underwriter.
(p) The financial statements and schedules of the Company included
or incorporated by reference in the Registration Statement and
Prospectus fairly present, and the financial statements and schedules
of the Company included or incorporated by reference in any amendment
or supplement to the Registration Statement and Prospectus will fairly
present, the financial condition of the Company and the results of its
operations and changes in its financial position as of the dates and
for the periods therein specified; and said financial statements have
been and will be prepared in accordance with generally accepted
accounting principles which have been consistently maintained and
applied throughout the periods involved.
(q) To the best of the Company's knowledge, the accountants who
have certified or shall certify the financial statements filed or to be
filed with the Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the Act.
(r) The Company is not a "holding company," as such term is
defined in the Public Utility Holding Company Act of 1935.
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(s) The Company has complied with all of the requirements and
filed the required forms as specified in Florida Statutes Section
517.075.
4. Agreements of the Company. The Company agrees that:
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(a) Prior to the effective date of the Registration Statement and
at any time when a prospectus relating to the IQ Notes is required to
be delivered under the Act or the Rules and Regulations, the Company
will not file or make any amendment or post-effective amendment to the
Registration Statement or any amendment or supplement to the Prospectus
to which the Underwriter shall reasonably object in writing within two
business days after being furnished copies thereof and following
reasonable telephonic notice of such amendment or supplement from the
Company to the Underwriter.
(b) The Company will use its commercially reasonable best efforts
to cause the Registration Statement to become effective and will advise
the Underwriter immediately and confirm that advice in writing (i) of
the effectiveness of the Registration Statement, or any post-effective
amendment thereto, (ii) of any request of the Commission to amend or
supplement the Registration Statement or Prospectus, or to provide
additional information, and (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of the qualification of the IQ Notes for
sale in any state or other jurisdiction, or of the initiation or threat
of any proceeding for any such purpose. The Company will use its best
efforts to prevent the issuance of any stop order or suspension order
and to obtain the withdrawal of any such stop order or suspension
order.
(c) The Company will promptly deliver to the Underwriter without
charge, (i) three copies of the Registration Statement, as originally
filed, and of each amendment thereto, and of each post-effective
amendment thereto filed at any time when a prospectus relating to the
IQ Notes is required to be delivered under the Act, at least two of
which have been signed by the proper officers and at least a majority
of directors of the Company, either directly or by their
attorney(s)-in-fact and include a signed copy of each consent and
certificate of experts named in the Registration Statement, together
with all exhibits filed therewith or incorporated by reference therein
and (ii) such number of conformed copies of the Registration Statement,
as originally filed, and of each amendment thereto, and of each
post-effective amendment thereto filed at any time when a prospectus
relating to the IQ Notes is required to be delivered under the Act or
the Rules and Regulations (in each such case excluding exhibits), as
the Underwriter may reasonably require. The Company will promptly
deliver, without charge, to the Underwriter and such others whose names
and addresses are designated by the Underwriter: (A) from time to time
until the effective date of the Registration Statement, as many printed
copies of any preliminary prospectus filed with the Commission prior to
the effective date of the Registration Statement as the Underwriter may
reasonably request; and (B) as soon as possible after the Registration
Statement becomes effective, and from time to time thereafter, as many
printed copies of the Prospectus and of any amended or supplemented
Prospectus as the Underwriter may reasonably request.
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(d) The Company will comply to the best of its ability with the
Act, the Trust Indenture Act and the Exchange Act and the Rules and
Regulations so as to permit the continuance of sales of and dealings in
the IQ Notes under the Act, the Trust Indenture Act and the Exchange
Act, and will keep current in the filing of all reports and forms
required to be filed with any regulatory authority having jurisdiction
over the Company.
(e) If at any time when a prospectus relating to the IQ Notes is
required to be delivered under the Act or the Rules and Regulations,
any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact, or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which made, not misleading, or if
it is necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Company will
promptly notify the Underwriter and promptly prepare and file with the
Commission an amendment or supplement to the Registration Statement or
an appropriate filing pursuant to Section 13 or 14 of the Exchange Act
which will correct such statement or omission or an amendment which
will effect such compliance, and deliver in connection therewith, such
Prospectus or Prospectuses to the Underwriter in such quantity as may
be necessary to permit compliance with the requirements of the Act and
the Rules and Regulations.
(f) The Company will cooperate with the Underwriter and counsel
for the Underwriter in taking such action as may be necessary to
qualify the IQ Notes for offering and sale under the securities laws of
any state or jurisdiction of the United States as the Underwriter may
reasonably request and will use its best efforts to continue such
qualification in effect so long as required for the distribution of the
IQ Notes.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 120 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Section 11(a) of the Act, including,
at the option of the Company, Rule 158 under the Act, which need not be
certified by independent public accountants unless required by the Act
or the Rules and Regulations) covering a period of at least 12 months
commencing after the effective date of the Registration Statement.
(h) The Company will not assert, plead (as a defense or otherwise)
or in any manner whatsoever claim (and will actively resist any attempt
to compel it to assert, plead or claim) in any action, suit or
proceeding that the interest rate on the IQ Notes violates present or
future usury or other laws relating to the interest payable on any
indebtedness and will not otherwise avail itself (and will actively
resist any attempt to compel it to avail itself) of the benefits or
advantages of any such laws.
(i) For a period of five years after the issuance of the IQ Notes,
the Company will furnish as soon as practicable to the Underwriter
copies of any reports filed by the Company with the Commission pursuant
to Section 13 of the Exchange Act, copies of the Company's definitive
proxy statements and annual reports and copies of all reports and
communications which shall be sent to the holders of Common Stock.
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(j) The Company will apply the net proceeds from the offering of
the IQ Notes in the manner set forth under the caption "Use of
Proceeds" in the Prospectus.
(k) The Company will not, during the period of 30 days from the
date on which the IQ Notes are purchased by the Underwriter, sell,
offer to sell, grant any option for the sale of, or otherwise dispose
of any IQ Notes, any security convertible into or exchangeable into or
exercisable for the IQ Notes or any debt securities substantially
similar to the IQ Notes, without the prior written consent of the
Underwriter.
5. Expenses. The Company and the Underwriter agree as follows:
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(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will pay all costs and expenses incident to
the performance of its obligations hereunder, including without
limitation, all costs and expenses in connection with (i) the
preparation and filing of the Registration Statement, Prospectus and
Indenture and any supplements or amendments thereto; (ii) the
preparation, issuance and delivery of the IQ Notes contemplated by this
Agreement; (iii) the printing and mailing in reasonable quantities of
the Registration Statement, the Indenture, amendments thereto, each
preliminary prospectus, the Prospectus and any amendments or
supplements thereto, this Agreement and related documents delivered to
the Underwriter and Selected Dealers; (iv) any taxes, including
transfer taxes, on the sale of the IQ Notes to the Underwriter; (v) the
filing fees and expenses (including legal fees and reasonable
disbursements) incurred in connection with the qualification of the IQ
Notes under the Blue Sky or securities laws of the various states,
filings with the National Association of Securities Dealers, Inc. and
the preparation of Preliminary and Supplemental Blue Sky Memoranda for
the Offering; (vi) the fees and expenses of the accountants and the
counsel for the Company; (vii) the fees of the Trustee and any agent of
the Trustee (including legal fees and disbursements, if any, of counsel
to the Trustee); (viii) the fees and expenses of the Underwriter's
counsel that exceed $22,500, provided that the total payments by the
Company for such expenses shall not exceed $27,500; and (ix) all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section.
(b) The Underwriter will pay (i) the fees and disbursements of the
Underwriter's counsel, except as set forth in (a) above and Section
9(b) hereof, and (ii) their own out-of-pocket expenditures.
6. Conditions of the Underwriter's Obligations. The obligations of
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the Underwriter to purchase and pay for the IQ Notes shall be subject in its
discretion to the accuracy of and compliance with the representations and
the warranties of the Company herein contained as of the date hereof and the
Closing Date, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The Registration Statement shall have become effective and the
Indenture qualified under the Trust Indenture Act not later than 2:00
P.M., St. Louis time on such date as shall be consented to in writing
by the Underwriter and the Company, and no stop order suspending the
effectiveness of such Registration Statement shall have been issued
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under the Act or proceedings therefor initiated or threatened by the
Commission prior to the Closing Date; and all requests for additional
information on the part of the Commission shall have been complied with
to the reasonable satisfaction of the Underwriter.
(b) The Underwriter shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment thereof or
supplement thereto, contains an untrue statement of fact which in its
judgment, is material, or omits to state a fact which, in its judgment,
is material, and is required to be stated therein or necessary to make
the statements therein not misleading.
(c) On the Closing Date, the Underwriter shall have received an
opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, P.A., counsel
for the Company, substantially in the form of Exhibit A attached
hereto.
(d) On the Closing Date, the Underwriter shall have received from
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP an opinion or opinions with respect to the
sufficiency of the Company proceedings and other legal matters relating
to this Agreement, the Registration Statement, the Prospectus and such
related matters as the Underwriter may reasonably require, and there
shall have been furnished to such counsel such documents as they may
request to enable them to pass upon such matters. In giving such
opinion or opinions, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may rely as to matters of
fact upon statements and certifications of officers of the Company and
of other appropriate persons and may rely as to matters of law, other
than the law of the United States and the State of Missouri, upon an
opinion or opinions of local counsel, who may be counsel for the
Company, provided that any such opinion or opinions are delivered to
the Underwriter and that said counsel shall state that they have no
reason to believe that such opinions are not correct.
(e) On the Closing Date, the Underwriter shall have received a
certificate, dated the Closing Date, signed by the chief executive
officer or president and principal financial or accounting officer of
the Company, in form and substance satisfactory to the Underwriter, to
the effect that (i) the representations and warranties of the Company
in this Agreement are true and correct as if made on the Closing Date
and the Company has complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied at or
prior to the Closing Date; (ii) since the respective dates as of which
information is given in the Prospectus, there has not been any material
adverse change in the business, operations, assets, financial condition
or prospects, of the Company, or in the business of the Company; (iii)
since such dates there has not been any material transaction entered
into by the Company other than transactions in the ordinary course of
business; and (iv) no stop order affecting the Registration Statement
is in effect or, to the best of such officers' knowledge, threatened,
and covering such other matters as the Underwriter may reasonably
request.
(f) On the date of this Agreement, the Underwriter and the Company
shall have received a letter from Deloitte & Touche LLP dated such date
and addressed to the Underwriter and the Company in form and substance
satisfactory to the Underwriter,
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with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and the
Prospectus.
(g) At the Closing Date, the Underwriter and the Company shall
have received from Deloitte & Touche LLP a letter, dated the Closing
Date and addressed to the Underwriter and the Company in form and
substance satisfactory to the Underwriter, confirming as of the Closing
Date their letter dated the date hereof and delivered to the Underwriter
pursuant to Section 6(f) hereof.
(h) At the Closing Date, the Underwriter shall have received from
counsel for Ambac Assurance Corporation ("Ambac") an opinion in form and
substance satisfactory to the Underwriter with respect to the description
of Ambac in the Prospectus and with respect to the financial guaranty
insurance policy issued by Ambac.
(i) At the Closing Date, the Underwriter shall have received a
certificate, dated the Closing Date, signed by an officer of Ambac in
form and substance satisfactory to the Underwriter.
(j) On the Closing Date, the Underwriter shall have received in form
satisfactory to it confirmation that the Notes have been rated "AAA" by
Standard & Poor's Ratings Group and "Aaa" by ▇▇▇▇▇'▇ Investors Services,
Inc.
(k) Counsel for the Underwriter, shall have been furnished with such
opinions and copies of such documents as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the IQ
Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy or completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the IQ Notes as herein contemplated and all
opinions and certificates mentioned above or elsewhere in this Agreement
shall be satisfactory in form and substance in all material respects to
the Underwriter and said counsel.
(l) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any material
change in the capital stock, short-term debt or long-term debt of the
Company or any material adverse change, or any development specifically
related to the business of the Company involving a prospective material
adverse change, in the business, operations, assets, financial
condition or prospects of the Company considered as a whole which, in
the judgment of the Underwriter, makes it impractical to offer or
deliver the IQ Notes on the terms and in the manner contemplated in the
Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled, this Agreement may be terminated by the Underwriter upon
notice to the Company or such conditions may be waived, modified or the time
for fulfillment thereof may be extended by the Underwriter upon notice to
the Company.
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7. Conditions of the Company's Obligations. The obligations of the
---------------------------------------
Company to deliver the IQ Notes shall be subject to the following
conditions:
(a) The Registration Statement shall have been declared effective
by the Commission.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect at the Closing Date, and no proceedings
therefor shall be pending or threatened by the Commission at the
Closing Date.
In the event the conditions specified in this Section 7 shall not be
fulfilled, this Agreement may be terminated by the Company by delivery of
notice to the Underwriter. Any such notice shall be without liability of the
Company to the Underwriter, except as otherwise provided in Section 9(b)
thereof, and without liability of the Underwriter to the Company.
8. Indemnification.
---------------
(a) The Company will indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the
meaning of the Act against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter or such controlling person
may be subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto or any related
preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and will reimburse the Underwriter and each controlling
person for any legal or other expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or omission made in any of such
documents in reliance upon and in conformity with information furnished
to the Company by the Underwriter contained in the section of the
Prospectus entitled "Underwriting" and specifically for use therein;
provided, however, that the indemnification contained in this paragraph
with respect to any preliminary prospectus shall not inure to the
benefit of the Underwriter (or of any person controlling the
Underwriter) on account of any such losses, claims, damages,
liabilities or expenses arising from the sale of the IQ Notes by the
Underwriter to any person if a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been
furnished to the Underwriter prior to the written confirmation of the
sale involved) shall not have been given or sent to such person by or
on behalf of the Underwriter with or prior to the written confirmation
of the sale involved, and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in
the Prospectus (as amended or supplemented if amended or supplemented
as aforesaid). Indemnification pursuant to this Section 9 will be in
addition to any liability which the Company may otherwise have.
12
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or action in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the
Underwriter contained in the section of the Prospectus entitled
"Underwriting" and specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action.
Indemnification pursuant to this Section 8 will be in addition to any
liability which the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 9, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
8. In case any claim or 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 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 8 for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable cost
of investigation. The indemnified party shall have the right to employ
its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the employment of counsel by such indemnified party has been authorized
by the indemnifying party, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest between
the indemnifying party and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party. An indemnifying party shall not be liable for
any settlement of any action or claim effected without its consent,
which consent shall not be unreasonably withheld, delayed or
conditioned.
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(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriter on the other from the
offering of the IQ Notes to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or the Underwriter on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriter was treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in 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 such action or claim.
Notwithstanding the provisions of this subsection (d), the Underwriter
shall not be required to contribute any amount in excess of the amount by
which the total price at which the Note underwritten by it and
distributed to the public was offered to the public exceeds the amount of
any damages which the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 9 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriter within the meaning of the Act; and
the obligations of the Underwriter under this Section 9 shall be in
addition to any liability which the Underwriter may otherwise have and
shall extend,
14
upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. Termination.
-----------
(a) This Agreement may be terminated at any time prior to the
Closing Date by the Underwriter by written notice to the Company, if in
the judgment of the Underwriter it is impracticable to offer for sale
or to enforce contracts made by the Underwriter for the resale of the
IQ Notes by reason of (i) the Company sustaining a loss, whether or not
insured, by reason of fire, flood, accident or other calamity, which,
in the opinion of the Underwriter, substantially affects the value of
the properties of the Company or which materially interferes with the
operation of the business of the Company, (ii) all trading in
securities on the American Stock Exchange having been suspended or
limited or minimum prices having been established on such exchange,
(iii) a banking moratorium having been declared by the United States or
by New York state authorities or (iv) an outbreak of major hostilities
or other national or international calamity having occurred.
(b) If the obligations of the parties to this Agreement shall be
terminated pursuant to Section 6 or 7 hereof or this Section 9, or if
the purchase provided for herein is not consummated because of any
refusal, inability or failure on the part of the Company to comply with
any of the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform all the
obligations under this Agreement, the Company shall not be liable to
the Underwriter for damages on account of loss of anticipated profits
arising out of the transactions covered by this Agreement, but the
Company shall remain liable to the extent provided in Sections 5(a) and
8(a) hereof, and, except where termination occurs pursuant to clause
(ii), (iii) or (iv) of Section 9(a) hereof, the Company shall pay the
out-of-pocket expenses incurred by the Underwriter in contemplation of
the performance by it of its obligations hereunder, including the fees
and disbursements of its counsel and its traveling expenses and
postage, telegraph and telephone charges.
10. Survival of Indemnities, Representations and Warranties. The
-------------------------------------------------------
respective indemnities of the Company and the Underwriter and the respective
representations and warranties of the Company and the Underwriter set forth
in this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or the Underwriter or any
of their respective officers, directors, partners or any controlling person,
and will survive delivery of and payment for the IQ Notes or termination of
this Agreement pursuant to Section 9 hereof, as the case may be.
11. Parties in Interest. This Agreement shall inure to the benefit of
-------------------
the Company, the Underwriter, the officers, directors and partners of such
parties, each controlling person referred to in Section 8 hereof, and their
respective successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or
any provision herein contained.
15
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any IQ Notes from the Underwriter.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement
previously entered into.
12. Notices. All communication, terminations and notices hereunder
-------
shall be in writing and sent to the Underwriter or the Company, as
applicable. Notices shall be mailed, delivered or telegraphed and confirmed
to the Underwriter at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇) (or such other place as the Underwriter may specify in
writing); if sent to the Company shall be mailed, delivered or telegraphed
and confirmed to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attn: ▇▇▇▇ ▇▇▇▇▇) (or such other place as the Company may
specify in writing).
13. Counterparts. This Agreement may be executed in any number of
------------
counterparts which, taken together, shall constitute one and the same
instrument.
14. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Missouri.
16
Please sign the enclosed duplicate of this letter whereupon this letter
will become a binding agreement between the parties in accordance with its
terms.
Very truly yours,
FLORIDA PUBLIC UTILITIES
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
The foregoing Agreement is
hereby confirmed and accepted,
as of the date first above
written, on behalf of the
Underwriter
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By:
------------------------
Name:
----------------------
Title: Principal
17
