EXHIBIT 1.1
$______________
FPC CAPITAL I
(a Delaware Statutory Business Trust)
________% Cumulative Quarterly Income Preferred Securities, Series A
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
_____________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
FPC Capital I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ((S)(S) 3801 et seq.),
Florida Progress Funding Corporation, a Delaware corporation ("Funding"), and
Florida Progress Corporation, a Florida corporation (the "Company" and, together
with the Trust and Funding, the "Offerors"), confirm their agreement (the
"Agreement") with you and each of the other Underwriters named in Schedule I
hereto (collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
you are acting as representatives (in such capacity, you shall hereinafter be
referred to as the "Representatives"), with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of _____% Cumulative Quarterly Income Preferred Securities,
Series A (liquidation amount $25 per Preferred Security) of the Trust
("Preferred Securities") set forth in Schedule I. The Preferred Securities will
be guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Preferred Securities Guarantee")
pursuant to the Guarantee Agreement (the "Guarantee Agreement"), dated as of
___________ 1, 1999, between the Company and The First National Bank of Chicago,
as trustee (the "Preferred Securities Guarantee Trustee"). The Preferred
Securities and the related Preferred Securities Guarantee are referred to herein
as the "Securities."
The Offerors understand that the Underwriters propose to make a public
offering of the Preferred Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The entire proceeds from the sale of the Securities will be combined
with the entire proceeds from the sale by the Trust to Funding of its common
securities (the "Common Securities") and will be used by the Trust to purchase
the $_________ aggregate principal amount of _____% Series A Junior Subordinated
Deferred Interest Notes due ______________, 2039 (the "Junior Subordinated
Notes") to be issued by Funding. The Junior Subordinated Notes will be
guaranteed by the Company with respect to interest and principal, including
payments on acceleration, redemption and otherwise (the "Notes Guarantee")
pursuant to the terms of the Indenture (as defined herein).
The Preferred Securities and the Common Securities will be issued
pursuant to the Amended and Restated Trust Agreement, dated as of _____________
1,1999 (the "Trust Agreement"), among Funding, as Depositor, PROGRESS RAIL
SERVICES CORPORATION, an Alabama corporation (the "Administrative Trustee"),
First Chicago Delaware Inc., a Delaware banking corporation (the "Delaware
Trustee") and The First National Bank of Chicago, a national banking association
(the "Property Trustee" and, together with the Delaware Trustee and the
Administrative Trustee, the "Trustees"), as trustees, and the holders from time
to time of undivided beneficial interests in the assets of the Trust. The Junior
Subordinated Notes will be issued pursuant to an indenture, dated as of
____________ 1, 1999 (the "Indenture"), among Funding, the Company and The First
National Bank of Chicago, as trustee (the "Debenture Trustee").
The Company and the Trust will enter into an Agreement as to Expenses
and Liabilities dated as of _________ 1, 1999 (the "Agreement as to Expenses and
Liabilities"). Pursuant to the Agreement as to Expenses and Liabilities, the
Company will guarantee to each person or entity to whom the Trust may be
indebted or liable, the full payment of such obligations.
Section 1. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and, where indicated, as of the Closing Date
(as hereinafter defined) as follows:
(a) A registration statement on Form S-3, as amended (File No.
____________________), in respect of the Preferred Securities, the Preferred
Securities Guarantee, the Notes Guarantee, the Junior Subordinated Notes and
certain other securities ("Registered Securities") has been prepared and filed
in accordance with the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered to
the Underwriters, has been declared effective by the Commission in such form
(except that copies of the registration statement, as amended, and any post-
effective amendment delivered to the Underwriters need not include exhibits but
shall include all documents incorporated by reference therein); and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any preliminary
prospectus, as supplemented by a preliminary prospectus supplement, included in
such registration statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Securities Act, being
hereinafter called a "Preliminary Prospectus"); such registration statement, as
it became effective, including the exhibits thereto and all documents
incorporated by
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reference therein pursuant to Item 12 of Form S-3 at the time such registration
statement became effective, being hereinafter called the "Registration
Statement"; the prospectus relating to the Registered Securities, in the form in
which it was included in the Registration Statement at the time it became
effective, being hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include the most
recent annual report on Form 10-K of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
the Prospectus as amended or supplemented in final form by a prospectus
supplement relating to any of the Registered Securities in the form in which it
is filed with the Commission, pursuant to Rule 424(b) under the Securities Act
in accordance with Section 3(g) hereof, including any documents incorporated by
reference therein as of the date of such filing, being hereinafter called the
"Final Supplemented Prospectus."
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the Exchange Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents 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, in
the light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents are filed
with the Commission, will comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the Commission
thereunder and, when read together with the Prospectus as it otherwise may be
amended or supplemented, 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, in the light of the circumstances under which they
were made, not misleading, except that neither the Trust, Funding nor the
Company makes any warranty or representation to any Underwriter with respect to:
(A) any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use in the Prospectus or Final Supplemented
Prospectus, which shall only include information specifically referenced on
Schedules I or II or Exhibit A hereto; or (B) any information set forth in the
Prospectus or the Final Supplemented Prospectus under the caption Book Entry
Only Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, in all material respects, in form and substance,
with the applicable provisions of the Securities Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended (the "TIA") and the rules and
regulations of the Commission thereunder and neither the Registration Statement,
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the Prospectus, nor the Final Supplemented Prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that neither the Company, Funding nor the Trust makes any warranties or
representations with respect to (A) that part of the Registration Statement
which shall constitute the Statements of Eligibility (Form T-1) (collectively,
the "Form T-1") under the TIA, (B) any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use in the Prospectus
or Final Supplemented Prospectus, which shall only include information
specifically referenced on Schedules I or II or Exhibit A hereto or (C) any
information set forth in the Prospectus or the Final Supplemented Prospectus
under the caption Book-Entry Only Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for
use of Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, (a) neither the Company and its subsidiaries
(excluding Funding) considered as one enterprise or Funding has sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, (b) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries (excluding Funding) considered as one enterprise or
Funding or any material adverse change, or, to the best of the Company's
knowledge, any development involving a prospective material adverse change, in
the condition (financial or other), net worth or results of operations or
business affairs or business prospects of the Company and its subsidiaries
(excluding Funding) considered as one enterprise or Funding and (c) there has
not been any material transaction entered into by the Company and its
subsidiaries (excluding Funding) considered as one enterprise or Funding other
than transactions in the usual course of business. Neither the Company nor
Funding has any material contingent obligations which are not disclosed in the
Registration Statement and the Final Supplemented Prospectus.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has not been any material adverse change or, to
the best of the Company's knowledge, any development involving a prospective
material adverse change in or affecting the business, properties or financial
condition of the Trust (it being understood that any such change involving only
the Company shall not constitute such a change with respect to the Trust).
(g) 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 power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under this Agreement,
the Indenture and the Guarantee Agreement and to issue and deliver the Preferred
Securities Guarantee and the Notes Guarantee. The Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership
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or lease of substantial properties or the conduct of its business requires such
qualification and in which the failure to so qualify and be in good standing
would materially adversely affect its business or financial condition.
(h) Funding has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under this Agreement,
the Trust Agreement and the Indenture and to purchase, own and hold the Common
Securities issued by the Trust and to issue the Junior Subordinated Notes.
Funding is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which the failure to so qualify and be in good standing
would materially adversely affect its business or financial condition.
(i) The Trust has been duly created and is validly existing and in
good standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and the Final Supplemented Prospectus and to enter into
and perform its obligations under this Agreement and the Trust Agreement. The
Trust is duly qualified to transact business as a foreign company and is in good
standing in each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification and in
which the failure to so qualify and be in good standing would materially
adversely affect its business or financial condition. The Trust is not a party
to or otherwise bound by any agreement other than those described in the Final
Supplemented Prospectus. The Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to Funding against payment
therefor as described in the Registration Statement and the Final Supplemented
Prospectus, will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial interests in
assets of the Trust and will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus. The issuance
of the Common Securities is not subject to preemptive or other similar rights;
and, on the Closing Date (as defined herein), all of the issued and outstanding
Common Securities of the Trust will be directly owned by Funding, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(k) As to each Offeror, this Agreement has been duly authorized,
executed and delivered by it.
(l) The Trust Agreement has been duly authorized by Funding and, on
the Closing Date, will have been duly executed and delivered by Funding and the
Administrative Trustee, and assuming due authorization, execution and delivery
of the Trust Agreement by the Delaware Trustee and the Property Trustee, the
Trust Agreement will, on the Closing Date, be a valid and binding obligation of
Funding and the Administrative Trustee, enforceable against Funding and
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the Administrative Trustee in accordance with its terms, except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
(2) general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the "Enforceability
Exceptions") and will conform in all material respects to all statements
relating thereto in the Final Supplemented Prospectus; and on the Closing Date,
the Trust Agreement will have been duly qualified under the TIA.
(m) The Guarantee Agreement and the Agreement as to Expenses and
Liabilities have been duly authorized by the Company and, on the Closing Date,
will have been duly executed and delivered by the Company, and, assuming due
authorization, execution and delivery of the Guarantee Agreement and the
Agreement as to Expenses and Liabilities by the other respective parties
thereto, the Guarantee Agreement and the Agreement as to Expenses and
Liabilities will, on the Closing Date, constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, and each of the Preferred Securities Guarantee, the
Agreement as to Expenses and Liabilities and the Guarantee Agreement will
conform in all material respects to all statements relating thereto contained in
the Final Supplemented Prospectus, and, on the Closing Date, the Guarantee
Agreement will have been duly qualified under the TIA.
(n) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued
and (subject to the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement and will conform in all material respects to
all statements relating thereto contained in the Final Supplemented Prospectus;
the issuance of the Preferred Securities is not subject to preemptive or other
similar rights; and (subject to the terms of the Trust Agreement) holders of
Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private corporations
for profit.
(o) The Indenture has been duly authorized by Funding and the
Company, and on the Closing Date, will have been duly executed and delivered by
Funding and the Company, and, assuming due authorization, execution and delivery
of the Indenture by the Debenture Trustee, the Indenture will, on the Closing
Date, constitute a valid and binding obligation of each of Funding and the
Company, enforceable against each of Funding and the Company in accordance with
its terms except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; the Indenture will conform in all material respects
to all statements relating thereto contained in the Final Supplemented
Prospectus; and on the Closing Date, the Indenture will have been duly qualified
under the TIA.
(p) The issuance and delivery of the Junior Subordinated Notes have
been duly authorized by Funding and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by Funding and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of Funding, enforceable against
Funding in accordance with their terms, except to the extent that enforcement
thereof may be limited by the
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Enforceability Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(q) The Company's obligations under the Preferred Securities
Guarantee (i) are subordinate and junior in right of payment to all liabilities
of the Company, except those obligations or liabilities made pari passu or
subordinate by their terms, (ii) are pari passu with the preferred stock that
may be issued by the Company and (iii) are senior to all common stock of the
Company.
(r) The Junior Subordinated Notes are subordinated and junior in
right of payment to all "Senior Debt" (as defined in the Indenture) of Funding.
(s) The Notes Guarantee is subordinate and junior to all "Senior
Debt" (as defined in the Indenture) of the Company.
(t) The Administrative Trustee of the Trust has been duly authorized
by the Company to execute and deliver the Trust Agreement.
(u) The accountants who certified the financial statements included
in the Registration Statement and the Final Supplemented Prospectus are
independent public accountants within the meaning of the Securities Act and the
rules and regulations promulgated thereunder.
(v) Neither Funding, the Company, or any of the Company's significant
subsidiaries (each a "Significant Subsidiary") as defined in Rule 405 of
Regulation C of the rules and regulations promulgated under the Securities Act
is in violation of its articles of incorporation or by-laws or in breach or
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, mortgage, loan
agreement, lease, note or other instrument to which it is a party or by which it
or any of them may be bound or to which any of their properties may be subject,
or any rule, order, law, administrative regulation or administrative or court
order, except to the extent set forth in the Registration Statement and the
Final Supplemented Prospectus.
(w) Each of the Company and Funding is exempt from any provisions
imposed upon it as a "holding company" or a "subsidiary company" of a "holding
company", respectively, by the Public Utilities Holding Company Act of 1935, as
amended (the "1935 Act"), except Section 9(a)(2) thereof.
(x) Neither the Company, Funding nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act"), and is not
required to register or take any other action with respect to or under the 1940
Act by reason of the offering and sale of the Preferred Securities.
(y) The execution, delivery and performance by the Offerors of this
Agreement and by the Trust and Funding of the Trust Agreement, the Preferred
Securities, the Common Securities, the Junior Subordinated Notes, and by Funding
and the Company of the Indenture, and
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by the Company of the Guarantee Agreement, the Agreement as to Expenses and
Liabilities, the Preferred Securities Guarantee and the Notes Guarantee and the
consummation by the Offerors of the transactions contemplated herein and therein
and compliance by the Offerors with their respective obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate action of
the Offerors and do not and will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, the articles of
incorporation or by-laws of the Company or Funding or the Trust Agreement or the
related Certificate of Trust, any material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Trust,
Funding or the Company is a party, or by which it or any of them is bound or to
which any of their properties may be subject, or result in the violation of any
law, order, rule, administrative regulation or administrative or court decree
applicable to the Trust, Funding or the Company, of any court or of any Federal
or state regulatory body or administrative agency or other governmental body
having jurisdiction over the Trust, Funding or the Company or their respective
properties; and there are no proceedings, at law or in equity or before any
governmental agency or body, pending, or to the knowledge of the Company
threatened, which affect or may affect any of said transactions.
(z) No consent, approval, authorization or order of any court or
public board or body (including the Securities and Exchange Commission) is
required in connection with the issuance and sale of the Common Securities or
the offering of the Preferred Securities, the Junior Subordinated Notes, the
Preferred Securities Guarantee or the Notes Guarantee or the transactions
contemplated in this Agreement, except (A) such as may be required under the
Securities Act or the rules and regulations thereunder; (B) such as may be
required under the 1935 Act; (C) the qualification of the Trust Agreement, the
Preferred Securities Guarantee Agreement and the Indenture under the TIA; and
(D) such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws.
(aa) Except as may be set forth in the Registration Statement and the
Final Supplemented Prospectus, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting, the
Company or any of its subsidiaries (including Funding) which might result in any
material adverse change in the earnings, business affairs or business prospects
of the Company and its subsidiaries (including Funding) considered as one
enterprise, or which might materially and adversely affect the properties or
assets thereof or might materially and adversely affect the consummation of this
Agreement.
Section 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule II hereto, the number of Preferred
Securities set forth in Schedule I opposite the name of such Underwriter, plus
any additional number of Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
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(b) The purchase price per Preferred Security to be paid by the
several Underwriters for the Preferred Securities shall be an amount equal to
the initial public offering price set forth on Schedule II, which is a fixed
price determined by agreement between the Representatives and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of Funding, the Company hereby agrees
to pay on the Closing Date (as defined below) to the Representatives, for the
accounts of the several Underwriters, a commission per Preferred Security as set
forth on Schedule II for the Preferred Securities to be delivered by the Trust
hereunder on the Closing Date.
(c) Payment of the purchase price for, and delivery of certificates
for, the Preferred Securities shall be made at the offices of Jones, Day, Reavis
& Pogue, 599 Lexington Avenue, New York, New York 10022, at 10:00 A.M., New
York time, on __________,1999 (unless postponed in accordance with the
provisions of Section 10) or such other time, place or date as shall be agreed
upon by the Representatives, the Trust, Funding and the Company (such time and
date of payment and delivery being herein called the "Closing Date"). Payment
shall be made to the Trust, by wire transfer in federal funds at the Closing
Date, against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Preferred Securities to be purchased by
them. Certificates for the Preferred Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least two business days before the Closing Date. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Preferred Securities which it has agreed to purchase. The Representatives,
individually and not as Representatives of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) The certificate(s) for the Preferred Securities will be made
available for examination and packaging by the Representatives not later than
12:00 Noon, New York time, on the last business day prior to the Closing Date.
(e) On the Closing Date, the Company will pay, or cause to be paid,
the commission payable at such time to the Underwriters under Section 2(b)
hereof by wire transfer to the Representatives in federal funds.
Section 3. COVENANTS OF THE OFFERORS.
Each of the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will deliver to
the Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by reference,
unless specifically
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requested). As soon as the Company is advised thereof, it will advise the
Representatives orally of the issuance of any stop order under the Securities
Act with respect to the Registration Statement, or the institution of any
proceedings therefor, of which the Company shall have received notice, and will
use its be st efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Offerors will deliver to the
Underwriters sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to each
Underwriter and, from time to time, as many copies of the Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act or the Exchange Act.
(b) The Offerors will furnish the Underwriters with copies of each
amendment and supplement to the Prospectus and the Final Supplemented Prospectus
relating to the offering of the Preferred Securities in such quantities as the
Underwriters may from time to time reasonably request. If, during the period
(not exceeding nine months) when the delivery of a prospectus shall be required
by law in connection with the sale of any Preferred Securities by an Underwriter
or dealer, any event relating to or affecting the Company, or of which the
Company shall be advised in writing by the Underwriters, shall occur, which in
the opinion of the Company or of Underwriters' counsel should be set forth in a
supplement to or an amendment of the Final Supplemented Prospectus in order to
make the Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Supplemented Prospectus in order to comply with the
Securities Act or the Exchange Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of the Preferred Securities
and (ii) at its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Final Supplemented Prospectus which will
supplement or amend the Final Supplemented Prospectus so that, as supplemented
or amended, it will not contain 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 when the Final Supplemented Prospectus is
delivered, not misleading or which will effect any other necessary compliance.
In case any Underwriter is required to deliver a prospectus in connection with
the sale of any Preferred Securities after the expiration of the period
specified in the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus, complying with
Section 10(a) of the Securities Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
Exchange Act and the rules and regulations thereunder; provided, that the
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Company shall not file such documents or amendments without also furnishing
copies thereof prior to such filing to Jones, Day, Reavis & Pogue, and, at the
request of the Representatives, or any of them, the Representatives.
(c) The Offerors will endeavor, in cooperation with the Underwriters,
to qualify the Preferred Securities and, to the extent required or advisable,
the Preferred Securities Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws of such
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states and the other jurisdictions of the United States as the Representatives
may designate; provided, however, that none of the Offerors shall be obligated
-------- -------
to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to file annual reports
or to comply with any other requirements in connection with such qualification
deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the Securities
Act) covering a twelve-month period beginning not later than the first day of
the Company's fiscal quarter next following the "effective date" (as defined in
Rule 158) of the Registration Statement.
(e) The Offerors will use their best efforts to effect the listing of
the Preferred Securities on the New York Stock Exchange; if the Preferred
Securities are exchanged for Junior Subordinated Notes, the Company will use its
best efforts to effect the listing of the Junior Subordinated Notes on any
exchange on which the Preferred Securities are then listed.
(f) During a period of 15 days from the date of this Agreement,
neither the Trust, Funding nor the Company will, without the Representative's
prior written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any preferred securities, any
security convertible into or exchangeable into or exercisable for preferred
securities or junior subordinated notes or any debt securities substantially
similar to the Junior Subordinated Notes or equity securities substantially
similar to the Preferred Securities (except for the Junior Subordinated Notes
and the Preferred Securities issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and in
any event within the time prescribed by Rule 424 under the Securities Act, to
file the Final Supplemented Prospectus with the Commission and to advise the
Representative of such filing and to confirm such advice in writing.
Section 4. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of each
Offeror's obligations under this Agreement, including, but not limited to, the
expenses of (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto (ii) the preparation, issuance
and delivery of the certificate(s) for the Preferred Securities to the
Underwriters, (iii) the fees and disbursements of the Company's, Funding's and
the Trust's counsel and accountants, (iv) the qualification of the Preferred
Securities and, to the extent required or advisable, the Notes Guarantee, the
Preferred Securities Guarantee and the Junior Subordinated Notes, under
securities laws in accordance with the provisions of Section 3(c) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any blue sky survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto and of the Final Supplemented Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the
11
fee of the National Association of Securities Dealers, Inc. in connection with
its review of the offering contemplated by this Agreement, if applicable, (viii)
the fees and expenses of the Debenture Trustee, including the fees and
disbursements of counsel for the Debenture Trustee in connection with the
Indenture and the Junior Subordinated Notes, (ix) the fees and expenses of the
Delaware Trustee, the Property Trustee and the Guarantee Trustee, including the
fees and disbursements of counsel for the Delaware Trustee in connection with
the Trust Agreement and the related Certificate of Trust, (x) the fees and
disbursements of Delaware counsel to the Trust and Funding, (xi) any fees
payable in connection with the rating of the Preferred Securities and Junior
Subordinated Notes, (xii) the fees and expenses incurred with the listing of the
Preferred Securities and, if applicable, the Junior Subordinated Notes on the
New York Stock Exchange, (xiii) the cost and charges of any transfer agent or
registrar and (xiv) the cost of qualifying the Preferred Securities and, if
applicable, the Junior Subordinated Notes with the Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the Underwriters
shall pay all other expenses incurred by them in connection with their offering
of the Preferred Securities, including fees and disbursements of their counsel,
Jones, Day, Reavis & Pogue.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the
Preferred Securities are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction. If filing of the Final
Supplemented Prospectus, or any supplement thereto, is required pursuant to Rule
424, the Final Supplemented Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424.
(b) Orders of the Commission permitting the transactions contemplated
hereby substantially in accordance with the terms and conditions hereof shall be
in full force and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to the
Representatives, are deemed acceptable to the Underwriters and the Company and
all provisions of such order or orders hereafter entered shall be deemed
acceptable to the Underwriters and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an unacceptable
provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of the Vice President
and General Counsel of the Company, substantially in the
form attached hereto as Schedule III.
12
(2) The opinion, dated the Closing Date, of Richards, Layton &
Finger, P.A., Delaware counsel to the Trust and Funding,
substantially in the form attached hereto as Schedule IV.
(3) The opinion, dated the Closing Date, of Pepper Hamilton LLP,
Delaware counsel to the Delaware Trustee under the Trust
Agreement, substantially in the form attached hereto as
Schedule V.
(4) The opinion, dated the Closing Date, of Pepper Hamilton LLP,
counsel to the Property Trustee, the Guarantee Trustee and
the Debenture Trustee, substantially in the form attached
hereto as Schedule VI.
(5) The favorable opinion, dated as of the Closing Date, of
Jones, Day, Reavis & Pogue, counsel for the Underwriters, in
form and substance reasonably acceptable to the
Representatives.
(6) The opinion, dated the Closing Date, of Thelen Reid & Priest
LLP, tax counsel to the Company, substantially in the form
attached hereto as Schedule VII.
(d) In addition,
(1) (i) Neither the Company nor any of its subsidiaries
(including Funding) shall have sustained since the date of
the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior
to the date of this Agreement, any loss or interference with
its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of this Agreement,
and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of
this Agreement there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries (including Funding) or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
shareholders' equity (or equivalent) or results of
operations of the Company and its subsidiaries (including
Funding), otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of this Agreement,
the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner
contemplated in the Prospectus as amended.
13
(2) On the Closing Date and at a time prior to the execution of
this Agreement, the Representatives shall have received from
KPMG Peat Marwick LLP, the independent accountants of the
Company who have certified the consolidated financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, a
letter dated the effective date of the Registration
Statement or the date of the most recent report filed with
the Commission containing consolidated financial statements
and incorporated by reference in the Registration Statement,
if the date of such report is later than such effective
date, a letter dated the date hereof if different than the
effective date, and a letter dated the Closing Date, to the
effect set forth in Schedule VIII hereto, and with respect
to the letter dated the Closing Date, as to such other
matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives.
(3) On the Closing Date, Jones, Day, Reavis & Pogue, counsel for
the Underwriters, shall have been furnished with such
documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and all
proceedings taken by the Offerors, in connection with the
issuance and sale of the Preferred Securities as herein
contemplated shall be satisfactory in form and substance to
the Representatives and Jones, Day, Reavis & Pogue, counsel
for the Underwriters.
(4) On the Closing Date, the Preferred Securities shall have
been approved for listing on the New York Stock Exchange,
subject to notice of issuance.
(5) On the Closing Date, the Representative shall have received
a certificate of a Vice President of the Company certifying
that a Special Event (as defined in the Prospectus) shall
not have occurred and be continuing.
(6) No amendment or supplement to the Registration Statement,
the Prospectus or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14 of
the Exchange Act) shall be unsatisfactory in form to Jones,
Day, Reavis & Pogue.
(7) The Offerors shall have performed their respective
obligations when and as provided under this Agreement.
14
(8) On or after the date of this Agreement, no downgrading shall
have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized
statistical rating organization" as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of
the Company's debt securities or preferred stock.
(9) On or after the date of this Agreement, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or
New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or
war, if the effect of any such event specified in this
clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Preferred Securities on the
terms and in the manner contemplated in the Prospectus.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Offerors at any time prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Sections 4, 7, 9(c) and 10 hereof.
Section 6. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
The obligations of the Offerors shall be subject to the conditions set
forth in the first sentence of Section 5(a) and in Section 5(b). In case such
conditions shall not have been fulfilled, this Agreement may be terminated by
the Company by mailing or delivering written notice thereof to the Underwriters.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in Sections 4, 7, 9(c) and 10 hereof.
Section 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, Exchange Act or otherwise, and to reimburse the
Underwriters and such controlling person or persons, if any, for any reasonable
legal or other expenses incurred by them in connection with investigating or
defending any actions as such expenses are incurred, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or
15
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus, in any amendments or any supplements thereto, or any filings
pursuant to Section 13 or 14 of the Exchange Act which are incorporated therein
by reference, or arise out of or are based upon any omission or alleged omission
to state therein a material fact or necessary to make the statements therein not
misleading; provided, however, that none of the Offerors shall be liable in any
-------- -------
such case to the extent that such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Final Supplemented Prospectus in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Prospectus as amended or
supplemented.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 7(a) hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, Funding, their directors and such of their
officers who have signed the Registration Statement, the Trust and each person,
if any, who controls the Offerors within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act to the same extent and upon
the same terms as the indemnity agreement of the Offerors set forth in Section
7(a) hereof, provided, however, that none of the Underwriters shall be liable in
-------- -------
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use in the
Prospectus as amended or supplemented.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify such
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and the indemnified party
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall 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 shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action
16
or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other from the offering of the Preferred Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Offerors 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 (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Offerors 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 such offering (before
deducting expenses) received by the Offerors 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 Offerors on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Offerors and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Preferred 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations with respect to the Preferred
Securities and not joint.
17
(f) The obligations of the Offerors under this Section 7 shall be in
addition to any liability which the Offerors may otherwise have; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers or Trustees of the Offerors
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
Section 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
(a) If one or more of the Underwriters shall fail on the Closing
Date to purchase the Preferred Securities that it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 36 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 36-hour
period, then the Company shall be entitled to a further period of 36 hours
within which to procure another party or parties satisfactory to the
Representatives to purchase such Defaulted Securities on such terms. If, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Defaulted Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Defaulted Securities, the Representatives or the Company shall have the
right to postpone the 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 as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to promptly file any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary.
(b) If, after giving effect to any arrangements for the purchase of
the Defaulted Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Defaulted Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of the Securities, as the case may
be, to be purchased at the Closing Date, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the number of Securities
which such Underwriter agreed to purchase pursuant to Schedule I hereto, and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities which such Underwriter agreed to
purchase pursuant to such Schedule) of the 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.
18
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of
Securities which remains unpurchased exceeds one-eleventh of the aggregate
number of the Securities to be purchased at the Closing Date, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Guarantor, except for the expenses to be borne
by the Guarantor and the Underwriters as provided in Section 4 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
Section 10. TERMINATION OF AGREEMENT.
If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Offerors shall then be under any liability to any Underwriter with
respect to the Securities except as provided in Sections 4 and 7 hereof; but, if
for any other reason, Securities are not delivered by or on behalf of the Trust
or the Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of Jones, Day, Reavis &
Pogue, counsel to the Underwriters, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Preferred
Securities, but the Offerors shall then be under no further liability to any
Underwriter with respect to such Securities except as provided in Sections 4 and
7 hereof.
Section 11. NOTICES.
In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if sent by mail, telex or facsimile
transmission, if to the Underwriters, to the Representatives c/o: Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Facsimile (___) ___-
____, Attention: __________, Registration, and if to the Trust, 300 Delaware
Avenue, Suite 319, Wilmington, Delaware 19801, Facsimile (___) ___-____,
Attention: __________, and if to the Company, One Progress Plaza, St.
Petersburg, Florida 33701, Facsimile (727) 820-5918, Attention: Treasurer, and
if to Funding, 300 Delaware Avenue, Suite 319, Wilmington, Delaware 19801,
Facsimile (___) ___-____, Attention: ____________.
Section 12. PARTIES.
This Agreement shall inure solely to the benefit of and be binding
upon the Underwriters, the Trust, Funding, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust, Funding and the Company and their
19
respective successors and the controlling persons and officers, directors and
trustees referred to in Section 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Trust, Funding and the Company and their respective
successors, and said controlling persons and officers, directors and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Preferred Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Except as otherwise set forth herein, specified times
of day refer to New York City time.
Section 14. COUNTERPARTS.
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust, Funding and the Company a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters and the Trust, Funding and the
Company in accordance with its terms.
Very truly yours,
FLORIDA PROGRESS CORPORATION
By:_________________________________
Title:______________________________
FLORIDA PROGRESS FUNDING CORPORATION
By:_________________________________
Title:______________________________
20
FPC CAPITAL I
__________________________________________
By: Florida Progress Funding Corporation,
as Depositor
By:__________________________________
Title:_______________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
__________________________________
(Goldman, Sachs & Co.)
SALOMON SMITH BARNEY INC.
__________________________________
(Salomon Smith Barney Inc.)
For themselves and as Representatives of the other Underwriters named in
Schedule I hereto.
21
EXHIBIT A
["BLOOD LETTER" LANGUAGE TO COME]
22
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
TOTAL _________________
SCHEDULE II
Initial public offering price per Preferred Security (and purchase price per
security to be paid by the several Underwriters): $____________________
Compensation per Preferred Security to be paid by the Company to the several
Underwriters in respect of their commitments: $.7875 for Preferred Securities
sold to any single purchaser purchasing 10,000 or more Preferred Securities, and
$.50 for Preferred Securities sold to other purchasers.
SCHEDULE III
[LETTERHEAD OF FLORIDA PROGRESS CORPORATION]
_____, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
I have acted as counsel to Florida Progress Corporation (the
"Company") in connection with (i) the formation of (a) FPC Capital I, a Delaware
statutory business trust (the "Trust"), pursuant to the Amended and Restated
Trust Agreement dated as of __________, 1999 among Florida Progress Funding
Corporation, a Delaware corporation ("Funding") and the trustees named therein
(the "Trust Agreement") and (b) Funding (Funding, along with the Company and the
Trust being hereinafter sometimes referred to as the "Offerors"); (ii) the
Trust's issuance and sale of Cumulative Quarterly Income Preferred Securities,
Series A evidencing approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale of Common
Securities evidencing approximately a 3% undivided interest in the Trust (the
"Common Securities"); (iv) Funding's issuance and sale to the Trust of
$___________ of its ___% Series A Junior Subordinated Deferred Interest Notes
(the "Notes") pursuant to an Indenture dated as of ____________ 1, 1999, among
Funding, the Company and The First National Bank of Chicago, as trustee
(collectively, the "Indenture"); (v) the Agreement as to Expenses and
Liabilities dated as of __________ , 1999, between the Company and the Trust
(the "Agreement as to Expenses and Liabilities"); (vi) its issuance of a
guarantee (the "Preferred Securities Guarantee") of the Preferred Securities
pursuant to a Guarantee Agreement dated as of __________ 1, 1999 (the "Guarantee
Agreement") between the Company and The First National Bank of Chicago, as
trustee; and (vii) its issuance of a guarantee (the "Notes Guarantee") of the
Notes pursuant to the terms of the Indenture. The Preferred Securities are being
sold to you today pursuant to the terms of a Underwriting Agreement dated
__________ 1, 1999 (the "Underwriting Agreement"), among the Company, Funding,
the Trust and the underwriters named in Schedule I thereto (the "Underwriters")
for whom you are acting as Representatives. This opinion is being delivered to
you as Representatives pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, I and members of the
Company's Legal Department have examined the Registration Statement on Form S-3
(Nos. _____________) pertaining to the Preferred Securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Securities
Act") and the prospectus dated ___________, 1999, as supplemented by a
prospectus supplement dated __________, 1999 (the "Prospectus"), which pursuant
to Form S-3 incorporates by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1998, as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, I have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificates
representing the Preferred Securities and the Notes, of which I have examined
specimens), and I have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, I
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that:
1. 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 power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement, the Indenture and the Guarantee Agreement and to issue and deliver
the Preferred Securities Guarantee and the Notes Guarantee. The Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which its ownership or lease of substantial properties
or the conduct of its business requires such qualification and in which the
failure to so qualify and be in good standing would materially adversely affect
its business or financial condition.
2. Funding has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware with
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final Supplemented
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement, the Trust Agreement and the Indenture and to purchase, own and hold
the Common Securities issued by the Trust and to issue the Notes. Funding is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such qualification and in
which the failure to so qualify and be in good standing would materially
adversely affect its business or financial condition.
3. The execution, delivery and performance by the Company and
Funding of the Underwriting Agreement have been duly authorized by all necessary
corporate action, and the Underwriting Agreement has been duly executed and
delivered by the Company and Funding.
III-2
4. All orders, consents or other authorizations or approvals of the
Commission legally required for the issuance and delivery of the Notes, the
Preferred Securities Guarantee and the Notes Guarantee and the issuance and sale
of the Preferred Securities have been obtained; such orders are sufficient for
the issuance and delivery of the Notes, the Common Securities, the Preferred
Securities Guarantee and the Notes Guarantee and the issuance and sale of the
Preferred Securities; the issuance and delivery of the Notes, the Preferred
Securities Guarantee and the Notes Guarantee and the issuance and sale of the
Preferred Securities conform in all material respects with the terms of such
orders; and no other order, consent or other authorization or approval of any
United States federal governmental body (other than in connection or in
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and delivery of the Notes, the Preferred Securities Guarantee and the
Notes Guarantee and the issuance and sale of the Preferred Securities in
accordance with the terms of the Underwriting Agreement.
5. The Indenture has been duly authorized, executed and delivered
by Funding and the Company and, assuming the due authorization, execution and
delivery thereof by the Debenture Trustee, constitutes a valid and legally
binding instrument of each of Funding and the Company, enforceable against each
of Funding and the Company in accordance with its terms, subject to the
qualifications that the enforceability of Funding's and the Company's
obligations under the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and each of the Indenture and the Notes Guarantee conforms as to legal matters
in all material respects to the description thereof in the Prospectus.
6. The Notes have been duly authorized and executed by Funding
and, when authenticated by the Debenture Trustee in the manner provided in the
Indenture and delivered against payment therefor, will constitute valid and
binding obligations of Funding, enforceable against Funding in accordance with
their terms, subject to the qualifications that the enforceability of Funding's
obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Notes conform as to legal matters in all material respects to the
description thereof in the Prospectus.
7. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in accordance with its terms,
subject to the qualifications that the enforceability of the Company's
obligations under the Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Prospectus.
8. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding instrument of the
III-3
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Agreement as to Expenses and Liabilities may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Agreement as to Expenses and Liabilities conforms as
to legal matters in all material respects to the description thereof in the
Prospectus.
9. Each of the Indenture, the Guarantee Agreement and the Trust
Agreement has been duly qualified under the Trust Indenture Act of 1939, as
amended.
10. Neither the Company, Funding nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act"), or is
required to register or take any other action with respect to or under the 1940
Act by reason of the offering and sale of the Preferred Securities.
11. The Trust Agreement has been duly authorized, executed and
delivered by Funding, and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and binding obligation of Funding,
enforceable against Funding in accordance with its terms, subject to the
qualifications that the enforceability of Funding's obligations under the Trust
Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally, and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
12. All of the issued and outstanding Common Securities of the Trust
are directly owned by Funding, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
13. To the best of my knowledge and other than as set forth in the
Prospectus (including the documents incorporated therein by reference), there
are no legal or governmental proceedings pending to which, Funding, the Company
or any of its subsidiaries is a party or of which any property of Funding, the
Company or any of its subsidiaries is the subject which, if determined adversely
to Funding, the Company or such subsidiary, as the case may be, would
individually or in the aggregate have a material adverse effect on the current
or future consolidated financial position, shareholders' equity (or equivalent)
or results of operations of Funding or the Company and its subsidiaries; and to
the best of my knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
14. Neither Funding nor the Company nor any of their subsidiaries is
in violation of its Articles of Incorporation (or equivalent) or By-laws, each
as currently constituted, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound.
15. The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which I express
III-4
no opinion), 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 Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and I have no reason to
believe that any of such documents, when they became effective or were so filed,
as the case may be, contained, in the case of a registration statement which
became effective under the Securities Act, 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, or, in the case of
other documents which were filed under the Securities Act or the Exchange Act
with the Commission, 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 circumstances under which they were made when such documents were so
filed, not misleading.
16. The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made by the
Company prior to the date hereof (other than the financial statements and
related schedules therein, as to which I express no opinion), comply as to form
in all material respects with the requirements of the Securities Act and the
rules and regulations thereunder; although I do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Final Supplemented Prospectus,
except for those statements referred to in the opinions in paragraphs 5,6,7 and
8 above, I have no reason to believe that, as of its effective date, the
Registration Statement (other than the financial statements and related
schedules therein, as to which I express no opinion) 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 or
that, as of its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the date hereof
(other than the financial statements and related schedules therein, as to which
I express no opinion) contained an untrue statement of a material fact or
omitted 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
that, as of the date hereof, either the Registration Statement or the Prospectus
as amended or supplemented or any further amendment or supplement thereto made
by the Company prior to the date hereof (other than the financial statements and
related schedules therein, as to which I express no opinion) contains an untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and I do not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated by
reference or described as required.
I am a member of the State Bar of Florida and do not express any
opinion herein concerning any law other than the law of the State of Florida and
the federal law of the United States.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person without our prior written
consent, except that Jones, Day, Reavis & Pogue may rely
III-5
on this opinion in giving their opinion pursuant to Section 5(c) of the
Underwriting Agreement insofar as such opinion relates to matters of Florida
law.
Yours very truly,
[TO BE SIGNED BY THE VICE PRESIDENT AND
GENERAL COUNSEL OF THE COMPANY]
III-6
SCHEDULE IV
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as special Delaware counsel for Florida Progress Funding
Corporation, a Delaware corporation ("Funding") and FPC Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
This opinion is being furnished to you pursuant to Section 5(c)(2) of the
Underwriting Agreement, dated ______________, 1999 (the "Underwriting
Agreement"), among Florida Progress Corporation, a Florida corporation (the
"Company"), Funding, the Trust, you and the other Underwriters listed in
Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
a. The Certificate of Trust of the Trust, dated March 22, 1999
(the "Original Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on March 22, 1999;
b. The Trust Agreement of the Trust, dated as of March 22, 1999
among Funding and the trustees of the Trust named therein;
c. The Amended and Restated Trust Agreement, dated as of _________,
1999 (including Exhibits C and E thereto) (the "Trust Agreement"), among
Funding, the trustees of the Trust named therein, and the holders, from time to
time, of the undivided beneficial interests in the assets of the Trust;
d. The Underwriting Agreement;
e. The Prospectus, dated __________ __, 1999, as supplemented by a
prospectus supplement dated __________, 1999 (the "Prospectus"), relating to the
__% Cumulative Quarterly
Income Preferred Securities, Series A of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
f. A Certificate of Good Standing for the Trust, dated ___________
__, 1999, obtained from the Secretary of State;
g. A certificate of an officer of Funding, attaching inter alia
copies of Funding's Certificate of Incorporation and By-laws;
h. The Indenture dated as of _________ 1,1999 by and among Funding,
the Company and The First National Bank of Chicago, as trustee (the
"Indenture"), which includes the guarantee of the Notes (as hereinafter defined)
by the Company (the "Notes Guarantee Agreement");
i. A specimen of the Series A __% Junior Subordinated Deferred
Interest Notes (the "Notes") issued pursuant to the Indenture;
j. The Guarantee Agreement, dated as of _____________ 1, 1999 by and
between the Company and The First National Bank of Chicago, as trustee (the
"Guarantee Agreement" and, collectively with the Notes Guarantees, the
"Guarantees"); and
k. A Certificate of Good Standing for Funding dated ____________,
1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (k) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and the Trust Agreement and the Certificate are in
full force and effect and have not been amended, (ii) except to the extent
provided in paragraphs 1 and 2 below, the due organization or due formation or
due creation, as the case may
IV-2
be, and valid existence in good standing of each party to the documents examined
by us under the laws of the jurisdiction governing its organization or formation
or creation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) except to the extent provided in paragraph 8
below, the power and authority of each of the parties to the documents examined
by us to execute and deliver, and to perform its obligations under, such
documents, (v) except to the extent provided in paragraph 8 below, the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a Trust Security is to
be issued by the Trust (collectively, the "Trust Security Holders") of a Trust
Securities Certificate for such Trust Security and the payment for the Trust
Security acquired by it, in accordance with the Trust Agreement and the
Prospectus, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement and the Prospectus. We
have not participated in the preparation of the Prospectus.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
(S)(S) 3801, et seq. (the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Funding has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware and has
due corporate power and authority under the General Corporation Laws of the
State of Delaware to enter into and perform its obligations under the
Underwriting Agreement, the Trust Agreement and the Indenture and to purchase,
own and hold the Common Securities issued by the Trust and to issue the Notes.
3. Under the Business Trust Act and the Trust Agreement, the Trust
has the business trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and to
perform its obligations under, the Underwriting Agreement, (iii) issue and
perform its obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
4. The Trust Securities have been duly authorized by the Trust
Agreement and will be duly and validly issued undivided beneficial interests in
the assets of the Trust. Subject to
IV-3
the qualifications set forth in paragraph 6 below, the Preferred Securities will
be fully paid and nonassessable undivided beneficial interests in the assets of
the Trust. Under the Business Trust Act and the Trust Agreement, the Trust
Securities are not subject to any preemptive or other similar rights.
5. Under the Business Trust Act and the Trust Agreement, the
execution, delivery and performance by the Trust of the Underwriting Agreement
has been duly authorized by all necessary business trust action on the part of
the Trust, and the Underwriting Agreement has been duly executed and delivered
by the Trust.
6. No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is required to be
obtained by the Trust, the Company or Funding solely as a result of (i) the
issuance and sale of the Preferred Securities, (ii) the issuance and delivery of
the Notes and (iii) the issuance and delivery of the Guarantees.
7. The Persons to whom Preferred Securities are to be issued by the
Trust (collectively, the "Preferred Security Holders"), as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
8. The Trust Agreement constitutes a valid and binding obligation of
the Trustees, and is enforceable against the Trustees, in accordance with its
terms.
9. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement
and the Trust Agreement, the consummation by the Trust of the transactions
contemplated by the Underwriting Agreement and the Trust Agreement and
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate or the Trust Agreement, (ii) any applicable
Delaware law or Delaware administrative regulation, (iii) any contract,
indenture, mortgage, loan agreement, deed of trust, note, lease or any other
agreement or instrument known to us to which the Trust is a party or by which it
may be bound or to which any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or otherwise) of the
Trust) or (iv) any judgment, order or decree known to us of any government,
governmental instrumentality, or court, domestic or foreign, or any regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trust or any of its properties; and to the best of our knowledge the
Trust is not a party to or otherwise bound by any agreement other than those
which are described in the Prospectus.
10. The Preferred Securities conform as to legal matters in all
material respects to the description thereof in the Prospectus.
IV-4
The opinion expressed in paragraph 8 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Underwriting Agreement. We consent to the law
firm of Jones, Day, Reavis & Pogue and the Vice President and General Counsel of
the Company relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them pursuant to the Underwriting
Agreement. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
[TO BE SIGNED BY RICHARDS, LAYTON & FINGER,
P.A.]
IV-5
SCHEDULE V
[LETTERHEAD OF PEPPER HAMILTON LLP]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.,
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as special Delaware counsel to First Chicago Delaware
Inc., a Delaware banking corporation ("Trustee"), solely for purposes of this
opinion in connection with FPC Capital Trust I, a business trust existing under
the laws of the State of Delaware (the "Trust") pursuant to the Trust Agreement,
dated as of March 22, 1999, as amended and restated by the Amended and
Restated Trust Agreement, dated as of _____________ 1, 1999 among Trustee,
Florida Progress Funding Corporation ("Funding"), the other trustees named
therein and the holders from time to time of the undivided beneficial interests
in the assets of the Trust (collectively, the "Trust Agreement"). This opinion
is being delivered to you pursuant to Section 5(c)(3) of the Underwriting
Agreement, dated ___________, 1999 (the "Underwriting Agreement"), among you and
the several Underwriters named in Schedule I thereto, Florida Progress
Corporation, Funding and the Trust, pursuant to which the $_______________ ___%
Cumulative Quarterly Income Preferred Securities, Series A of the Trust will be
sold. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement. We
have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of Trustee as we have deemed
necessary or appropriate for the purposes of this opinion. Moreover, as to
certain facts material to the opinions expressed herein, we have relied upon the
representations and warranties contained in the documents referred to in this
paragraph.
Based upon the foregoing and upon an examination of such questions of
law as we have deemed necessary or appropriate, and subject to the assumptions,
exceptions and qualifications set forth below, we advise you that, in our
opinion:
1. Trustee is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware and has the power and authority to execute, deliver and perform its
obligations under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by Trustee and constitutes a legal, valid and binding obligation of
Trustee, enforceable against Trustee in accordance with its terms.
3. The execution and delivery of, and performance of the terms of,
the Trust Agreement by Trustee, does not conflict with or constitute a breach
of, or default under, the charter or by-laws of Trustee.
4. No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body having
jurisdiction in the premises is required under Delaware law for the execution,
delivery or performance by Trustee of the Trust Agreement.
The foregoing opinions are subject to the following exceptions,
qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and we do
not hold ourselves out as being experts on the law of any other jurisdiction.
The foregoing opinions are limited to the laws of the State of Delaware and the
federal laws of the United States of America governing the banking and trust
powers of Trustee (except that we express no opinion with respect to (i) state
securities or blue sky laws and (ii) federal securities laws, including, without
limitation, the Securities Act of 1933, as amended the Securities Exchange Act
of 1934, as amended, the Trust Indenture Act of 1939, as amended, and the
Investment Company Act of 1940, as amended) and we have not considered and
express no opinion on the laws, rules and regulations of any other jurisdiction.
(B) The foregoing opinions regarding enforceability are subject to
(i) applicable bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent transfer or conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of equity
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and delivery by
each of the parties thereto, other than Trustee, of the Trust Agreement, and
that each of such parties has the full power, authority and legal right to
execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of the
Delaware Trustee) on documents examined by us are genuine, that all documents
submitted to us as originals are authentic, and that all documents submitted to
us as copies or specimens conform with the originals, which facts we have not
independently verified.
V-2
This opinion may be relied upon by you in connection with the matters
set forth herein, and without our prior written consent, may not be furnished or
quoted to, or relied upon by, any other person or entity for any purpose.
Very truly yours,
[TO BE SIGNED BY PEPPER HAMILTON LLP]
V-3
SCHEDULE VI
[LETTERHEAD OF PEPPER HAMILTON LLP]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as counsel to The First National Bank of Chicago (the
"Bank") in connection with (a) the Junior Subordinated Indenture, dated as of
____________ 1, 1999 (the "Indenture"), among Florida Progress Corporation (the
"Company"), Florida Progress Funding Corporation ("Funding") and the Bank, as
Trustee, (b) the Guarantee Agreement dated as of ___________ 1, 1999 (the
"Guarantee Agreement") between the Company and the Bank, as Trustee, and (c) the
Amended and Restated Trust Agreement, dated as of _________ 1, 1999 (the "Trust
Agreement") among Funding, the Bank, as Property Trustee, First Chicago Delaware
Inc., as Delaware Trustee, and Progress Rail Services Corporation, as
Administrative Trustee.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture, the Trust Agreement, the Guarantee
Agreement and certain resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
1. The Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York.
2. The Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered the Indenture, the Trust
Agreement and the Guarantee Agreement, and, insofar as the laws governing the
trust powers of the Bank are concerned and assuming due authorization, execution
and delivery thereof by the other parties thereto, each of the Indenture, the
Trust Agreement and the Guarantee Agreement constitutes a legal, valid and
binding agreement of the Bank, enforceable against the Bank in accordance with
its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. The execution, delivery and performance by the Bank of the
Indenture, the Trust Agreement and the Guarantee Agreement do not conflict with
or constitute a breach of the charter or bylaws of the Bank.
4. No approval, authorization or other action by, or filing with,
any governmental authority of the United States of America or the State of New
York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture, the
Trust Agreement or the Guarantee Agreement or the performance by the Bank of its
duties thereunder, except such as have been obtained, taken or made.
We are admitted to practice in the State of New York, and we express
no opinion as to matters governed by any laws other than the laws of the State
of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
[TO BE SIGNED BY PEPPER HAMILTON LLP]
VI-2
SCHEDULE VII
[LETTERHEAD OF THELEN REID & PRIEST LLP]
______________, 1999
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
as Representatives
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FPC CAPITAL I
____ % CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
Ladies and Gentlemen:
Reference is made to the prospectus which constitutes part of the
registration statement on Form S-3 ("Registration Statement"), to be filed by
Florida Progress Corporation, Florida Progress Funding Corporation, FPC Capital
I, and FPC Capital II with the Securities and Exchange Commission on or about
the date hereof pursuant to the Securities Act of 1933, as amended, as
supplemented by a Prospectus Supplement dated on or about the date hereof (the
"Prospectus") for the registration of, among other things, Cumulative Quarterly
Income Preferred Securities ("QUIPS") of FPC Capital I.
We are of the opinion that the statements set forth under the caption
"United States Federal Income Tax Considerations" in the Prospectus constitute
an accurate description of the material United States federal income tax
considerations that may be relevant to the prospective purchasers of the QUIPS.
This opinion is limited to the facts and law at the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us in the Prospectus under the
caption "United States Federal Income Tax Considerations."
Very truly yours,
[TO BE SIGNED BY THELEN REID & PRIEST LLP]
SCHEDULE VIII
Pursuant to Section 5(d)(2) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
1. They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act
and the applicable published rules and regulations thereunder;
2. In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the Representatives;
3. They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q and Form 8-K
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations;
4. The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
5. They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
6. On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q or Form
8-K incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus or included in the Company's Quarterly Reports on Form
10-Q or Form 8-K incorporated by reference in the Prospectus, for them
to be in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K or Form 8-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
VIII-2
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the published rules
and regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net assets or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated revenues or operating income or the total consolidated
net income after preferred dividends or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(G) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
VIII-3