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EXHIBIT 1(b)
FLORIDA POWER CORPORATION
[Title of Debt Security]
UNDERWRITING AGREEMENT
___________, ____
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Florida Power Corporation (the "Company") hereby
confirms its agreement with each of the several Underwriters hereinafter named
as follows:
1. Underwriters and Representative. The term "Underwriters" as
used herein shall be deemed to mean the firm or corporation or the several firms
or corporations named in Schedule II hereto and any underwriter substituted as
provided in paragraph 6, and the term "Underwriter" shall be deemed to mean one
of such Underwriters. If the firm or firms listed in Schedule I hereto (the
"Representative") are the same as the firm or firms listed in Schedule II
hereto, then the terms "Underwriters" and "Representative," as used herein,
shall each be deemed to refer to such firm or firms. The Representative
represents that it has been authorized by the Underwriters to execute this
Agreement on their behalf and to act for them in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint. If more
than one firm is named in Schedule I hereto, any action under or in respect of
this Agreement may be taken by such firms jointly as the Representative or by
one of the firms acting on behalf of the Representative, and such action will be
binding upon all the Underwriters.
2. Description of Securities. The Company proposes to issue and
sell its debt securities of the designation, with the terms and in the amount
specified in Schedule I hereto (the "Securities") in one or more new series
under a governing indenture (the "Indenture") between the Company and
______________________, as trustee (the "Trustee"), in substantially the form
heretofore delivered to the Representative.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form
S-3 (No. 333-_______) (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), for the
registration of up to an aggregate of $____________ principal amount of
the Company's First Mortgage Bonds and Debt Securities (collectively,
the "Registered Securities") in unallocated amounts, as each is defined
in the Registration Statement. The Registration Statement has been
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declared effective by the Commission, and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). As of the date hereof, the Company has sold an aggregate of
$_______________ principal amount of Registered Securities. The term
"Registration Statement" shall be deemed to include all amendments
thereto to the date hereof and all documents incorporated by reference
therein (the "Incorporated Documents"). The prospectus included in the
Registration Statement, as it is to be supplemented by a prospectus
supplement, dated on or about the date hereof, substantially in the
form delivered to the Representative prior to the execution hereof,
relating to the Securities (the "Prospectus Supplement") and all prior
amendments or supplements thereto (other than amendments or supplements
relating to securities of the Company other than the Securities),
including the Incorporated Documents, is hereinafter referred to as the
"Prospectus." Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), deemed to be incorporated therein after the date
hereof and prior to the termination of the offering of the Securities
by the Underwriters; and any references herein to the terms
"Registration Statement" or "Prospectus" at a date after the filing of
the Prospectus Supplement shall be deemed to refer to the Registration
Statement or the Prospectus, as the case may be, as each may be amended
or supplemented prior to such date.
(b) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus which shall not have
previously been furnished to the Representative or of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object in writing and which has not
been approved by the Underwriter(s) or their counsel acting on behalf
of the Underwriters.
(c) The Registration Statement, at the time and date it
was declared effective by the Commission, complied, and the
Registration Statement, the Prospectus and the Indenture, at the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424")
and at the Closing Date, will comply, in all material respects, with
the applicable provisions of the Securities Act and the 1939 Act and
the applicable rules and regulations of the Commission thereunder; the
Registration Statement, at the time and date it was declared effective
by the Commission, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, at the date it is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 and at the Closing Date, will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties in
this subparagraph (c) shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished herein or
in writing to the Company by the Representative or by or on behalf of
any Underwriter through the Representative expressly for use in the
Prospectus or to any statements in or omissions from the Statement of
Eligibility (Form T-1) of the Trustee under any Indenture. The
Incorporated Documents, when they were filed with the Commission,
complied in all material respects with the applicable requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder; and any documents so filed and incorporated by reference
subsequent to the date hereof and prior to the termination of the
offering of the Securities by the Underwriters will, when they are
filed with
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the Commission, comply in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder; and, when read together with the Registration Statement and
the Prospectus, none of such documents included or includes or will
include any untrue statement of a material fact or omitted or omits or
will omit to state any 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.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida; has corporate power and authority to own, lease and operate
its properties and to conduct its business as contemplated under this
Agreement and the other agreements to which it is a party; and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on the business, properties or financial
condition of the Company and its subsidiaries considered as a whole.
(e) The historical financial statements incorporated by
reference in the Registration Statement present fairly the financial
condition and operations of the Company at the respective dates or for
the respective periods to which they apply; such financial statements
have been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except that the quarterly financial statements incorporated
by reference from any Quarterly Reports on Form 10-Q contain condensed
footnotes prepared in accordance with applicable Exchange Act rules and
regulations; and any accounting firms that have audited any of the
financial statements are independent public or independent certified
public accountants as required by the Securities Act or the Exchange
Act and the rules and regulations of the Commission thereunder.
(f) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and
Prospectus, and prior to the Closing Date, there has not been any
material adverse change in the business, properties or financial
condition of the Company and its subsidiaries considered as a whole;
and since such dates and prior to the Closing Date, there has not been
any material transaction entered into by the Company other than
transactions contemplated by the Registration Statement and Prospectus
or transactions arising in the ordinary course of business. The Company
has no material contingent obligation that is not disclosed in the
Registration Statement and Prospectus.
(g) The Company has full power and authority to execute,
deliver and perform its obligations under this Agreement. The execution
and delivery of this Agreement, the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof on the part
of the Company to be fulfilled have been duly authorized by all
necessary corporate action of the Company in accordance with the
provisions of its articles of incorporation, as amended (the
"Charter"), by-laws and applicable law.
(h) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, the Charter, the Company's by-laws, applicable law or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its subsidiaries is
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now a party or any judgment, order, writ or decree of any government or
governmental authority or agency or court having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties
or operations.
(i) The summaries of the terms of the Securities
contained in the Registration Statement and Prospectus fairly describe
the provisions thereof required to be described by the registration
statement form.
(j) The Company does not have any significant
subsidiaries as defined in Rule 1-02 of Regulation S-X promulgated
under the Securities Act.
(k) The Indenture (A) has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity and except for the effect on
enforceability of federal or state law limiting, delaying or
prohibiting the making of payments outside the United States); and (B)
conforms in all material respects to the description thereof in the
Prospectus.
(l) The Securities have been duly authorized by the
Company and, when issued and authenticated in the manner provided for
in the Indenture and delivered against payment of the required
consideration therefor, will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture
enforceable against the Company in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity
and except for the effect on enforceability of federal or state law
limiting, delaying or prohibiting the making of payments outside the
United States). Such Securities rank and will rank on a parity with all
unsecured and unsubordinated indebtedness of the Company that is
outstanding on the date hereof.
(m) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(n) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings against
or affecting the Company or any of its subsidiaries or properties that
are likely in the aggregate to result in any material adverse change in
the business, properties or financial condition of the Company and its
subsidiaries considered as a whole, or that are likely in the aggregate
to materially and adversely affect the Indenture, the Securities or the
consummation of this Agreement or the transactions contemplated herein
or therein.
(o) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due
execution, delivery or performance of the Indenture by the Company,
except such as have already been made or obtained or as may be required
under the
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Securities Act or state securities laws and except for the
qualification of the Indenture under the 1939 Act.
4. Purchase and Sale. On the basis of the representations,
warranties and covenants herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule II hereto at the purchase price set forth in Schedule I hereto.
5. Reoffering by Underwriters. The Underwriters agree to make
promptly a bona fide public offering of the Securities to the public for sale as
set forth in the Prospectus, subject, however, to the terms and conditions of
this Agreement.
6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Securities shall be made at the
place, time and date specified in Schedule I hereto against delivery of
the Securities at the office of ________________ [name and address of
the Trustee], or such other place, time and date as the Representative
and the Company may agree. The hour and date of such delivery and
payment are herein called the "Closing Date." Payment for the
Securities shall be by wire transfer of immediately available funds
against delivery to The Depository Trust Company or to
_________________, as custodian for The Depository Trust Company, in
fully registered global form registered in the name of CEDE & Co., for
the respective accounts specified by the Representative not later than
the close of business on the business day prior to the Closing Date or
such other date and time not later than the Closing Date as agreed by
The Depository Trust Company or _____________________[the Trustee]. For
the purpose of expediting the checking of the certificates by the
Representative, the Company agrees to make the Securities available to
the Representative not later than 10:00 A.M., on the last full business
day prior to the Closing Date at said office of ________________ [the
Trustee].
(b) If one or more of the Underwriters shall, for any
reason permitted hereunder, cancel its obligation to purchase hereunder
and to take up and pay for the principal amount of the Securities to be
purchased by such one or more Underwriters, the Company shall
immediately notify the Representative, and the remaining Underwriters
shall have the right, within 24 hours of receipt of such notice, either
to take up and pay for (in such proportion as may be agreed upon among
them) or to substitute another Underwriter or Underwriters,
satisfactory to the Company, to take up and pay for the principal
amount of the Securities that such one or more Underwriters did not
purchase. If one or more Underwriters shall, for any reason other than
a reason permitted hereunder, fail to take up and pay for the principal
amount of the Securities to be purchased by such one or more
Underwriters, the Company shall immediately notify the Representative,
and the remaining Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the Securities
set forth opposite their respective names in Schedule II hereto) the
principal amount of the Securities that such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal amount
thereof equal to, in the case of each such remaining Underwriter, 10%
of the principal amount of the Securities set forth opposite the name
of such remaining Underwriter in said Schedule II, and such remaining
Underwriters shall have the right, within 24 hours of receipt of such
notice, either to take up and pay for (in such proportion as may be
agreed upon among them), or to substitute another Underwriter or
Underwriters, satisfactory to the Company, to take up and pay for the
remaining
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principal amount of the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase. If any unpurchased
Securities still remain, then the Company or the Representative shall
be entitled to an additional period of 24 hours within which to procure
another party or parties, members of the National Association of
Securities Dealers, Inc. (or if not members of such Association, who
are not eligible for membership in said Association and who agree (i)
to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein
and (ii) in making sales to comply with said Association's Rules of
Fair Practice) and satisfactory to the Company, to purchase or agree to
purchase such unpurchased Securities on the terms herein set forth. In
any such case, either the Representative or the Company shall have the
right to postpone the Closing Date for a period not to exceed three
full business days from the date agreed upon in accordance with this
paragraph 6, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may
be effected. If (i) neither the non-defaulting Underwriters nor the
Company has arranged for the purchase of such unpurchased Securities by
another party or parties as above provided and (ii) the Company and the
non-defaulting Underwriters have not mutually agreed to offer and sell
the Securities other than the unpurchased Securities, then this
Agreement shall terminate without any liability on the part of the
Company or any Underwriter (other than an Underwriter that shall have
failed or refused, in accordance with the terms hereof, to purchase and
pay for the principal amount of the Securities that such Underwriter
has agreed to purchase as provided in paragraph 4 hereof), except as
otherwise provided in paragraph 7 and paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) As soon as reasonably possible after the execution
and delivery of this Agreement, the Company will file the Prospectus
with the Commission pursuant to Rule 424 setting forth, among other
things, the necessary information with respect to the terms of offering
of the Securities. The Company will promptly deliver to the
Representative and to counsel for the Underwriters, to the extent not
previously delivered, one fully executed copy or one conformed copy,
certified by an officer of the Company, of the Registration Statement,
as originally filed, and of all amendments thereto, heretofore or
hereafter made (other than those relating solely to securities other
than the Securities), including any post-effective amendment (in each
case including all exhibits filed therewith and all documents
incorporated therein not previously furnished to the Representative),
including signed copies of each consent and certificate included
therein or filed as an exhibit thereto, and will deliver to the
Representative for distribution to the Underwriters as many conformed
copies of the foregoing (excluding the exhibits, but including all
documents incorporated therein) as the Representative may reasonably
request. The Company will also send to the Underwriters as soon as
practicable after the date of this Agreement and thereafter from time
to time as many copies of the Prospectus as the Representative may
reasonably request for the purposes required by the Securities Act.
(b) During such period (not exceeding nine months) after
the commencement of the offering of the Securities as the Underwriters
may be required by law to deliver a Prospectus, if any event relating
to or affecting the Company, or of which the Company shall be advised
in writing by the Representative shall occur, which in the opinion of
the Company or the Representative should be set forth in a supplement
to or an amendment of the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is delivered
to a purchaser, or if it is necessary to amend the Prospectus to comply
with the Securities Act, the Company will forthwith at its expense
prepare and furnish to the Underwriters and dealers
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named by the Representative a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the
Prospectus that will supplement or amend the Prospectus so that as
supplemented or amended it will comply with the Securities Act and 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 Prospectus is delivered to a
purchaser, not misleading. In case any Underwriter is required to
deliver a Prospectus after the expiration of nine months after the
commencement of the offering of the Securities, the Company, upon the
request of the Representative, will furnish to the Representative, at
the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Prospectus, complying with Section 10(a) of the Securities Act.
(c) The Company will make generally available to its
security holders, as soon as reasonably practicable, but in any event
not later than 16 months after the end of the fiscal quarter in which
the filing of the Prospectus pursuant to Rule 424 occurs, an earning
statement (in form complying with the provisions of Section 11(a) of
the Securities Act, which need not be certified by independent public
accountants) covering a period of twelve months beginning not later
than the first day of the Company's fiscal quarter next following the
filing of the Prospectus pursuant to Rule 424.
(d) The Company will use its best efforts promptly to do
and perform all things to be done and performed by it hereunder prior
to the Closing Date and to satisfy all conditions precedent to the
delivery by it of the Securities.
(e) The Company will advise the Representative promptly
of the filing of the Prospectus pursuant to Rule 424 and of any
amendment or supplement to the Prospectus or Registration Statement or
of official notice of institution of proceedings for, or the entry of,
a stop order suspending the effectiveness of the Registration Statement
and, if such a stop order should be entered, use its best efforts to
obtain the prompt removal thereof.
(f) The Company will use its best efforts to qualify the
Securities for offer and sale under the Blue Sky or legal investment
laws of such jurisdictions as the Representative may designate, and
will file and make in each year such statements or reports as are or
may be reasonably required by the laws of such jurisdictions; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or dealer in securities, or to file any general consents to
service of process, under the laws of any jurisdiction.
8. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and the printing of
this Agreement, (ii) the delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel and accountants, (iv) the
expenses in connection with the qualification of the Securities under securities
laws in accordance with the provisions of paragraph 7(f), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith, and in connection with the preparation of the Blue Sky Survey and any
Legality Memorandum, such fees and disbursements not to exceed $7,500, (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement and all amendments thereto, of the preliminary prospectuses, and of
the Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey and Legality
Memorandum, and (vii) the preparation and execution by the Company of the
Indenture; and the Company will pay all taxes, if any
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(but not including any transfer taxes), on the issue of the Securities. The fees
and disbursements of Underwriters' counsel shall be paid by the Underwriters
(subject, however, to the provisions of this paragraph 8 requiring payment by
the Company of fees and expenses not to exceed $7,500); provided, however, that
if this Agreement is terminated in accordance with the provisions of paragraph
9, 10 or 12, the Company shall reimburse the Representative for the account of
the Underwriters for the fees and disbursements of Underwriters' counsel. The
Company shall not be required to pay any amount for any expenses of the
Representative or of any other of the Underwriters except as provided in
paragraph 7 and in this paragraph 8. The Company shall not in any event be
liable to any of the Underwriters for damages on account of the loss of
anticipated profit.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company as of the date hereof and the Closing Date, to the performance by the
Company of its obligations to be performed hereunder prior to the Closing Date,
and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or, to the
Company's knowledge, threatened by, the Commission on the Closing Date;
and the Representative shall have received, prior to payment for the
Securities, a certificate dated the Closing Date and signed by the
Chairman, President or a Vice President of the Company to the effect
that no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) At the time of execution of this Agreement, or such
later date as shall have been consented to by the Representative, there
shall have been issued, and on the Closing Date there shall be in full
force and effect, an order of the Florida Public Service Commission
authorizing the issuance and sale of the Securities, which shall not
contain any provision unacceptable to the Representative by reason of
its being materially adverse to the Company (it being understood that
no such order in effect on the date of this Agreement and heretofore
furnished to the Representative or counsel for the Underwriters
contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall receive
favorable opinions from: (1) Hunton & Williams, counsel to the Company,
which opinion shall be satisfactory in form and substance to counsel
for the Underwriters, and (2) Pillsbury Winthrop LLP, counsel for the
Underwriters, in each of which opinions (except as to subdivision (vi)
(as to documents incorporated by reference, at the time they were filed
with the Commission) of this subparagraph (c), as to which Pillsbury
Winthrop LLP need express no opinion) said counsel may rely as to all
matters of Florida law upon the opinion of R. Alexander Glenn,
Associate General Counsel of the Company, to the effect that:
(i) the Indenture has been duly and validly
authorized by all necessary corporate action, has been duly
and validly executed and delivered by the Company, and is a
valid and binding obligation of the Company enforceable in
accordance with its terms, except as limited by bankruptcy,
insolvency or other laws generally affecting the rights of
creditors, and by general equitable principles and any implied
covenant of good faith and fair dealings; provided, however,
that certain remedies, waivers and other provisions of the
Indenture may not be enforceable, but such unenforceability
will not render the Indenture invalid as a whole or affect the
judicial enforcement of the
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obligation of the Company to repay the principal, together
with the interest thereon as provided in the Securities;
(ii) the Indenture has been duly qualified under
the 1939 Act;
(iii) assuming authentication by the Trustee in
accordance with the Indenture and delivery to and payment for
the Securities by the Underwriters, as provided in this
Agreement, the Securities have been duly and validly
authorized, executed and delivered and are legal, valid and
binding obligations of the Company enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency
or other laws generally affecting the rights of creditors, and
by general equitable principles and any implied covenant of
good faith and fair dealings, and are entitled to the benefits
of the Indenture and will rank on a parity with all unsecured
and unsubordinated indebtedness of the Company outstanding on
the date hereof;
(iv) the statements made in the Prospectus under
the caption "Description of Debt Securities" and in the
Prospectus Supplement under the caption "Description of the
Notes," insofar as they purport to constitute summaries of the
documents referred to therein, are correct in all material
respects;
(v) this Agreement has been duly and validly
authorized, executed and delivered by the Company;
(vi) the Registration Statement, at the time and
date it was declared effective by the Commission, and the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 (except as to
the financial statements and other financial and statistical
data constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), complied as
to form in all material respects with the requirements of the
Securities Act and the 1939 Act and the applicable
instructions, rules and regulations of the Commission
thereunder; the documents or portions thereof filed with the
Commission pursuant to the Exchange Act and deemed to be
incorporated by reference in the Registration Statement and
the Prospectus pursuant to Item 12 of Form S-3 (except as to
financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), at the time
they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange
Act and the applicable instructions, rules and regulations of
the Commission thereunder; the Registration Statement has
become effective under the Securities Act and, to the best of
the knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of
the Securities Act; and
(vii) nothing has come to the attention of said
counsel that would lead them to believe that the Registration
Statement, at the time and date it was declared effective by
the Commission, 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 the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424 or at the Closing Date, included or includes an
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untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except as to financial
statements and other financial and statistical data
constituting a part of the Registration Statement or the
Prospectus or incorporated by reference therein, upon which
such opinions need not pass).
(d) At the Closing Date, the Representative shall receive
from R. Alexander Glenn, Associate General Counsel of Florida Power,
counsel to the Company, a favorable opinion in form and substance
satisfactory to counsel for the Underwriters, to the same effect with
respect to the matters enumerated in subdivisions (i) through (v) and
subdivision (vii) of subparagraph (c) of this paragraph 9 as the
opinions required by said subparagraph (c), and to the further effect
that:
(i) the Company is a validly organized and
existing corporation under the laws of the State of Florida;
(ii) the Company is duly authorized by its
Charter to conduct the business that it is now conducting as
set forth in the Prospectus;
(iii) the Company is an electrical utility engaged
in the business of generating, transmitting, distributing and
selling electric power to the general public in the State of
Florida;
(iv) the Company has valid and subsisting
franchises, licenses and permits adequate for the conduct of
its business;
(v) the issuance and sale of the Securities have
been duly authorized by all necessary corporate action on the
part of the Company;
(vi) an order has been entered by the Florida
Public Service Commission authorizing the issuance and sale of
the Securities; to the best of the knowledge of said counsel,
said order is still in force and effect; and no further filing
with, approval, authorization, consent or other order of, any
public board or body (except such as have been obtained under
the Securities Act and as may be required under the state
securities or Blue Sky laws of any jurisdiction) is legally
required for the consummation of the transactions contemplated
in this Agreement.
(vii) except as described in or contemplated by
the Prospectus, there are no pending actions, suits or
proceedings against the Company or any of its subsidiaries or
properties that are likely, in the aggregate, to result in any
material adverse change in the business, properties or
financial condition of the Company and its subsidiaries
considered as a whole or that are likely, in the aggregate, to
materially and adversely affect the consummation of this
Agreement or the transactions contemplated herein; and
(viii) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Charter, the Company's
by-laws, applicable law or any indenture, mortgage, deed of
trust or other agreement or
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instrument to which the Company is now a party or any
judgment, order, writ or decree of any government or
governmental authority or agency or court having jurisdiction
over the Company or any of its subsidiaries or any of their
assets, properties or operations.
In said opinion, such counsel may rely as to all matters of
New York law on the opinion of Hunton & Williams
(e) At the Closing Date, the Representative shall have
received from each of KPMG LLP and Deloitte & Touche LLP a letter,
dated the Closing Date, confirming that they are independent certified
public accountants within the meaning of the Securities Act and the
Exchange Act, and of the applicable published rules and regulations
thereunder, and stating in effect: (i) with respect to the letter from
KPMG LLP, that in their opinion, the audited financial statements
incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act or the Exchange Act, as applicable,
and of the published rules and regulations thereunder; (ii) with
respect to the letter from Deloitte & Touche LLP, that based on the
performance of the procedures specified by the American Institute of
Certified Public Accountants for review of interim financial
information as described in Statement on Auditing Standards ("SAS") No.
71, Interim Financial Information, on the unaudited financial
statements incorporated by reference in the Registration Statement,
inquiries of officials of the Company responsible for financial and
accounting matters and reading the minutes of meetings of the Board of
Directors, of the Executive Committee of the Board of Directors and of
the shareholders, nothing came to their attention that caused them to
believe that (A) the unaudited financial statements incorporated by
reference in the Registration Statement do not 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 published
rules and regulations thereunder or any material modifications should
be made for them to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
most recent audited financial statements incorporated by reference in
the Registration Statement; or (B) at the date of the latest available
interim balance sheet read by them and at a subsequent date not more
than three business days prior to the date of the letter, there was any
change in the capital stock or long-term debt of the Company, or at the
date of the latest available interim balance sheet read by them, there
was any decrease in net assets as compared with the amount shown on the
most recent balance sheet incorporated by reference in the Registration
Statement, except for changes or decreases that the Registration
Statement discloses have occurred or may occur, for declarations of
dividends or for changes or decreases that are described in the letter;
and (iii) from both KPMG LLP and Deloitte & Touche LLP, covering such
other matters as the Representative shall reasonably request.
(f) At the Closing Date, the Representative shall receive
a certificate of the Chairman, President or a Vice President of the
Company, dated the Closing Date, to the effect that the representations
and warranties of the Company in this Agreement are true and correct as
of the Closing Date.
(g) All legal proceedings taken in connection with the
sale and delivery of the Securities shall have been satisfactory in
form and substance to counsel for the Underwriters, and the Company, as
of the Closing Date, shall be in compliance with any governing order of
the Florida Public Service Commission, except where the failure to
comply with such order would not be material to the offering or
validity of the Securities.
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In case any of the conditions specified above in this paragraph 9 shall
not have been fulfilled or waived by 2:00 P.M. on the Closing Date, this
Agreement may be terminated by the Representative by delivering written notice
thereof to the Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in paragraphs 7 and 8.
10. Conditions of the Company's Obligations. The obligations of
the Company to deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date, and no
proceedings for that purpose shall be pending before or threatened by
the Commission on the Closing Date.
(b) Prior to 12:00 Noon, New York time, on the day
following the date of this Agreement, or such later date as shall have
been consented to by the Company, there shall have been issued and on
the Closing Date there shall be in full force and effect an order of
the Florida Public Service Commission authorizing the issuance and sale
by the Company of the Securities, which shall not contain any provision
unacceptable to the Company by reason of its being materially adverse
to the Company (it being understood that the order in effect as of the
date of this Agreement contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not
have been fulfilled at the Closing Date, this Agreement may be terminated by the
Company by mailing or delivering written notice thereof to the Representative.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in paragraphs 7 and 8.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, each officer and director of each Underwriter and
each person who controls any Underwriter within the meaning of Section
15 of the Securities 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 or under any other statute or common
law and to reimburse each such Underwriter, each such officer and
director, and each such controlling person for any legal or other
expenses (including to the extent hereinafter provided, reasonable
counsel fees) incurred by them, when and as incurred, in connection
with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus, or in the Registration Statement or
Prospectus as amended or supplemented (if any amendments or supplements
thereto shall have been furnished), or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the indemnity agreement contained in this paragraph 11
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of or based upon any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished herein or in writing to the
Company by any Underwriter through the Representative expressly for use
in the Registration Statement, any preliminary prospectus or the
Prospectus, or any amendment or supplement to any thereof, or
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arising out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the Statement
of Eligibility under the 1939 Act (Form T-1) of the Trustee under the
Indenture, and provided, further, that the indemnity agreement
contained in this paragraph 11 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Securities to any person if a copy of the
Prospectus (excluding documents incorporated by reference therein)
shall not have been given or sent to such person by or on behalf of
such Underwriter with or prior to the written confirmation of the sale
involved, unless such Prospectus failed to correct the omission or
misstatement. The indemnity agreement of the Company contained in this
paragraph 11 and the representations and warranties of the Company
contained in paragraph 3 hereof shall remain operative and in full
force and effect regardless of any investigation made by or on behalf
of any Underwriter, and such officer and director or any such
controlling person and shall survive the delivery of the Securities.
The Underwriters agree to notify promptly the Company, and each other
Underwriter, of the commencement of any litigation or proceedings
against them or any such officer or director or any of them, or any
such controlling person, in connection with the sale of the Securities.
(b) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, its officers and directors,
and each person who controls the Company within the meaning of Section
15 of the Securities 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 or under any other statute or
common law, and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them, when and as incurred, in connection
with investigating any such losses, claims, damages, or liabilities, or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus as amended or supplemented (if any
amendments or supplements thereto shall have been furnished), or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon and
in conformity with information furnished herein or in writing to the
Company by such Underwriter or through the Representative on behalf of
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement
to any thereof. The indemnity agreement of all the respective
Underwriters contained in this paragraph 11 shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Company or any other Underwriter, or any such officer or
director or any such controlling person, and shall survive the delivery
of the Securities. The Company agrees promptly to notify the
Representative of the commencement of any litigation or proceedings
against the Company or any of its officers or directors, or any such
controlling person, in connection with the sale of the Securities.
(c) The Company and each of the Underwriters agree that,
upon the receipt of notice of the commencement of any action against
it, its officers or directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, it will promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder. The Company and each of the
Underwriters agree that the notification required by the preceding
sentence shall be a material term of this Agreement. The
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omission so to notify such indemnifying party or parties of any such
action shall relieve such indemnifying party or parties from any
liability that it or they may have to the indemnified party on account
of any indemnity agreement contained herein if such indemnifying party
was materially prejudiced by such omission, but shall not relieve such
indemnifying party or parties from any liability that it or they may
have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be so
given, such indemnifying party shall be entitled to participate at its
own expense in the defense or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the defense of such
action, in which event such defense shall be conducted by counsel
chosen by such indemnifying party (or parties) and satisfactory to the
indemnified party or parties who shall be defendant or defendants in
such action, and such defendant or defendants shall bear the fees and
expenses of any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of such
action, such indemnifying parties will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained
by them, as such expenses are incurred; provided, however, if the
defendants (including any impleaded parties) in any such action include
both the indemnified party and the indemnifying party, and counsel for
the indemnified party shall have concluded, in its reasonable judgment,
that there may be a conflict of interest involved in the representation
by such counsel of both the indemnifying party and the indemnified
party, the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party, to
participate in the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel representing the indemnified parties who are parties to such
action). Each of the Company and the several Underwriters agrees that
without the other party's prior written consent, which consent shall
not be unreasonably withheld, it will not settle, compromise or consent
to the entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification provisions of
this Agreement, unless such settlement, compromise or consent (i)
includes an unconditional release of such other party from all
liability arising out of such claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of such other party.
(d) If the indemnification provided for in subparagraphs
(a) or (b) above is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and of the Underwriters, on the other
hand, in connection with the statements or omissions that resulted in
such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other
hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions
as the total net proceeds from the offering of the Securities pursuant
to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the
aggregate initial public offering price of the Securities as set forth
on such cover. The relative fault of the Company, on the one hand, and
the Underwriters, on the other hand, shall be
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15
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
subparagraph (d) 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 that does not take account of the equitable
considerations referred to above in this subparagraph (d). 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. For
purposes of this subparagraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this
subparagraph (d) are several in proportion to the number of Securities
set forth opposite their respective names in Schedule II hereto and not
joint.
(e) For purposes of this paragraph 11, it is understood
and agreed that the only information provided by the Underwriters
expressly for use in the Registration Statement and the Prospectus was
as follows: _______________________________.
12. Termination Date of this Agreement. This Agreement may be
terminated by the Representative at any time prior to the Closing Date by
delivering written notice thereof to the Company, if on or after the date of
this Agreement but prior to such time (a) there shall have occurred any general
suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission
or by any federal or state agency or by the decision of any court any limitation
on prices for such trading or any restrictions on the distribution of
securities, or (b) there shall have occurred any new outbreak of hostilities,
including, but not limited to, an escalation of hostilities that existed prior
to the date of this Agreement or any national or international calamity or
crisis, the effect of which outbreak, escalation, calamity or crisis on the
financial markets of the United States shall be such as to make it
impracticable, in the reasonable judgment of the Representative, for the
Underwriters to enforce contracts for the sale of the Securities, or (c) the
Company shall have sustained a substantial loss by fire, flood, accident or
other calamity that renders it impracticable, in the reasonable judgment of the
Representative, to consummate the sale of the Securities and the delivery of the
Securities by the several Underwriters at the initial public offering price, or
(d) there shall have been any downgrading or any notice of any intended or
potential downgrading in the rating accorded the Securities by any "nationally
recognized statistical rating organization" as that term is defined by the
Commission for the purposes of Securities Act Rule 436(g)(2), or any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Securities or any
of the Company's other outstanding debt, the effect of which, in the reasonable
judgment of the Representative, makes it impracticable or inadvisable to
consummate the sale of the Securities and the delivery of the Securities by the
several Underwriters at the initial public offering price. This Agreement may
also be terminated at any time prior to the Closing Date if in the reasonable
judgment of the Representative the subject matter of any amendment or supplement
to the Registration Statement or Prospectus (other than an amendment or
supplement relating solely to the activity of any Underwriter or Underwriters)
filed after the execution of this Agreement
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shall have materially impaired the marketability of the Securities. Any
termination hereof pursuant to this paragraph 12 shall be without liability of
any party to any other party except as otherwise provided in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York. Unless
otherwise specified, time of day refers to New York City time. This Agreement
shall inure to the benefit of, and be binding upon, the Company, the several
Underwriters, and with respect to the provisions of paragraph 11, the officers
and directors and each controlling person referred to in paragraph 11, and their
respective successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
14. Notices. All communications hereunder shall be in writing or
by telefax and, if to the Underwriters, shall be mailed, transmitted by any
standard form of telecommunication or delivered to the Representative at the
address set forth in Schedule I hereto and if to the Company, shall be mailed or
delivered to it at 410 South Wilmington Street, Raleigh, North Carolina 27601,
attention of ___________________.
15. Counterparts. This Agreement may be simultaneously executed in
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
16. Defined Terms. Unless otherwise defined herein, capitalized
terms used in this Underwriting Agreement shall have the meanings assigned to
them in the Registration Statement.
[The remainder of this page has been intentionally left blank.]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed duplicate hereof
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
FLORIDA POWER CORPORATION
By:
--------------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
[NAME OF REPRESENTATIVE]
- -------------------------------
By:
----------------------------------------
Authorized Representative
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SCHEDULE I
Underwriting Agreement dated ___________, ____
Registration Statement No. 333-_____
Representative and Addresses:
-------------------------------
-------------------------------
-------------------------------
Attention: ____________________
with a copy of any notice pursuant to Section 11(a) to:
-------------------------------
-------------------------------
-------------------------------
Attention: Legal Department
Designation: [Title of debt securities]
Principal Amount: $___________
Indenture: ___________________________, dated as of
_______, _______
Date of Maturity: ______________________
Interest Rate: __________% per annum, payable _____________ and
____________ of each year, commencing
______________________.
Record Dates: _____________________ and _____________________,
commencing ______________________________.
Purchase Price: __________% of the principal amount thereof.
Public Offering Price: __________% of the principal amount thereof.
Redemption Terms:
Closing Date and Location:
-------------------
Hunton & Williams
One Hannover Square, 14th Floor
Raleigh, North Carolina 27601
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SCHEDULE II
Underwriters Principal Amount
------------ ----------------
TOTAL .................................$
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