1
EXECUTION COPY
3,500,000 SHARES
TECO ENERGY, INC.
COMMON STOCK, PAR VALUE $1.00 PER SHARE
UNDERWRITING AGREEMENT
----------------------
October 9, 2001
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. INTRODUCTORY. TECO Energy, Inc., a Florida corporation (the "COMPANY"),
proposes to issue and sell to Xxxxxxx, Sachs & Co. (the "UNDERWRITER") 3,500,000
shares (the "OFFERED SECURITIES") of its common stock, par value $1.00 per share
(the "COMMON STOCK"), registered under the registration statement referred to in
Section 2(a).
The Company hereby agrees with the Underwriter as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) A registration statement (No. 333-61758), including a prospectus
relating to the Offered Securities has been filed with the Securities and
Exchange Commission (the "COMMISSION") and has been declared effective. Such
registration statement, as amended at the date of this Agreement and including
all material incorporated by reference therein, is hereinafter referred to as
the "REGISTRATION STATEMENT", and the prospectus relating to the Offered
Securities included in the Registration Statement, as supplemented to reflect
the terms of the offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Securities Act of 1933, as amended (the "ACT"), including all material
incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act. No stop order suspending the effectiveness
of the Registration Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission. Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus, any related preliminary prospectus or preliminary
prospectus supplement shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") after the date of this Agreement, or the issue date of the Prospectus, any
related preliminary prospectus or preliminary prospectus supplement, as the case
may be, deemed to be incorporated therein by reference.
(b) On the effective date of the Registration Statement relating to the
Offered Securities, such Registration Statement conformed in all material
respects to the requirements of
2
the Act and the rules and regulations of the Commission (the "RULES AND
REGULATIONS") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and as of the date of this
Agreement, the Registration Statement and the Prospectus conform in all material
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes as of the date of this Agreement or will
include as of the date of any amendment or supplement thereto or the Closing
Date (as defined below) any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
that part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) of the Trustee under the Trust Indenture Act and
statements in or omissions from any of such documents based upon written
information furnished to the Company by or on behalf of the Underwriter
specifically for use therein.
(c) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Florida, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification and in which the failure to so qualify could have a Material
Adverse Effect (as defined below).
(d) Each "significant subsidiary" (as such term is defined in Rule 1-02 of
Regulation S-X) of the Company (each, a "SUBSIDIARY") (each Subsidiary is listed
on Schedule A hereto) has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; each other subsidiary of the Company
has been duly incorporated or formed, as the case may be, and is an existing
corporation or other entity, as the case may be, in good standing under the laws
of the jurisdiction of its organization, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus, except where the failure of the foregoing to be correct would not
have a Material Adverse Effect; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, and in which the failure to so qualify
could have a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable and is owned by the Company, directly
or through subsidiaries, free from liens, encumbrances and defects, except for
such liens, encumbrances and defects as would not have a Material Adverse
Effect.
(e) The Offered Securities and all outstanding shares of capital stock of
the Company have been duly authorized; all outstanding shares of capital stock
of the Company are, and, when the Offered Securities have been delivered and
paid for in accordance with this Agreement on the Closing Date, such Offered
Securities will have been, validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to its Common
Stock.
2
3
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any individual,
corporation, partnership, joint venture, trust, limited liability company,
unincorporated organization or other entity (each, a "PERSON") that would give
rise to a valid claim against the Company or the Underwriter for a brokerage
commission, finder's fee or other like payment.
(g) There are no contracts, agreements or understandings between the
Company and any Person granting such Person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such Person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(h) The Offered Securities have been approved for listing on The New York
Stock Exchange (the "STOCK EXCHANGE"), subject to notice of issuance.
(i) No consent, approval, authorization, or order of, or filing,
registration or qualification with, any governmental agency or body or any court
is required for the consummation of the transactions contemplated by this
Agreement (including in connection with the issuance and sale of the Offered
Securities by the Company), except such as have been obtained and made under the
Act and such as may be required under state securities laws.
(j) The execution, delivery and performance of this Agreement and the
issuance and sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
(A) any statute, rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, (B) any agreement or
instrument to which the Company or any subsidiary of the Company is a party or
by which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, except for such
breaches, defaults or violations that would not result in a Material Adverse
Effect or (C) the charter or by-laws of the Company or any such subsidiary; and
the Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and delivered by the
Company.
(l) Except as disclosed in the Prospectus, the Company and its subsidiaries
have good and marketable title to all real properties and all other properties
and assets owned by them, in each case free from all liens, encumbrances and
defects, except for such liens, encumbrances and defects that would not have a
Material Adverse Effect; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold all leased real or personal property under valid and
enforceable leases with no exceptions, except for such exceptions that would not
have a Material Adverse Effect.
3
4
(m) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(n) No labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent that could reasonably be
expected to have a Material Adverse Effect.
(o) The Company and its subsidiaries own or possess adequate licenses or
other rights to use or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now operated
by them, or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) Except as disclosed in the Prospectus, neither the Company nor any of
its subsidiaries is in violation of any statute, rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or
operates any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and the Company
is not aware of any pending investigation which might lead to such a claim.
(q) Except as disclosed in the Prospectus, there are no pending actions,
suits or proceedings against or affecting the Company, any of its subsidiaries
or any of their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
(r) The financial statements included in the Registration Statement and
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and, except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis (except as stated therein and except the notes to the interim
financial statements);
4
5
and any schedules included in the Registration Statement present fairly the
information required to be stated therein. PricewaterhouseCoopers LLP, who have
certified financial statements of the Company, are independent public
accountants with respect to the Company and its subsidiaries as required by the
Exchange Act and the Rules and Regulations.
(s) Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus there has been no
material adverse change in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole, and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(t) The Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(u) The Company has filed an appropriate exemption statement pursuant to
the provisions of the Public Utility Holding Company Act of 1935, as amended
(the "PUBLIC UTILITY HOLDING COMPANY ACT") and is exempt from all provisions of
such Act except Section 9(a)(2) thereof relating to the acquisition of
securities of other public utility companies. The Company is not subject to the
jurisdiction of the Florida Public Service Commission with respect to the issue
and sale of the Offered Securities.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees, to purchase from the Company, at a
purchase price of $26.72 per share, the Offered Securities.
The Company will deliver the Offered Securities to the Underwriter, against
payment of the purchase price therefor in Federal (same day) funds by wire
transfer to a bank account designated by the Company and open for the receipt of
funds (and verification of the receipt thereof) on October 12, 2001 at 9:00
A.M., New York time at the offices of Xxxxxx & Dodge LLP, Boston, Massachusetts,
or at such other place and time not later than seven full business days
thereafter as the Underwriter and the Company determine, such time being herein
referred to as the "CLOSING DATE". For purposes of Rule 15c6-1 under the
Exchange Act, the Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Offered Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as the Underwriter
requests and will be made available for checking and packaging at the office of
The Depository Trust Company or its designated custodian at least 24 hours prior
to the First Closing Date.
It is understood that the Underwriter proposes to offer the Offered
Securities for sale to the public as set forth in the Prospectus.
5
6
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
Underwriter that it will furnish to counsel for the Underwriter, one conformed
copy of the registration statement relating to the Offered Securities, including
all exhibits, in the form it became effective and of all amendments thereto and
that, in connection with the offering of the Offered Securities:
(a) The Company will file the Prospectus with the Commission in a form
approved by the Underwriter pursuant to and in accordance with Rule 424(b)(2) or
Rule 424(b)(5) not later than the second business day following the execution
and delivery of this Agreement.
(b) The Company will advise the Underwriter promptly in writing of any
proposal to amend or supplement the Registration Statement, as it relates to the
Offered Securities, or the Prospectus and will not effect any such amendment or
supplementation to which the Underwriter has reasonably objected in writing; and
the Company will also advise the Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by the
Underwriter or any dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will notify the
Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
Neither the Underwriter's consent to, nor the Underwriter' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months after the date of
this Agreement, the Company will make generally available to its securityholders
an earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the registration statement relating to
the Offered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Underwriter copies of the Registration
Statement, including all exhibits, the Prospectus, any related preliminary
prospectus, any related preliminary prospectus supplement, and all amendments
and supplements to such documents, in each case as soon as available and in such
quantities as the Underwriter reasonably requests. The Company will pay the
expenses of printing and distributing to the Underwriter all such documents.
6
7
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify the Offered Securities for sale under the laws of such
jurisdictions as the Underwriter designates and will continue such
qualifications in effect so long as required for the distribution; provided,
however, that it shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction as to which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(g) During the period of five years after the date of this Agreement, the
Company will furnish to the Underwriter, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Underwriter (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from time
to time, such other information concerning the Company as the Underwriter may
reasonably request, subject to appropriate confidentiality undertakings
reasonably satisfactory to the Company and the right of the Company to withhold
information if required by applicable law.
(h) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, for any filing fees or other expenses
(including fees and disbursements of counsel to the Underwriter, which fees and
disbursements shall not exceed $5,000) incurred in connection with qualification
of the Offered Securities for sale under the laws of such jurisdictions as the
Underwriter may designate and the printing of memoranda relating thereto, for
any applicable filing fee incident to the review by the National Association of
Securities Dealers, Inc. of the terms of the offering of the Offered Securities
and the fees and disbursements of counsel to the Underwriter in connection
therewith (which counsel fees shall be included in the cap set forth above), for
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of Offered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any preliminary
prospectus supplements or any other amendments or supplements to the Prospectus
to the Underwriter.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. The obligations of
the Underwriter to purchase and pay for the Offered Securities will be subject
to the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date hereof, the Underwriter shall have received a
letter, dated the date of delivery thereof, of PricewaterhouseCoopers LLP
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) in their opinion the financial statements and schedules and any summary
of earnings examined by them and included in the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations;
7
8
(ii) they have performed the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial information as
described in Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements, if any, and any summary of earnings
included in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be made to such
unaudited financial statements and summary of earnings for them to be in
conformity with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in the Prospectus,
such information does not agree with the corresponding amounts set forth in the
unaudited consolidated financial statements or were not determined on a basis
substantially consistent with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three business days
prior to the date of such letter, there was any change in the capital stock or
any increase in short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated net current
assets or net assets or stockholders' equity as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest income statement
included in the Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as compared with
the corresponding period of the previous year, in consolidated net sales, net
operating income in the total or per share amounts of consolidated income before
extraordinary items or net income;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained or
incorporated by reference in the Prospectus (in each case to the extent that
such dollar amounts, percentages and other financial information are derived
from the general accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found
8
9
such dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such letter.
All financial statements, schedules and other financial information
included in material incorporated by reference into the Prospectus shall be
deemed included in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or the Underwriter, shall be
contemplated by the Commission.
(c) Subsequent to the execution of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole which, in the
judgment of the Underwriter, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating of any
debt securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency; or (vi) any change in financial,
political or economic conditions in the United States or elsewhere, if, in the
judgment of the Underwriter, the effect of any event or change referred to in
clauses (v) or (vi) is so adverse and material as to make it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated the Closing Date,
of Xxxxxx & Dodge LLP, counsel for the Company, satisfactory in form and
substance to the Underwriter and to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Offered Securities have been duly authorized and validly issued,
are fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and
9
10
the stockholders of the Company have no preemptive rights with respect to the
Offered Securities;
(iii) There are no contracts, agreements or understandings known to such
counsel between the Company and any Person granting such Person the right to
require the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such Person or to
require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Act;
(iv) The Company is not and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(v) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Offered Securities by the Company, except such as have been obtained
and made under the Act, or as may be required under foreign or state securities
laws as to which such counsel expresses no opinion;
(vi) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement (including the
issuance and sale of the Offered Securities) will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule or regulation, or any order known to such counsel, of any
governmental agency or body or any court having jurisdiction over the Company or
any Subsidiary or any of their properties, or any agreement or instrument that
is listed as an exhibit to the Company's Form 10-K for the year ended December
31, 2000 or the Company's Forms 10-Q and 8-K filed thereafter, or the charter or
by-laws of the Company or any Subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as contemplated by
this Agreement;
(vii) The statements in the Prospectus under the captions "Description of
Common Stock," "Description of Preferred Stock" and "Anti-Takeover Effects of
Our Articles of Incorporation and Bylaws, Florida Law and Our Rights Plan",
insofar as such statements constitute a summary of documents referred to therein
or matters of law, fairly summarize in all material respects the information
called for with respect to such documents and matters;
(viii) This Agreement has been duly authorized, executed and delivered by
the Company;
(ix) The Offered Securities conform as to legal matters in all material
respects to the statements concerning them in the Prospectus;
(x) The Company is exempt from the provisions of the Public Utility Holding
Company Act, except Section 9(a)(2) thereof relating to the acquisition of
securities of other public utility companies;
10
11
(xi) The Registration Statement has become effective under the Act, the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion within the time period required by Rule 424(b),
and, to the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Act;
(xii) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and any amendment or supplement
thereto, excluding the documents incorporated by reference therein, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations; it
being understood that such counsel need express no opinion as to the financial
statements, including the notes thereto, or other financial data contained
therein; and
(xiii) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; it being understood that such counsel
need express no opinion as to the financial statements, including the notes
thereto, or other financial data contained therein.
In giving such opinion, such counsel may rely as to all matters governed by
the laws of jurisdictions other than the law of the State of Florida and the
federal law of the United States, upon the opinion of counsel satisfactory to
the Underwriter. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and certificates of public officials. In
rendering its opinion, such counsel may rely as to matters of Florida law upon
the opinion of Xxxxxx X. XxXxxxxx, Esq. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel which causes it to believe that the
Registration Statement, as of its effective date, or any amendment thereto, as
of its effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of its
issue date or as of the Closing Date, or any amendment or supplement thereto, as
of its issue date or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and such counsel does not know of any legal or
governmental proceedings required to be described in the Registration Statement
or the Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement which
are not described or filed as required; it being understood that such counsel
need express no comment as to the financial statements, including the notes
thereto, or other financial data contained in the Registration Statement or the
Prospectus. With respect to such statement, such counsel may state that its
belief is based upon procedures set forth therein satisfactory to the
Underwriter but is without independent check and verification.
11
12
(e) The Underwriter shall have received an opinion, dated the Closing Date,
of Xxxxxx X. XxXxxxxx, Esq., general counsel of the Company, satisfactory in
form and substance to the Underwriter and to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) Each Subsidiary has been duly incorporated and is validly existing as
a corporation under the laws of the jurisdiction of its incorporation, and has
corporate power and authority to own its properties and to conduct its business
as described in the Prospectus; except as otherwise disclosed in the
Registration Statement and the Prospectus, all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned of record and, to the best
of her knowledge, beneficially, by the Company, directly or indirectly through
subsidiaries of the Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity of record, and to the best of her
knowledge, otherwise; and none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or, to the best of her
knowledge, similar rights of any securityholder of such Subsidiary;
(iii) This Agreement has been duly authorized, executed and delivered by
the Company;
(iv) The Offered Securities have been duly authorized and validly issued,
are fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(v) There are no contracts, agreements or understandings known to such
counsel between the Company and any Person granting such Person the right to
require the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such Person or to
require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Act;
(vi) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court (including without limitation the
Florida Public Service Commission) is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Offered Securities by the Company, except such as have been obtained
and made under the Act, or such as may be required under foreign or state
securities laws as to which such counsel expresses no opinion; and
(vii) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement (including the
issuance and sale of the Offered Securities) will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule or regulation, or any order known to such counsel, of any
governmental agency or body or any court having jurisdiction over the Company or
any Subsidiary
12
13
or any of their properties, or any agreement or instrument that is listed as an
exhibit to the Company's Form 10-K for the year ended December 31, 2000 or the
Company's Forms 10-Q and 8-K filed thereafter, or the charter or by-laws of the
Company or any Subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
In giving such opinion, such counsel may 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 Underwriter.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that nothing has come to the attention of such counsel
which causes her to believe that the Registration Statement, as of its effective
date, or any amendment thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its issue date or as of the Closing Date, or any
amendment or supplement thereto, as of its issue date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and such counsel
does not know of any legal or governmental proceedings required to be described
in the Registration Statement or the Prospectus which are not described as
required or of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described or filed as
required; it being understood that such counsel need express no comment as to
the financial statements, including the notes thereto, or other financial data
contained in the Registration Statement or the Prospectus. With respect to such
statement, such counsel may state that her belief is based upon procedures set
forth therein satisfactory to the Underwriter but is without independent check
and verification.
(f) The Underwriter shall have received from Ropes & Xxxx, counsel for the
Underwriter, such opinion or opinions, dated the Closing Date, with respect to
the validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriter may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) The Underwriter shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date,
that no stop order suspending the effectiveness of the Registration Statement or
of any part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that, subsequent to
the date of the most recent financial statements in the Prospectus, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations
13
14
of the Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) The Underwriter shall have received a letter, dated the Closing Date,
of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to the Closing Date for the purposes of
this subsection.
The Company will furnish the Underwriter with such conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests. The Underwriter may in its sole discretion waive compliance with any
conditions to the obligations of the Underwriter under this Agreement.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless the Underwriter, its
partners, directors and officers and each Person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Underwriter for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter,
specifically for use therein, it being understood and agreed that the only such
information furnished by the Underwriter consists of the information described
as such in subsection (b) below; and, PROVIDED, FURTHER, that, this indemnity
with respect to the Prospectus or any related preliminary prospectus or
preliminary prospectus supplement shall not inure to the benefit of the
Underwriter (or any person controlling the Underwriter) from whom the Person
asserting any such loss, claim, damage or liability purchased the Offered
Securities that are the subject thereof if the Underwriter did not send or
deliver to such Person a copy of the Prospectus (or the Prospectus, as amended
or supplemented) excluding documents incorporated therein by reference at or
prior to the confirmation of the sale of the Offered Securities to such Person
(but only to the extent that such loss, claim, damage or liability is finally
determined by a court of competent jurisdiction to arise out of the untrue
statement or omission of a material fact that was corrected in the Prospectus
(or the Prospectus, as amended or supplemented) that was not delivered by the
Underwriter at or prior to confirmation of sale) in any case where such delivery
is required by the Act, the Company has provided to the Underwriter sufficient
quantities of the Prospectus (or the Prospectus, as amended or supplemented) in
sufficient time to enable the
14
15
Underwriter to deliver to such Person a copy of the Prospectus (or the
Prospectus, as amended or supplemented) in a timely manner, and the untrue
statement or omission of a material fact contained in the Prospectus or any
related preliminary prospectus or preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus, as amended or supplemented).
(b) The Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors, each officer who signed the Registration
Statement and each Person, if any, who controls the Company within the meaning
of Section 15 of the Act, against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter, specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information contained in the third,
fourth and fifth paragraphs under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above except to the extent it is materially
prejudiced thereby. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
15
16
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the 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 or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which 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 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each partner, director or officer of the
Underwriter and each Person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act; and the obligations of the Underwriter under
this Section shall be in addition to any liability which the Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who signed the
Registration Statement and to each Person, if any, who controls the Company
within the meaning of the Act.
7. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Underwriter is not consummated, the
16
17
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriter pursuant to Section 6 shall remain in effect. If the purchase of the
Offered Securities by the Underwriter is not consummated for any reason other
than solely because of the occurrence of any event specified in clause (iii),
(iv), (v) or (vi) of Section 5(c), the Company will reimburse the Underwriter
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
8. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered or telegraphed and confirmed to
Xxxxxxx, Sachs & Co., Xxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000; if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention:
Treasurer, with a copy to the Corporate Secretary.
9. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the Company and the Underwriter and their respective successors and the
partners, officers and directors and controlling persons referred to in Section
6, and no other Person will have any right or obligation hereunder.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
17
18
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the Underwriter in
accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
Xx. Vice President - Finance and Chief
Financial Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
XXXXXXX, XXXXX & CO.
By:/s/ Xxxxxxx, Sachs & Co.
------------------------
(Xxxxxxx, Xxxxx & Co.)
18
19
SCHEDULE A
1. Tampa Electric Company
2. TECO Transport Corporation
3. TECO Diversified, Inc.
4. TECO Power Services Corporation
5. TECO Coal Corporation
19
