Cleco Corporation 6,000,000 Shares Common Stock (par value $1.00 per share) Underwriting Agreement
EXHIBIT
1.1
Execution
Copy
Cleco
Corporation
6,000,000
Shares
Common
Stock
(par
value $1.00 per share)
August
14,
2006
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.,
As
representative of the several Underwriters
named
in
Schedule I hereto,
▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Dear
Ladies and Gentlemen:
Cleco
Corporation, a Louisiana corporation (the “Company”),
confirms its agreement with the Underwriters named in Schedule I hereto (the
“Underwriters”)
as
follows:
1. Offering.
The
Company proposes to issue and sell to the Underwriters 6,000,000 shares
(the “Firm
Securities”)
of its
common stock, par value $1.00 per share (the “Securities”),
and
also proposes to issue and sell to the Underwriters,
at the option of the Underwriters, an aggregate of not more than
900,000 additional
shares (the “Optional
Securities”),
of
its Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the “Offered
Securities.”
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (No. 333-109506) and Pre-Effective Amendments
Nos. 1 thru 8 thereto, including a form of prospectus, for the registration
of
the offer and sale of certain securities, including the Offered Securities
under
the Securities Act of 1933, as amended (the “1933
Act”),
from
time to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the “1933
Act Regulations”).
Such
registration statement has been declared effective by the Commission. Promptly
after execution and delivery of this Agreement, the Company will prepare and
file a prospectus supplement relating to the Offered Securities, the terms
of
the offering thereof and the other matters set forth therein, pursuant to Rule
424(b) under the 1933 Act Regulations. The final prospectus and the final
prospectus supplement relating to the Offered Securities, in the forms filed
with the Commission pursuant to Rule 424(b) under the 1933 Act Regulations
for
use in connection with the offering of the Offered Securities, are collectively
referred to herein as the “Prospectus”,
and
NY1
5888735v.4
such
registration statement in the form in which it became effective, is hereinafter
called the “Registration
Statement.”
A
“preliminary
prospectus”
shall
be deemed to refer to any prospectus that omitted information to be included
upon pricing in a form of prospectus filed with the Commission pursuant to
Rule
424(b) under the 1933 Act Regulations and was used after such effectiveness
and
prior to the initial delivery of the Prospectus to the Underwriters by the
Company. The preliminary prospectus relating to the Offered Securities that
was
included in the Registration Statement immediately prior to the Applicable
Time
(as defined in Section 3(b) hereof) is hereinafter referred to as the
“Pricing
Prospectus.”
For
purposes of this Agreement, all references to the “Registration Statement,” any
“preliminary prospectus” and the “Prospectus” shall also be deemed to include
all documents incorporated therein by reference pursuant to Item 12 of Form
S-3,
prior to the date of this Agreement. Any “issuer free writing prospectus” as
defined in Rule 433 under the 1933 Act relating to the Offered Securities is
hereinafter referred to as an “Issuer
Free Writing Prospectus.”
For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or the Pricing Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to be identical
to the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“▇▇▇▇▇”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” (or other references of
like import) in the Registration Statement, any preliminary prospectus, the
Prospectus or the Pricing Prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus, the Prospectus or the Pricing Prospectus, as the case may be, prior
to the date of this Agreement; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus, the Prospectus or the Pricing Prospectus shall be deemed to mean
and
include the filing of any document under the Securities Exchange Act of 1934,
as
amended (the “1934
Act”)
which
is incorporated by reference in the Registration Statement, such preliminary
prospectus, the Prospectus or the Pricing Prospectus, as the case may be, after
the date of this Agreement.
2. Sale
and Delivery of the Offered Securities; Closing; Offering by the
Underwriters.
(a) Subject
to the terms and conditions and based upon the representations and warranties
set forth in this Agreement, the Company agrees to issue and sell to each of
the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to
purchase from the Company, at a purchase price per share of $22.86, the number
of Firm Securities set forth opposite the name of such Underwriter in Schedule
I
hereto.
(b) The
Company will deliver the Firm Securities to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the
account of each Underwriter, against payment of the purchase price by
wire
transfer of immediately available funds to an account at a bank designated
by the Company
at the
office of Sidley
Austin llp,
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as shall be agreed
upon by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company,
at
10:00 A.M., New York City time, on August 18,
2006,
or at such other time not later than seven full business days thereafter as
▇▇▇▇▇▇▇, Sachs & Co. and the
2
Company
determine, such time being herein referred to as the “First
Closing Date”.
For
purposes of Rule 15c6-1 under the 1934 Act, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date
for
payment of funds and delivery of securities for all the Offered Securities
sold
pursuant to the offering. Delivery of the Firm Securities shall be made through
the facilities of The Depository Trust Company unless ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
shall otherwise direct.
(c) The
Company hereby grants to the Underwriters the right to purchase at their
election up
to
900,000 Optional Securities, at the purchase price per Security to be paid
for
the Firm Securities.
Any
such election to purchase Optional Securities may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after
the date of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by you but in no event earlier than the First
Closing Date or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right
to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered
and
terminated at any time upon notice by you to the Company.
(d) Each
time
for the delivery of and payment for the Optional Securities, being herein
referred to as an “Optional
Closing Date”,
which
may be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a “Closing
Date”),
shall
be determined by you subject to clause (c) of this Section 2. In the event
and
to the extent that the Underwriters shall exercise the election to purchase
Optional Securities as provided above, the Company agrees to issue and sell
to
each of the Underwriters, and each of the Underwriters agrees, severally and
not
jointly, to purchase from the Company, at the purchase price per Security set
forth in clause (a) of this Section 2, that portion of the number of Optional
Securities as to which such election shall have been exercised (to be adjusted
by ▇▇▇▇▇▇▇, Sachs & Co. in its discretion so as to eliminate fractional
shares) determined by multiplying such number of Optional Securities by a
fraction, the numerator of which is the maximum number of Optional Securities
which such Underwriter is entitled to purchase as set forth opposite the name
of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Securities that all of the Underwriters are entitled
to purchase hereunder. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the
account of each Underwriter, against payment of the purchase price therefor
by
wire transfer of immediately available funds to an account at a bank
designated
by the Company,
at the
above office of Sidley Austin llp,
or at
such other place as shall be agreed upon by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and
the
Company.
Delivery of the Optional Securities shall be made through the facilities of
The
Depository Trust Company unless ▇▇▇▇▇▇▇, Sachs & Co. shall otherwise
direct.
3
(e) The
Underwriters agree to make a public offering of the Offered Securities at the
public offering price and upon the terms and conditions set forth in the
Prospectus.
3. Representations
and Warranties.
The
Company represents and warrants to the Underwriters as of the date hereof and
as
of any Closing Date as set forth below in this Section 3.
(a) Compliance
with Registration Requirements.
The
Company meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has been declared effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened.
(b) Applicable
Time.
For the
purposes of this Agreement, the “Applicable
Time”
is
5:00
p.m. (Eastern time) on the date of this Agreement. The Pricing Prospectus as
supplemented by any Issuer Free Writing Prospectuses and other information
specified in paragraphs (a) and (c) of Schedule II hereto, taken together
(collectively, the “Pricing
Disclosure Package”)
as of
the Applicable Time, did not include any untrue statement of a material fact
or
omit 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 each Issuer Free Writing Prospectus listed in paragraphs (a)
and
(b) of Schedule II does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with
the
Pricing Disclosure Package as of the Applicable Time, did not include any untrue
statement of a material fact or omit 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; provided, however, that this
representation and warranty shall not apply to statements or omissions made
in
an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters expressly
for use therein.
(c) Not
an
“Ineligible Issuer”.
At the
earliest time the Company or another offering participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2) under the ▇▇▇▇ ▇▇▇) of the Offered
Securities, the Company was not an “ineligible issuer” as defined in Rule 405
under the 1933 Act.
(d) Due
Organization.
The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Louisiana and has the corporate power
and authority to own its properties and to conduct its business as described
in
the Registration Statement.
(e) Subsidiaries.
The
Company has no “Significant Subsidiaries”, as such term is defined in Rule 405
of Regulation C of the 1933 Act Regulations, other than Cleco Power LLC
(“Cleco
Power”),
Cleco
Midstream Resources LLC, Acadia Power Holdings LLC, Cleco ▇▇▇▇▇▇▇▇▇▇ LLC
(“▇▇▇▇▇▇▇▇▇▇”),
Perryville Energy Partners LLC (“Perryville”),
Perryville Energy Holdings LLC and Acadia Power Partners LLC (“Acadia”)
(each
a “Subsidiary”
and
collectively, the “Subsidiaries”).
Each
of the Subsidiaries has been duly organized and is validly existing in good
standing under the
4
laws
of
the jurisdiction of its organization and each of the Subsidiaries has the
respective limited liability company power and authority to own its properties
and to conduct its business; and all of the issued and outstanding membership
interests of each Subsidiary have been duly authorized and validly issued,
and
are owned by the Company, directly or through a subsidiary, free from liens,
encumbrances and defects, except that the membership interests in ▇▇▇▇▇▇▇▇▇▇
have been pledged in connection with the Trust Indenture, dated as of December
10, 1999, from Cleco ▇▇▇▇▇▇▇▇▇▇ LLC to Bank One Trust Company, N.A., as
trustee.
(f) Registration
Statement and Prospectus.
At the
time the Registration Statement became effective, at each deemed effective
date
with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations and as of each Closing Date, the Registration Statement complied
and
will comply, in all material respects with the requirements of the 1933 Act
and
the 1933 Act Regulations. The Registration Statement, at the time it became
effective, did not, as of the date hereof, does not, and at each Closing Date,
will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of its date and at each Closing
Date
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply
to
statements in or omissions from the Registration Statement or Prospectus made
in
reliance upon and in conformity with information furnished to the Company in
writing by you expressly for use in the Registration Statement or Prospectus
or
to those parts of the Registration Statement which constitute the Statement
of
Eligibility and Qualification under the 1939 Act (the “Forms
T-1”)
of
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as trustee (the “Trustee”)
that
is filed as an exhibit to the Registration Statement.
(g) Incorporated
Documents.
The
documents incorporated by reference in the Pricing Prospectus and Prospectus,
at
the time they were or hereafter are filed with the Commission, complied or,
when
so filed, will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the
“1934
Act Regulations”),
and,
when read together and with the other information in the Pricing Prospectus
and
Prospectus, at the time the Registration Statement became effective, as of
the
date of the Pricing Prospectus, the Prospectus and on any Closing Date, did
not
and will not, as of such time or dates, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were or are made, not misleading; provided,
however, that the representations and warranties in this subsection shall not
apply to statements in or omissions made in reliance upon and in conformity
with
information furnished to the Company in writing by you expressly for use
therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement except as set
forth on Schedule II hereto.
5
(h) Accountants.
PricewaterhouseCoopers LLP, who have reported upon certain of the financial
statements incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(i) Internal
Control.
The
Company maintains a system of internal control over financial reporting (as
such
term is defined in Rule 13a-15(f) under the ▇▇▇▇ ▇▇▇) that complies with the
requirements of the 1934 Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their supervision,
to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. The Company’s internal control
over financial reporting is effective and the Company is not aware of any
material weaknesses in its internal control over financial
reporting.
(j) Disclosure
Controls and Procedures.
The
Company maintains disclosure controls and procedures (as such term is defined
in
Rule 13a-15(e) under the ▇▇▇▇ ▇▇▇) that comply with the requirements of the
1934
Act; such disclosure controls and procedures have been designed to ensure that
material information relating to the Company and its subsidiaries is made known
to the Company’s principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and procedures are
effective.
(k) Financial
Statements of the Company, ▇▇▇▇▇▇▇▇▇▇ and Perryville.
The
consolidated financial statements and supplemental schedules of the Company
and
the financial statements of ▇▇▇▇▇▇▇▇▇▇ and Perryville set forth in or
incorporated by reference in the Registration Statement, Pricing Prospectus
and
Prospectus have been prepared from the books and records of the Company and
its
consolidated subsidiaries, ▇▇▇▇▇▇▇▇▇▇ and Perryville, respectively, in
accordance with generally accepted accounting principles consistently followed
throughout the periods indicated (except as may be noted therein) and present
fairly the financial position of the Company and its consolidated subsidiaries,
▇▇▇▇▇▇▇▇▇▇ and Perryville, respectively, at the dates indicated and the results
of their operations, their cash flows and changes in their capital for the
periods then ended.
(l) Financial
Statements of Acadia.
The
Company has no reason to believe that the consolidated financial statements
and
supplemental schedules of Acadia set forth in or incorporated by reference
in
the Registration Statement, Pricing Prospectus and Prospectus have not been
prepared from the books and records of Acadia in accordance with generally
accepted accounting principles consistently followed throughout the periods
indicated (except as may be noted therein) nor does the Company have any reason
to believe that such financial statements do not present fairly the financial
position of Acadia at the dates indicated and the results of its operations,
cash flows and changes in capital for the periods then ended.
(m) Material
Changes or Material Transactions.
Since
the respective dates as of which information is given in the Registration
Statement, Pricing Prospectus and Prospectus, except as otherwise stated
therein, (i) there has not been any material adverse
6
change
in
the condition of the Company and its subsidiaries taken as a whole, financial
or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries, whether or not arising in the ordinary course
of
business and (ii) no material transaction has been entered into by the Company
or any of its subsidiaries other than transactions contemplated by the
Registration Statement and transactions in the ordinary course of
business.
(n) No
Defaults.
The
Company and its Subsidiaries are not in violation of or in default under any
term or provision of their respective organizational documents, each as amended,
or of any mortgage, indenture, contract, agreement, instrument, judgment, decree
or order applicable to the Company or any of its Subsidiaries or of any statute,
rule or regulation, where such violation or default would have a material
adverse effect upon the properties, assets, business, prospects or condition
(financial or otherwise) of the Company and its subsidiaries taken as a whole
(a
“Material
Adverse Effect”),
and
no event or condition has occurred or exists which, with the giving of notice
or
lapse of time or both, would result in any such violation or default which
would
have such an effect.
(o) Regulatory
Approvals.
Other
than approvals that may be required under state securities laws, no approval
of
any regulatory public body (including, but not limited to, governmental
agencies), state or federal, including approval of the Federal Energy Regulatory
Commission (“FERC”)
that
may be required under the Federal Power Act, as amended (the “FPA”),
or
any court is necessary in connection with the issuance and sale of the Offered
Securities pursuant to this Agreement.
(p) Legal
Proceedings.
Except
as described in the Pricing Prospectus, there is no material litigation or
governmental proceeding involving or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries which might reasonably
be expected to result in any material adverse change in the financial condition,
results of operations or business of the Company and its subsidiaries taken
as a
whole or which is required to be disclosed in the Registration Statement, and
no
notice has been given by any governmental authority of any proceeding to condemn
any material properties of the Company or any of its Subsidiaries, and, to
the
knowledge of the Company, no such proceeding is contemplated.
(q) Statements
Set Forth in the Prospectus.
The
statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary
of the terms of the Offered Securities are accurate and correct in all material
respects;
(r) Good
Title.
The
Company and its Subsidiaries have good title (either by way of fee simple,
leasehold, easement, right-of-way, grant, servitude, privilege, permit,
franchise or license, as the case may be) to all their properties including,
without limitation, the properties reflected in the most recent consolidated
balance sheet of the Company incorporated by reference in the Registration
Statement (except for such items thereof which have been disposed of since
such
date and which do not, in the aggregate, constitute a substantial amount)
subject only to (i) the liens and encumbrances set forth
7
on
Schedule III hereto and (ii) other encumbrances and defects which do not in
the
aggregate materially detract from the value of the properties of the Company
and
its Subsidiaries or impair or interfere with the use of properties material
to
the business and operations of the Company and its subsidiaries taken as a
whole.
(s) Regulatory
Compliance.
The
Company and its Subsidiaries are in substantial compliance with all federal
and
state environmental statutes, rules and regulations and, to the Company’s
knowledge, have received all required permits necessary for the operation of
their businesses under such statutes, rules and regulations.
(t) Authorization
and Validity of the Offered Securities.
The
Offered Securities and all other 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 applicable Closing Date, such
Offered Securities will have been, validly issued, fully paid and nonassessable
and will conform in all material respects to the description thereof contained
in the Pricing Disclosure Package and Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(u) Authorization
of this Agreement.
This
Agreement has been duly authorized, executed and delivered by the Company and
is
a valid and binding agreement of the Company; and the consummation of the
transactions contemplated by this Agreement and the performance of the Company’s
obligations hereunder will not result in any violation of, or be in conflict
with or constitute a default under, or result in the creation or imposition
of
any lien, charge or encumbrance upon any of the properties or assets of the
Company or its Subsidiaries under any mortgage, contract, indenture, agreement
or instrument to which the Company or any of its Subsidiaries is a party or
by
which any of them is bound (except for such violations, conflicts and defaults
that would not, individually or in the aggregate, have a Material Adverse
Effect) or any of the respective organizational documents of the Company and
its
Subsidiaries or any judgment, order, statute, rule or regulation applicable
to
them of any court or governmental body or instrumentality having jurisdiction
over them or their properties, and the Company has full legal right, power
and
authority to enter into this Agreement and to perform all of its obligations
hereunder.
(v) 1940
Act.
The
Company is not and, after giving effect to the offering and sale of the Offered
Securities, will not be an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(w) Listing.
Prior
to the Closing Date, the
Offered Securities will be approved for listing on the New York Stock
Exchange subject only to notice of issuance.
(x) Registration
Rights.
There
are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to include any securities
of the Company in the securities registered pursuant to the Registration
Statement.
8
4. Agreements
of the Company. The Company agrees with the Underwriters that:
(a) At
any
time when a prospectus relating to the Offered Securities is required to be
delivered under the 1933 Act, the Company will not file or make any amendment
to
the Registration Statement or any supplement to the Prospectus (except for
periodic or current reports filed under the ▇▇▇▇ ▇▇▇) unless the Company has
furnished the Underwriters a copy for their review prior to filing and given
the
Underwriters a reasonable opportunity to comment on any such proposed amendment
or supplement. The Underwriters shall make their responses thereto, if any,
promptly. The Company will file promptly all material required to be filed
by
the Company with the Commission pursuant to Rule 433(d) under the 1933 Act.
Immediately following the execution of this Agreement, the Company will prepare
a prospectus supplement, in form approved by the Underwriters, setting forth
the
number of shares of Offered Securities to be sold, the Underwriters’ name, the
price at which the Offered Securities are to be purchased by the Underwriters
from the Company, the initial offering price, the selling concession and
reallowance, if any, and such other information as the Underwriters and the
Company deem appropriate in connection with the offering of the Offered
Securities. The Company will promptly cause the Prospectus to be filed with
the
Commission pursuant to Rule 424(b) under the 1933 Act Regulations in the manner
and within the time period prescribed by such rule and will provide evidence
satisfactory to the Underwriters of such filing. The Company will promptly
advise the Underwriters (i) at any time when a prospectus relating to the
Offered Securities is required to be delivered under the 1933 Act, when any
post-effective amendment to the Registration Statement shall have been filed
or
become effective, (ii) of any request by the Commission for any
post-effective amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening by direct communication with the
Company of any proceeding for that purpose, and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Offered Securities for sale in any jurisdiction or the initiation or
threatening by direct communication with the Company of any proceeding for
such
purpose. The Company will promptly effect the filing of the Prospectus necessary
pursuant to Rule 424(b) under the 1933 Act Regulations and will take such steps
as it deems necessary to ascertain promptly whether the Prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in
the event that it was not, it will promptly file the Prospectus. The Company
will use its reasonable best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement and, if issued,
to
obtain as soon as possible the withdrawal thereof.
(b) If
at any
time when a prospectus relating to the Offered Securities is required to be
delivered under the 1933 Act, any event occurs as a result of which the
Prospectus would include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, or if it shall
be
necessary to amend the Registration Statement or to supplement the Prospectus
to
comply with the 1933 Act or the 1934 Act or the respective rules thereunder,
the
Company promptly will (i) notify the
9
Underwriters,
(ii) prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance, and (iii) supply any
supplemented Prospectus to the Underwriters in such quantities as the
Underwriters may reasonably request.
(c) During
the period when a prospectus relating to the Offered Securities is required
to
be delivered under the 1933 Act (or in lieu thereof, the notice referred to
in
Rule 173(a) under the 1933 Act), (i) the Company will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act and will furnish to the Underwriters copies
of such documents, (ii) on or prior to the date on which the Company makes
any
announcement to the general public concerning earnings or concerning any other
event which is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the 1934 Act, the Company will furnish
to the Underwriters the information contained or to be contained in such
announcement or document, and (iii) the Company will furnish to the Underwriters
copies of all other material press releases or announcements to the general
public.
(d) As
soon
as practicable, but not later than 90 calendar days after the close of the
period covered by the earnings statement, the Company will make generally
available to its security holders and to the Underwriters an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Regulations.
(e) So
long
as the Underwriters are required to deliver a prospectus in connection with
sales of the Offered Securities, the Company will furnish to the Underwriters
and their counsel, without charge, such copies of the Registration Statement
(including exhibits thereto) and Prospectus as the Underwriters may reasonably
request.
(f) The
Company will endeavor, in cooperation with the Underwriters, to arrange for
the
qualification of the Offered Securities for sale under the laws of such
jurisdictions of the United States of America as the Underwriters may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Offered Securities; provided, however, that the Company
will
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified.
(g) The
Company will apply the net proceeds from the offering of the Offered Securities
in the manner set forth under the caption “Use of Proceeds” in the Pricing
Prospectus.
(h) During
the period beginning from the date hereof and continuing to and including the
date 90 days after the date of the Prospectus, the Company will not offer,
sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Securities,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right
10
to
receive, Securities or any such substantially similar securities (other than
pursuant to employee stock option plans, employee stock ownership plans or
other
employee plans of a similar nature existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of, the date
of this Agreement), without the
prior
written consent of the ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., on behalf of the
Underwriters.
(i) The
Company shall, whether or not any sale of the Offered Securities is consummated,
pay all expenses incident to the performance of its obligations under this
Agreement, including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the Registration
Statement, any Issuer Free Writing Prospectus, the Prospectus, all amendments
thereof and supplements thereto, this Agreement and related documents delivered
to the Underwriters, the cost of preparing, printing, packaging and delivering
the Offered Securities, the fees and expenses incurred in connection with the
listing of the Offered Securities on the New York Stock Exchange, and the fees
and expenses incurred in compliance with Section 4(f) hereof. If for any reason
any Securities are not delivered by or on behalf of the Company as provided
herein, the Company shall reimburse you for all of its reasonable out-of-pocket
expenses relating to the offer and sale of the Securities contemplated by this
Agreement, including the reasonable fees and disbursements of counsel for the
Underwriters incurred in connection therewith.
(j) The
Company represents and agrees that, without the prior consent of ▇▇▇▇▇▇▇, Sachs
& Co., on behalf of the Underwriters, it has not made and will not make any
offer relating to the Offered Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the 1933 Act; each Underwriter
represents and agrees that, without the prior consent of the Company, it has
not
made and will not make any offer relating to the Offered Securities that would
constitute a free writing prospectus; any such free writing prospectus the
use
of which has been consented to by the Company and the Underwriters is listed
on
Schedule II hereto;
(k) The
Company has complied and will comply with the requirements of Rule 433 under
the
1933 Act applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission or retention where required and
legending;
(l) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to
you,
and, if requested by you, will prepare and furnish without charge to the
Underwriters an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or omissions
in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by you expressly for use
therein.
11
5. Conditions
of the Underwriters’ Obligations.
The
obligations of the Underwriters to purchase and pay for the Offered Securities
shall be subject to the accuracy of the representations and the warranties
on
the part of the Company herein contained as of the date hereof and as of each
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) The
Prospectus shall have been filed in the manner and within the time period
required by Rule 424(b) under the 1933 Act Regulations (without reliance on
Rule
424(b)(8) thereof), all material required to be filed by the Company pursuant
to
Rule 433(d) under the 1933 Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433, no stop
order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened and no stop order suspending or preventing the use of the Prospectus
or any Issuer Free Writing Prospectus shall have been initiated or threatened
by
the Commission.
(b) On
each
Closing Date, the Company shall have furnished to the Underwriters the opinion
of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company, or other counsel satisfactory
to
the Underwriters, dated such Closing Date, to the effect that:
(i) The
issue
and sale of the Offered Securities and the execution and delivery of this
Agreement by the Company and the performance by the Company of its agreements
herein will not violate any federal laws, rules or regulations of the United
States of America and the laws, rules and regulations of the State of New York,
in each case which, in such counsel’s experience, are normally applicable to
transactions of the type contemplated by this Agreement (“Applicable
Law”);
(ii) The
Offered Securities conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectus;
(iii) The
Company is not an “investment company”, as such term is defined in the
Investment Company Act;
(iv) No
approval, authorization, consent or order of any public board, body or agency
of
the federal government of the United States of America is legally required
for
the issuance and sale of the Offered Securities or the performance by the
Company of its agreements in this Agreement;
(v) The
Registration Statement has become effective under the 1933 Act and, to such
counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted or are pending or threatened under the 1933 Act; the
Registration Statement and the
12
Prospectus
(other than (i) the financial statements and schedules, including the notes
thereto, the auditors’ report thereon, contained or incorporated by reference
therein and (ii) the other financial, numerical and accounting information
contained or incorporated by reference therein, as to which no opinion need
be
rendered) appear on their faces to comply as to form in all material respects
with the requirements of Form S-3, the applicable rules and regulations with
respect thereto under the 1933 Act and the 1933 Act Regulations, to the extent
that such requirements, rules and regulations are applicable to the forms
thereof; and the Prospectus has been filed with or transmitted for filing to
the
Commission in accordance with Rule 424 of the 1933 Act Regulations;
(vi) Such
counsel does not know of any contracts or other documents of a character
required to be described in the Registration Statement or Prospectus or to
be
filed or incorporated by reference as exhibits to the Registration Statement
which are not described, filed or incorporated by reference as
required;
(vii) Such
counsel does not know of any legal proceedings pending or threatened against
the
Company of a character which are required to be disclosed in the Registration
Statement and Prospectus which have not been disclosed therein;
(viii) The
documents incorporated by reference in the Prospectus (other than (i) the
financial statements and schedules, including the notes thereto, the auditors’
report thereon, contained or incorporated by reference into such documents
and
(ii) the other financial, numerical and accounting information contained or
incorporated by reference therein, as to which no opinion need be rendered),
at
the time they were filed with the Commission, appear on their faces to comply
as
to form in all material respects with the requirements of the 1934 Act and
the
1934 Act Regulations, to the extent that such requirements, rules and
regulations are applicable to the forms thereof; and
(ix) 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
include any securities of the Company in the securities registered pursuant
to
the Registration Statements.
In
giving
such opinion, ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. may rely as to matters of Louisiana law upon
the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, acting General Counsel of the Company, or such
other satisfactory counsel, as referred to below.
(c) On
each
Closing Date, the Company shall have furnished to the Underwriters the opinion
of ▇▇▇▇ ▇. ▇▇▇▇▇▇, acting General Counsel of the Company, or
13
other
counsel satisfactory to the Underwriters, dated such Closing Date, as the case
may be, to the effect that:
(i) The
Company is a corporation duly organized and validly existing in good standing
under the laws of the State of Louisiana and has all power and authority
necessary to own its properties and to conduct the business in which it is
engaged as described in the Prospectus;
(ii) The
issue
and sale of the Offered Securities and the execution and delivery of this
Agreement by the Company and the performance by the Company of its agreements
herein will not breach or otherwise violate any order known to such counsel,
and
applicable to, the Company or its Subsidiaries in effect on the date hereof
of
any court or governmental body or instrumentality of the federal government
of
the United States of America having jurisdiction over the Company or its
Subsidiaries or its properties or their properties;
(iii) To
such
counsel’s knowledge, after due inquiry, there is no jurisdiction where the
character of the properties owned or the nature of the business conducted by
the
Company makes necessary the license or qualification of the Company as a foreign
corporation;
(iv) The
Company has full right, power and authority to enter into this Agreement and
to
perform all of its obligations hereunder or contemplated hereby and this
Agreement has been duly authorized, executed and delivered by the
Company;
(v) The
Company has an authorized capitalization as set forth in the Pricing Prospectus
and the Offered Securities delivered on such Closing Date and all other
outstanding shares of the Securities of the Company have been duly authorized
and validly issued, are fully paid and nonassessable; and the stockholders
of
the Company have no preemptive rights with respect to the
Securities;
(vi) Other
than in connection with the provisions of securities or “blue sky” laws of any
jurisdiction in which it is proposed that the Offered Securities be offered
or
sold (as to which no opinion is being rendered), no approval, authorization,
consent or order of any public board, body or agency of the State of Louisiana
is legally required as of the date hereof for the issuance and sale of the
Offered Securities, or the performance by the Company of its agreements in
this
Agreement;
(vii) Each
of
the Subsidiaries has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its organization and each of
the
Subsidiaries has the respective power and authority and foreign qualifications
necessary to own its properties and to conduct its business, except where the
failure to be so qualified or in good
14
standing
would not, individually or in the aggregate, have a Material Adverse Effect;
and
the membership interests of each Subsidiary have been duly authorized and
validly issued, and are fully paid (to the extent required in the Limited
Liability Company Agreement of the Subsidiary) and non-assessable (except as
such non-assessability may be affected by Section 18-607 of the Delaware Limited
Liability Company Act) and are owned by the Company, directly or through a
subsidiary, to such counsel’s knowledge, after due inquiry, free from liens,
encumbrances and defects, except that the membership interests in (i) Cleco
▇▇▇▇▇▇▇▇▇▇ LLC have been pledged in connection with the Trust Indenture, dated
as of December 10, 1999, from Cleco ▇▇▇▇▇▇▇▇▇▇ LLC to Bank One Trust Company,
N.A., as trustee, and (ii) Acadia Power Partners LLC have been encumbered by
purchase options and rights in favor of Calpine Acadia Holdings, LLC under
the
Amended and Restated Limited Liability Company Agreement of Acadia Power
Partners LLC dated February 29, 2000, as amended;
(viii) Except
as
disclosed in the Pricing Prospectus, to the best of such counsel’s knowledge,
the Company and its Subsidiaries are not in violation of or in default under
any
term or provision of their respective organizational documents, each as amended,
or of any mortgage, indenture, contract, agreement, instrument, judgment, decree
or order applicable to the Company or any of its Subsidiaries where such
violation or default would have a material adverse effect upon the properties,
assets, business, prospects or condition (financial or otherwise) of the Company
and its subsidiaries taken as a whole, and no event or condition has occurred
or
exists which, with the giving of notice or lapse of time or both, would result
in any such violation or default which would have such an effect;
and
(ix) The
issuance and sale of the Offered Securities and the execution and delivery
of
this Agreement by the Company and the performance by the Company of its
agreements herein will not (a) breach or result in 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 or the Subsidiaries under any existing
obligation of the Company under any indenture, agreement or instrument known
to
them to which the Company or any of the Subsidiaries are a party or by which
any
of them is bound, (b) breach or otherwise violate any order known to them and
applicable to the Company or the Subsidiaries in effect on the date hereof
of
any court or governmental body or instrumentality of the State of Louisiana
having jurisdiction over the Company or the Subsidiaries or their properties
or
(c) violate (i) the respective organizational documents of the Company or any
of
the Subsidiaries, each as amended to date, or (ii) any statute of the State
of
Louisiana in effect on the date hereof, or any published rule or regulation,
in
effect on the date hereof applicable to the Company or any of the Subsidiaries
of any governmental body or
15
instrumentality
of the State of Louisiana having jurisdiction over the Company or the
Subsidiaries or their properties that in such counsel’s experience is normally
applicable in transactions of the type contemplated by this Agreement, except
with respect to clause (a) of this paragraph, for such breaches, defaults or
violations as would not, individually or in the aggregate, have a Material
Adverse Effect.
(d) On
each
Closing Date, the Underwriters shall have received from Sidley Austin
llp,
counsel
for the Underwriters, or other counsel satisfactory to the Underwriters, such
opinion or opinions as reasonably requested by the Underwriters, dated such
Closing Date.
In
giving
such opinion, Sidley Austin llp
may rely
as to matters of Louisiana law upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, acting
General Counsel of the Company, or such other satisfactory counsel, as referred
to above.
(e) In
giving
their opinions required by subsections (b) and (d) of this Section 5, each
such counsel shall additionally state that each such counsel has participated
in
conferences with officers and other representatives of the Company, regulatory
counsel to the Company and its subsidiaries, representatives of the independent
public accountants of the Company and representatives of the Underwriters at
which the contents of the Registration Statement, the Pricing Prospectus and
the
Prospectus were discussed and, although each such counsel did not independently
verify such information and is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Pricing Prospectus or the
Prospectus (except with respect to the matters set forth in paragraph (b)(ii)
of
this Section 5), on the basis of the foregoing (relying as to factual matters
relating to the determination of materiality to a large extent upon officers
and
other representatives of the Company), nothing has come to their attention
that
would lead them to believe that (a) any part of the Registration Statement,
or
any further amendment thereto made by the Company prior to such Closing Date
(other than (i) the financial statements and schedules, including the notes
thereto, the auditors’ report thereon and the related summary of accounting
policies and management’s report on internal control over financial reporting,
contained or incorporated by reference therein, (ii) the other financial,
numerical and accounting information contained or incorporated by reference
therein and (iii) any statement or representation in any exhibit included or
incorporated by reference therein, as to which no statement need be made),
when
such part or amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (b) that the Pricing
Disclosure Package, as of the Applicable Time (other than (i) the financial
statements and schedules, including the notes thereto, the auditors’ report
thereon and the related summary of accounting policies and management’s report
on internal control over financial reporting, contained or incorporated by
reference therein and (ii) the other financial, numerical and accounting
information contained or incorporated by reference therein, as to which no
statement need be made), contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the
16
circumstances
under which they were made, not misleading, or (c) the Prospectus, as of its
date and as of the applicable Closing Date (other than (i) the financial
statements and schedules, including the notes thereto, the auditors’ report
thereon, the related summary of accounting policies and management’s report on
internal control over financial reporting, contained or incorporated by
reference therein and (ii) the other financial, numerical and accounting
information contained or incorporated by reference therein, as to which no
statement need be made), contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) On
each
Closing Date there shall not have been, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries taken as a whole, or in the earnings, business affairs
or
business prospects of the Company or its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business; and the Underwriters shall
have received a certificate of the President, the Chief Financial Officer or
the
Treasurer of the Company to the effect (i) that there has been no such material
adverse change, (ii) that the other representations and warranties of the
Company contained in Section 3 hereof are true and correct with the same force
and effect as though expressly made at and as of the date of such certificate,
(iii) that the Company has complied with all agreements and satisfied all
conditions pursuant to this Agreement on its part to be performed or satisfied
at or prior to the date of such certificate, and (iv) that no stop order
suspending the effectiveness of the Registration Statement has been issued
and,
to the best of such officers’ knowledge, no proceedings for that purpose have
been initiated or threatened by the Commission.
(g) On
the
date hereof and on each Closing Date, the Underwriters shall have received
a
letter from the Company’s independent accountants dated as of the date hereof
and as of such Closing Date, in form and substance satisfactory to
you.
(h) On
the
date hereof and on each Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance
and
sale of the Offered Securities 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 Offered Securities as herein contemplated shall
be
satisfactory in form and substance in the reasonable judgment of the
Underwriters and their counsel.
(i) On
or
prior to the date of this Agreement, the Underwriters shall have received lockup
letters substantially in the form of Exhibit A hereto from each of the executive
officers and directors of the Company listed in Exhibit B hereto.
If
any
condition specified in this Section 5 shall not have been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the
17
Company
at any time at or prior to the applicable Closing Date, and any such termination
shall be without liability of any party to any other party, except as provided
in Section 4(i), and except that Sections 4(i), 6, 9 and 12 shall survive any
such termination and remain in full force and effect.
6. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
an Underwriter within the meaning of either the 1933 Act or the 1934 Act against
any and all losses, claims, damages or liabilities, joint or several, to which
the Underwriters, the directors, officers, employees and agents of the
Underwriters and each person who controls an Underwriter within the meaning
of
either the 1933 Act or the 1934 Act or any of the aforementioned may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory
law
or regulation, at common law 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 a material fact
contained in the Registration Statement, any preliminary prospectus (including
the Pricing Prospectus), the Prospectus, or any amendment or supplement thereto,
any Issuer Free Writing Prospectus, or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the 1933 Act, 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
(in the case of the Prospectus, any preliminary prospectus, or any supplement
thereto, in light of the circumstances under which such statement was made)
not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
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 any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇, Sachs
& Co. specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of either the 1933
Act or the 1934 Act, to the same extent as the foregoing indemnity from the
Company to the Underwriters, but only with reference to written information
furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
the Underwriters may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 6 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 this Section 6,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to
18
notify
the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent the indemnifying party did not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will not, in
any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory in the reasonable judgment of the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to
represent the indemnified party would present such counsel with a conflict
of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. In no event shall an indemnifying party be liable
for
the fees and expenses of more than one counsel (in addition to any local
counsel) separate from its own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
does
not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Section 6
is
held unenforceable or is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating
or
defending same) (collectively “Losses”)
to
which the Company and the Underwriters may be subject in such proportion as
is
appropriate to reflect the relative benefits received by the Company on the
one
hand and the Underwriters on the other from the offering of the Offered
Securities from which
19
such
Losses arise. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) of the Offered Securities from which such Losses arise,
and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discount received by the Underwriters in connection with the
Offered Securities from which such Losses arise. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. In no case shall an Underwriter be responsible for any amount in
excess of the underwriting discount received by such Underwriter in connection
with the Offered Securities from which such Losses arise. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall
be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls
an
Underwriter within the meaning of the 1933 Act or the 1934 Act and each
director, officer, employee and agent of each Underwriter shall have the same
rights to contribution as each Underwriter and each person who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, each officer
of the Company who shall have signed the Registration Statement, each director
of the Company and each person, if any, who controls the Company shall have
the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
7. Termination.
(a) This
Agreement will be subject to termination by the Underwriters by notice to the
Company at any time at or prior to the applicable Closing Date if (i) there
shall have occurred, subsequent to the date hereof, any material adverse change,
or any change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, whether or not arising
in
the ordinary course of business; (ii) there has occurred any material
adverse change in the financial markets in the United States, or any outbreak
or
escalation of hostilities or other international or national calamity or crisis
has occurred, in each case, involving the United States or the declaration
by
the United States of a national emergency or war and, in each case, the effect
of which is such as to make it in the judgment of the Underwriters,
impracticable or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities; (iii) trading in the
Company’s Securities shall have been suspended or materially limited by the
Commission or any national securities exchange; (iv) trading in securities
generally shall have been suspended or materially limited or minimum or maximum
prices for trading shall have been established on any of such exchanges;
(v) a banking moratorium shall have been declared by Federal,
20
Louisiana
or New York State authorities, or a material disruption shall have occurred
in
commercial banking or securities settlement or clearance services in the United
States; (vi) the rating assigned by any nationally recognized statistical
rating organization to the debt securities of the Company as of the date hereof
shall have been lowered or withdrawn since the date hereof or if any such rating
organization shall have publicly announced that it has under surveillance or
review its ratings of such debt securities; or (vii) there has come to the
attention of the Underwriters any facts that would cause the Underwriters to
believe that the Prospectus, at the time it was required to be delivered in
connection with sales of the Offered Securities, included an untrue statement
of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time
of
such delivery, not misleading.
(b) If
this
Agreement is terminated pursuant to this Section 7, such termination shall
be
without liability of any party to any party except as provided in Section 4(i)
and Section 8 hereof, and provided further that Sections 4(i), 6, 9 and 12
shall
survive such termination and remain in full force and effect.
8. Default.
(a) If
any
Underwriter shall default in its obligation to purchase the Offered Securities
which it has agreed to purchase hereunder on a Closing Date, you may in your
discretion arrange for you or another party or other parties to purchase such
Offered Securities on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Offered Securities, then the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Offered Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Offered Securities, or the
Company notifies you that it has so arranged for the purchase of such Offered
Securities, you or the Company shall have the right to postpone such Closing
Date for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
to
file promptly any amendments or supplements to the Registration Statement or
the
Prospectus which in your opinion may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Offered Securities.
(b) If,
after
giving effect to any arrangements for the purchase of the Offered Securities
of
a defaulting Underwriter or Underwriters by you and the Company as provided
in
subsection (a) above, the aggregate number of such Offered Securities which
remains unpurchased does not exceed one-eleventh of the aggregate number of
all
the Offered Securities to be purchased on such Closing Date, then the Company
shall have the right to require each non-defaulting Underwriter to purchase
the
number of Offered Securities which such Underwriter agreed to purchase hereunder
on such Closing Date and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Offered
Securities which such Underwriter agreed to purchase
21
hereunder)
of the Offered Securities of such defaulting Underwriter or Underwriters
for
which such arrangements have not been made; but nothing herein shall relieve
a
defaulting Underwriter from liability for its default.
(c) If,
after
giving effect to any arrangements for the purchase of the Offered Securities
of
a defaulting Underwriter or Underwriters by you and the Company as provided
in
subsection (a) above, the aggregate number of such Offered Securities which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Offered Securities to be purchased on such Closing Date, or if the Company
shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Offered Securities of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to an
Optional Closing Date, the obligations of the Underwriters to purchase and
of
the Company to sell the Optional Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided
in
Section 4(i) hereof and the indemnity and contribution agreements in Section
6
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
9. Survival
of Certain Provisions.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
the
Company or any of the directors, officers, employees, agents or controlling
persons referred to in Section 6 hereof, and will survive delivery of and
payment for the Offered Securities. The provisions of Section 4(i), 6 and
12 hereof and this Section 9 shall survive the termination or cancellation
of
this Agreement.
10. Notices.
All communications hereunder will be in writing and effective only on receipt,
and, if sent to the Underwriters, will be mailed, delivered or telegraphed
and
confirmed to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: Registration Department (or such other place as ▇▇▇▇▇▇▇, Sachs
& Co. may specify in writing), or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Treasurer (or such other place as the
Company may specify in writing).
11. Successors.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective successors, the directors, officers, employees, agents
and controlling persons referred to in Section 6 hereof and no other person
will
have any right or obligation hereunder.
12. Fiduciary
Status. The Company acknowledges and agrees that (i) the purchase and sale
of
the Offered Securities pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the Underwriters, on
the
other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent
or fiduciary of the Company, (iii) each Underwriter has
22
not
assumed an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) or any other obligation to the Company except
the
obligations expressly set forth in this Agreement and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that any Underwriter
has
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process
leading thereto.
13. Prior
Agreements. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any
of
them, with respect to the subject matter hereof.
14. Applicable
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
15. Waiver.
The Company and the Underwriters hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
16. 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.
23
If
the
foregoing is in accordance with the your understanding of our agreement, please
sign and return to the Company the enclosed duplicate hereof, whereupon this
letter along with all counterparts will represent a binding agreement between
the Company and the Underwriters.
Very
truly
yours,
CLECO
CORPORATION
By:
/s/
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Senior Vice
President and Chief Financial
Officer
|
The
foregoing Agreement is hereby
confirmed
and accepted as of the date hereof.
/s/ ▇▇▇▇▇▇▇, Sachs &
Co.
(▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co.)
|
On behalf of each of the Underwriters
24
EXHIBIT
A
[Form
of Lock-Up Agreement]
▇▇▇▇▇▇▇,
Sachs & Co.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Re:
Cleco
Corporation - Lock-Up Agreement
Ladies
and Gentlemen:
The
undersigned understands that you, as representative, propose to enter into
an
Underwriting Agreement, on behalf of the several Underwriters named in Schedule
I to such agreement (collectively, the “Underwriters”), with Cleco Corporation,
a Louisiana corporation (the “Company”), providing for a public offering of
shares of common stock, par value $1.00 per share, of the Company (the “Shares”)
pursuant to one or more Registration Statements on Form S-3 that have been
filed
with, and declared effective under the Securities Act of 1933, each as amended,
by the Securities and Exchange Commission (the “SEC”).
In
consideration of the agreement by the Underwriters to offer and sell the Shares,
and of other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the undersigned agrees that, during the period
beginning from the date hereof and continuing to and including the date 90
days
after the date of the final Prospectus Supplement covering the public offering
of the Shares (the “Prospectus Supplement”), the undersigned will not offer,
sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise dispose of any shares of common stock of the Company, or
any
options or warrants to purchase any shares of common stock of the Company,
or
any securities convertible into, exchangeable for or that represent the right
to
receive shares of common stock of the Company, whether now owned or hereafter
acquired, owned directly by the undersigned (including holding as a custodian)
or with respect to which the undersigned has beneficial ownership within the
rules and regulations of the SEC (collectively the “Undersigned’s
Shares”).
The
foregoing restriction is expressly agreed to preclude the undersigned from
engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition
of
the Undersigned’s Shares even if such Shares would be disposed of by someone
other than the undersigned. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or grant of
any
right (including without limitation any put or call option) with respect to
any
of the Undersigned’s Shares or with respect to any security that includes,
relates to, or derives any significant part of its value from such
Shares.
Notwithstanding
the foregoing, the undersigned may transfer the Undersigned’s Shares (i) as a
bona
fide
gift or
gifts, provided that the donee or donees thereof agree to be bound in writing
by
the restrictions set forth herein, (ii) to any trust for the direct or indirect
benefit of the
A-1
undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, or (iii) with the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on
behalf of the Underwriters; provided that
the
undersigned, together with all of the other officers and directors of the
Company who have signed similar lock-up agreements, may, with the prior written
consent of the Company, sell, transfer or otherwise dispose of up to 100,000
shares in the aggregate of common stock of the Company during the period
beginning on the date 60 days after the date of the Prospectus Supplement,
and
continuing to and including the date 90 days after the date of the Prospectus
Supplement (it being understood and acknowledged
that such consent by the Company is for the purpose of ensuring that such
officers and directors in the aggregate do not dispose of in excess of 100,000
shares of common stock of the Company during the period specified
above).
For
purposes of this Lock-Up Agreement, “immediate family” shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
The undersigned now has, and, except as contemplated by clause (i), (ii), or
(iii) above, for the duration of this Lock-Up Agreement will have, good and
marketable title to the Undersigned’s Shares, free and clear of all liens,
encumbrances, and claims whatsoever. The undersigned also agrees and consents
to
the entry of stop transfer instructions with the Company’s transfer agent and
registrar against the transfer of the Undersigned’s Shares except in compliance
with the foregoing restrictions.
The
undersigned understands that the Company and the Underwriters are relying upon
this Lock-Up Agreement in proceeding toward consummation of the offering. The
undersigned further understands that this Lock-Up Agreement is irrevocable
and
shall be binding upon the undersigned’s heirs, legal representatives,
successors, and assigns.
Very
truly
yours,
________________________________________
Exact
Name of Shareholder
________________________________________
Authorized
Signature
________________________________________
Title
A-2
EXHIBIT
B
Directors
Cadoria,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇,
J. ▇▇▇▇▇▇▇
▇▇▇▇▇,
F.
▇▇▇, Jr.
▇▇▇▇,
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇., Sr.
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇., ▇▇.
▇▇▇▇▇▇▇▇▇,
W. ▇▇▇▇▇
Officers
Bausewine,
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. III
▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇,
R.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇,
▇▇▇▇ ▇.
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇,
▇▇▇▇ ▇.
Samil,
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇ ▇.
A-3
|
SCHEDULE
I
|
||||
|
Number
of Optional
|
||||
|
Securities
to be
|
||||
|
Total
Number of
|
Purchased
if
|
|||
|
Firm
Securities
|
Maximum
Option
|
|||
|
Underwriter
|
to
be Purchased
|
Exercised
|
||
|
▇▇▇▇▇▇▇,
Sachs & Co.
|
3,600,000
|
540,000
|
||
|
KeyBanc
Capital Markets, a division of McDonald Investments, Inc.
|
1,800,000
|
270,000
|
||
|
▇.▇.
▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇
▇▇▇▇ Incorporated
|
300,000
300,000
|
45,000
45,000
|
||
|
|
||||
|
|
6,000,000
|
900,000
|
||
A-4
SCHEDULE
II
(a) Issuer
Free Writing Prospectuses included in the Pricing Disclosure
Package:
None.
(b) Issuer
Free Writing Prospectuses not included in the Pricing Disclosure
Package:
Electronic
road show.
(c) Information
other than the Pricing Prospectus that comprise the Pricing Disclosure
Package:
$
23.75
(d) Documents
incorporated by reference in the Pricing Prospectus and Prospectus that were
filed with the Commission by the Company since the Commission’s close of
business on the business day immediately prior to the date of this Agreement
and
prior to the execution of this Agreement:
None.
A-5
SCHEDULE
III
LIENS
ON PROPERTIES OF CLECO CORPORATION,
CLECO
POWER LLC, CLECO MIDSTREAM RESOURCES LLC,
CLECO
▇▇▇▇▇▇▇▇▇▇ LLC, AND ACADIA POWER HOLDINGS LLC
Cleco
Corporation
None
Cleco
Power LLC
| 1) |
Indenture
of Mortgage, dated July 1, 1950, as supplemented and amended, from
Cleco
Power LLC to ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association (formerly
Bank One Trust Company, N.A.), as
trustee.
|
Cleco
Midstream Resources LLC
| 1) |
Cleco
Midstream Resources LLC’s interest in Cleco ▇▇▇▇▇▇▇▇▇▇ LLC is pledged in
connection with the Trust Indenture, dated as of December 10, 1999,
by
Cleco ▇▇▇▇▇▇▇▇▇▇ LLC and ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
(formerly Bank One Trust Company, N.A.), as trustee (the “▇▇▇▇▇▇▇▇▇▇ Trust
Indenture”).
|
Cleco
▇▇▇▇▇▇▇▇▇▇ LLC
| 1) |
All
material assets of Cleco ▇▇▇▇▇▇▇▇▇▇ LLC are encumbered in connection
with
the ▇▇▇▇▇▇▇▇▇▇ Trust Indenture.
|
Acadia
Power Holdings LLC
| 1) |
Acadia
Power Holdings LLC’s interest in Acadia Power Partners LLC is encumbered
by purchase options and rights in favor of Calpine Acadia Holdings,
LLC
under the Amended and Restated Limited Liability Company Agreement
of
Acadia Power Partners LLC dated February 29, 2000, as
amended.
|
Sch
A-1