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Exhibit 1.2
Execution Copy
7,500,000 SHARES
TECO ENERGY, INC.
COMMON STOCK, PAR VALUE $1.00 PER SHARE
UNDERWRITING AGREEMENT
March 6, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. TECO Energy, Inc., a Florida corporation (the
"Company"), proposes to issue and sell to the Underwriters 7,500,000 shares (the
"Firm Securities") of its common stock, par value $1.00 per share (the "Common
Stock"), and also proposes to issue and sell to the Underwriters, at the option
of the Underwriters, an aggregate of not more than 1,125,000 additional shares
(the "Optional Securities") of its Common Stock, in each case registered under
the registration statement referred to in Section 2(a). The Firm Securities and
the Optional Securities are herein collectively called the "Offered Securities."
The Company hereby agrees with the several Underwriters named in
Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-50808), including a prospectus,
relating to the Offered Securities has been filed with the Securities and
Exchange Commission (the "Commission") and has become 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 included in such Registration
Statement, as supplemented to reflect the terms of offering of the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)")
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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, such
Registration Statement conformed in all material respects to the requirements of
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 any Closing
Date 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 statements in or
omissions from any of such documents based upon written information furnished to
the Company by or on behalf of any Underwriter through the representative(s) of
the Underwriters (the "Representatives"), if any, 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 B 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 (as described below); and
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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 (as
defined below); 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 (as defined
below).
(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 (as defined
below), 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.
(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 any 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
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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 (as defined below)
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 (as defined below); 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 (as
defined below).
(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
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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); 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 1933 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 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
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase
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price of $26.918 per share, the respective numbers of shares of Firm Securities
set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, 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 the First Closing Date (as defined below), at 9:00 A.M., New York
time, on March 12, 2001, at the offices of ▇▇▇▇▇▇ & Dodge LLP, Boston,
Massachusetts, or at such other place and time not later than seven full
business days thereafter as Credit Suisse First Boston Corporation ("CSFBC") and
the Company determine, such time being herein referred to as the "First Closing
Date". For purposes of Rule 15c6-1 under the Exchange 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. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC 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.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per share to be paid for the Firm Securities. The Company agrees
to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and each of the Underwriters agrees, severally and not
jointly, to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. 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 CSFBC to the Company.
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 CSFBC,
but shall not be earlier than three (one in case the Optional Securities are to
be delivered on the First Closing Date) nor later than five full business days
after written notice of election to purchase Optional Securities is given. The
Company will deliver the Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by wire transfer to a bank account
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designated by the Company and open for the receipt of funds (and verification of
the receipt thereof) on the Optional Closing Date, at the above offices of
▇▇▇▇▇▇ & Dodge LLP. The certificates for the Optional Securities being purchased
on each Optional Closing Date will be in definitive form, in such denominations
and registered in such names as CSFBC requests upon reasonable notice prior to
such Optional Closing Date and will be made available for checking and packaging
at the office of The Depository Trust Company or its designated custodian at a
reasonable time in advance of such Optional Closing Date.
It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the Prospectus.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed 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 CSFBC 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 CSFBC promptly in writing of any proposal
to amend or supplement the Registration Statement or the Prospectus and will not
effect any such amendment or supplementation to which CSFBC has reasonably
objected in writing; and the Company will also advise CSFBC 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
any Underwriter or 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
CSFBC 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 CSFBC's
consent to, nor the Underwriters' 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
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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 Representatives 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 CSFBC reasonably requests. The Company will pay the
expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Offered Securities for sale under the laws of such
jurisdictions as CSFBC 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 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 Representatives and, upon request, to each of
the other Underwriters, if any, 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 Representatives (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 CSFBC 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 Underwriters, which fees and
disbursements of counsel shall not exceed $5,000) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC 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 Underwriters
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 Underwriters.
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(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of its
Common Stock or securities convertible into or exchangeable or exercisable for
any shares of its Common Stock, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior written
consent of CSFBC for a period beginning at the time of execution of this
Agreement and ending 60 days after the First Closing Date, except issuances of
Common Stock pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each case
outstanding on the date of this Agreement, grants of equity-based awards to its
directors, officers and employees pursuant to the terms of its director or
employee incentive plans or Dividend Reinvestment and Common Stock Purchase Plan
as in effect on the date of this Agreement or issuances of Common Stock pursuant
to the exercise of such options.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters 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 Representatives 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;
(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;
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(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 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 any 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
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(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole which, in the judgment of a
majority in interest of the Underwriters including the Representatives, 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), other than a downgrade of
the rating of the Company's senior unsecured debt securities of no more than one
rating category by ▇▇▇▇▇'▇ Investors Service, Inc., or any public announcement
that any nationally recognized statistical rating 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 (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 if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ & Dodge LLP, counsel for the Company, satisfactory in
form and substance to the Representatives 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 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;
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(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, 1999 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 of 1935, as amended (the "Public Utility Holding Company
Act"), except Section 9(a)(2) thereof relating to the acquisition of securities
of other public utility companies;
(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;
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(xii) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and any amendment or supplement
thereto, 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 Representatives. 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 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, the date of
this Agreement or as of the Closing Date, or any amendment thereto, as of its
effective date or as of the Closing 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 the date of this Agreement 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 opinion 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 CSFBC but is without independent check and
verification.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., general counsel of the Company,
satisfactory in form and substance to the Representatives and to the effect
that:
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(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 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, 1999
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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 Representatives.
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, the date of this Agreement or as of the Closing Date, or any
amendment thereto, as of its effective date or as of the Closing 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 the date of this Agreement 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 opinion 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 CSFBC but is
without independent check and verification.
(f) The Representatives shall have received from Ropes & ▇▇▇▇, counsel
for the Underwriters, 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 Representatives 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 Representatives 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
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or results of operations 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 Representatives 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 Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters under this
Agreement.
6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each Person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such 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 each
Underwriter for any legal or other expenses reasonably incurred by such
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 any Underwriter through
the Representatives, if any, specifically for use therein, it being understood
and agreed that the only such information furnished by any 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 any Underwriter (or any person controlling such Underwriter) from
whom the Person asserting any such loss, claim, damage or liability purchased
the Offered Securities that are the subject thereof if such 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 such Underwriter at or prior to confirmation of sale) in any case
where such delivery is required
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by the Act, the Company has provided to such Underwriter sufficient quantities
of the Prospectus (or the Prospectus, as amended or supplemented) in sufficient
time to enable such 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) Each 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 such
Underwriter through the Representatives, if any, 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 any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information contained in the
tenth paragraph 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
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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.
(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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters. 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 Underwriters 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 such 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. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(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 such
Underwriter and each Person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act; and the obligations of
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the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters 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. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under this Agreement and the
aggregate number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total of Offered Securities, CSFBC may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other Persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under this Agreement, to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate number
of shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total number of shares of Offered Securities and
arrangements satisfactory to CSFBC and the Company for the purchase of such
Offered Securities by other persons are not made within 24 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 8. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters 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 any 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 this Agreement is terminated pursuant
to Section 7 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the 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 Underwriters pursuant to Section 6 shall
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 7 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters 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.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the
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Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, with a copy
to the Corporate Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and the Underwriters 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.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with this Agreement, and any action taken
by the Representatives jointly or by CSFBC will be binding upon all the
Underwriters.
12. 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.
13. 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.
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If the foregoing is in accordance with the Representative's
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 several Underwriters in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President -- Finance and CFO
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself and as the
Representative of the several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
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SCHEDULE A
Number of
Underwriter Firm Securities
Credit Suisse First Boston Corporation 2,657,600
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 1,328,800
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 1,328,800
UBS Warburg LLC 1,328,800
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 167,500
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 167,500
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. 167,500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. 167,500
J. J. B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. 31,000
Invemed Associates LLC 31,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 31,000
McDonald Investments, Inc. 31,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 31,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 31,000
------------
Total 7,500,000
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Schedule B
1. Tampa Electric Company
2. TECO Transport Corporation
3. TECO Diversified, Inc.
4. TECO Power Services Corporation
5. TECO Coal Corporation
23
