Exhibit 1
PROGRESS ENERGY, INC.
5.85% Senior Notes due 2008
7.00% Senior Notes due 2031
UNDERWRITING AGREEMENT
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October 24, 2001
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Progress Energy, Inc., (the "Company") hereby confirms its
agreement with each of the several Underwriters hereinafter named as follows:
1. Underwriters and Representatives. The term "Underwriters" as used
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herein shall be deemed to mean the several firms named in Schedule II hereto and
any underwriter substituted as provided in paragraph 6 hereof, and the term
"Underwriter" shall be deemed to mean one of such Underwriters. The term
"Representative" as used herein shall be deemed to mean the firms named in
Schedule I hereto, collectively. If any firm named in Schedule I hereto is also
named on Schedule II hereto, then the terms "Underwriters" and "Representative,"
as used herein, shall each be deemed to refer to such firm. The firms named in
Schedule 1 hereto represent, jointly and severally, that they have been
authorized by the Underwriters to execute this Underwriting Agreement (this
"Agreement") on their behalf and to act for them as Representative in the manner
herein provided. All obligations of the Underwriters hereunder are several and
not joint. Any action under or in respect of this Agreement may be taken by
either of the firms listed in Schedule I hereto as the Representative, and such
action will be binding upon all the Underwriters.
2. Description of Securities. The Company proposes to issue and sell its
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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 Bank One Trust
Company, N.A., as trustee (the "Trustee"), in substantially the form heretofore
delivered to the Representative.
3. Representations and Warranties of the Company. The Company represents
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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. 333-49920)
("Registration
Statement No. 333-49920") under the Securities Act of 1933, as amended (the
"Securities Act"), for the registration of up to an aggregate of
$4,000,000,000 of the Company's securities (the "Initial Registered
Securities") as described therein. As of the date hereof, the Company has
sold $3,706,000,000 of the Initial Registered Securities. Registration
Statement No. 333-49920 was declared effective by the Commission on
December 28, 2001. The Company has also filed with the Commission a
registration statement on Form S-3 (No. 333-69738) ("Registration Statement
No. 333-69738") for the registration of $1,000,000,000 of the Company's
securities (the "Additional Registered Securities") as described therein.
As of the date hereof, the Company has sold none of the Additional
Registered Securities. Registration Statement No. 333-69738 was declared
effective by the Commission on October 24, 2001. The Indenture has been
qualified under the Trust Indenture Act of 1939 (the "1939 Act").
Registration Statement No. 333-69738 contained a combined prospectus for
the sale of $1,294,000,000 of the Company's securities. Registration
Statement Nos. 333-49920 and 333-69738 are herein after referred to
collectively as the "Registration Statement." The term "Registration
Statement" shall be deemed to include all amendments to the date hereof and
all documents incorporated by reference therein (the "Incorporated
Documents"). The combined prospectus included in Registration Statement
333-69738 , as supplemented by a preliminary prospectus supplement, dated
October 24, 2001, relating to the Securities, 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 "Preliminary
Prospectus." The combined prospectus included in Registration Statement No.
333-69738, as it is to be supplemented by a prospectus supplement, dated on
or about the date hereof, relating to the Securities (the "Prospectus
Supplement"), and all prior amendments or supplements thereto, 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 Underwriters or their
counsel acting on behalf of the Underwriters.
(c) The Registration Statement, at the time and date each 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
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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 each 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 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 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; the pro forma
combined financial statements incorporated by reference in the Registration
Statement comply as to form, in all material respects, with the applicable
accounting requirements of Rule 11-02 of Regulation S-X, and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements; and Deloitte & Touche LLP, which has
audited certain of the financial statements, is an independent public or
independent certified public accountant as required by the Securities Act
or the Exchange Act and the rules and regulations of the Commission
thereunder.
(e) 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, (i) there has been no material adverse change in
the business, properties, results of operations or financial condition of
the Company and its subsidiaries, considered as a whole; (ii) there has
been
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no material transaction entered into by the Company or any of its
significant subsidiaries (as such term is defined in Rule 1-01(w) of
Regulation S-X) of the Company (each a "Significant Subsidiary" and each of
which is listed on Schedule III hereto) other than transactions
contemplated by the Registration Statement and Prospectus or transactions
arising in the ordinary course of business; and (iii) neither the Company
nor any of its subsidiaries has any material contingent obligation that is
not disclosed in the Registration Statement and Prospectus.
(f) 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 (the "Articles"), by-laws and applicable law.
(g) 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 or Repayment Event (as
defined below) under, the articles of incorporation or the by-laws of the
Company or any Significant Subsidiary, applicable law or any indenture,
mortgage, deed of trust or other agreement or instrument to which the
Company or any Significant Subsidiary 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 Significant
Subsidiaries or any of their assets, properties or operations, that, in the
case of any such breach, default or Repayment Event, would have a material
adverse effect on the business, properties, results of operations or
financial condition of the Company and its subsidiaries considered as a
whole. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Significant Subsidiary of the Company.
(h) The Securities conform in all material respects to the
description contained in the Prospectus.
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of North
Carolina; each Significant Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its organization; each of the Company and each Significant
Subsidiary 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 each of the Company
and each Significant Subsidiary 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, results of operations or financial condition of the Company and
its subsidiaries considered as a whole.
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(j) The outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and non-assessable and is
not subject to preemptive or other similar rights.
(k) The issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the common capital stock of each Significant
Subsidiary is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(l) 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 creditor's 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
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.
(m) 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 and enforceable against the Company in
accordance with their terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transferor 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 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.
(n) 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").
(o) 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 which are likely in the
aggregate, to result in any material adverse change in the business,
properties, results of operations or financial condition of the Company and
its subsidiaries considered as a whole or which are likely in the aggregate
to materially and adversely affect the consummation of this Agreement or
the transactions contemplated herein or therein.
(p) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is
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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 been already obtained or as
may be required under the Securities Act or state securities laws and
except for the qualification of the Indenture under the 1939 Act.
(q) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreements or instruments to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to
which any of the property or assets of the Company or any of them is
subject except for such defaults that would not result in a material
adverse change in the business, properties, results of operations or
financial condition of the Company and its subsidiaries considered as a
whole.
(r) Except as described in the Registration Statement and except as
would not, singly or in the aggregate, result in a material adverse change
in the business, properties, results of operations or financial condition
of the Company and its subsidiaries considered as a whole, neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof.
4. Purchase and Sale. On the basis of the representations, warranties and
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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 of each
series 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
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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.
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(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 Bank One Trust Company, N.A., One North State Street,
Chicago, Illinois 60670-0126,, 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 of the Securities to The Depository Trust Company or to Bank One
Trust Company, N.A., 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
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Closing Date or such other date and time not later than the Closing Date as
agreed by The Depository Trust Company or Bank One Trust Company, N.A. 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 Bank One Trust Company, N.A.
(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 which 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 of any series 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 of such series set forth opposite their respective names in
Schedule II hereto) the principal amount of the Securities of such series
which 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 of
such series 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 principal amount of the Securities which 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 Conduct Rules)
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
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(other than an Underwriter which shall have failed or refused, in
accordance with the terms hereof, to purchase and pay for the principal
amount of the Securities which 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
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that:
(a) As soon as 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
Registered 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 and any preliminary 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 named by the Representative a reasonable number of
copies of a supplement or supplements or an amendment or amendments to the
Prospectus which 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.
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(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,
as may be required, 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
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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 subparagraph (f) of paragraph 7 hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith, such fees and disbursements (excluding
filing fees) 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 Prospectus, 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 (vii) the preparation and execution, and any
filing and recording by the Company of the Indenture (such filing and
recordation to be promptly made, after execution and delivery of such Indenture
to the Trustee); and the Company will pay all taxes, if any (but not including
any transfer taxes), on the issue of the Securities and any filing and
recordation of the Indenture.
The fees and disbursements of Underwriters' counsel shall be paid by the
Underwriters (subject, however, to the provisions of the preceding paragraph
requiring payment by the Company of fees and disbursements (excluding filing
fees) not to exceed $7,500); provided, however, that if this Agreement is
terminated in accordance with the provisions of paragraph 9,
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10 or 12 hereof, 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 hereof 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
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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. 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 Closing Date, the Representative shall receive favorable
opinions from (1) Hunton & Williams, of 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
(which counsel may rely as to all matters of North Carolina law upon the
opinion of William D. Johnson, Esq., Executive Vice President, Corporate
Secretary and General Counsel for 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, and is a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting the rights of
mortgagees and other creditors, and by general equitable principles
and any implied covenant of good faith and fair dealings;
(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 affecting the rights of mortgagees and other 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;
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(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 Senior Notes," insofar as they
purport to constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents 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 each was
declared effective by the Commission, the Preliminary Prospectus, at
the time it was filed with 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, the Preliminary Prospectus 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 and that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1,
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 each 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; and nothing has come to the attention of said
counsel that would lead them to believe that (x) the Preliminary
Prospectus, at the time it was filed with the Commission, included 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, not misleading or (y)
the Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 or, as amended or
supplemented, at the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they
-11-
were made, not misleading (except as to financial statements and other
financial and statistical data constituting a part of the Registration
Statement, the Preliminary Prospectus or the Prospectus or
incorporated by reference therein and that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1,
upon which such opinions need not pass).
(c) At the Closing Date, the Representative shall receive from
William D. Johnson, Esq., Executive Vice President, Corporate Secretary and
General Counsel for 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), (iii), (v) and (vii)
of subparagraph (b) of this paragraph 9 as the opinions required by said
subparagraph (b), and to the further effect that:
(i) the Company is a validly organized and existing corporation
and is in good standing under the laws of the State of North Carolina;
each Significant Subsidiary is a validly organized and existing
corporation and is in good standing under the laws of the jurisdiction
of its organization; and the Company and each of its subsidiaries is
qualified as a foreign corporation in each state where the failure to
be so qualified would have a material adverse effect on the Company
and its subsidiaries considered as a whole;
(ii) each of the Company and each Significant Subsidiary is duly
authorized by its articles of incorporation to conduct the business
which it is now conducting as set forth in the Prospectus;
(iii) the issuance and sale of the Securities have been duly
authorized by all necessary corporate action on the part of the
Company;
(iv) except as described in or contemplated by the Prospectus,
there are no pending actions, suits or proceedings against or
affecting the Company or any Significant Subsidiary which are likely
in the aggregate, to result in any material adverse change in the
business, property, results of operations or financial condition of
the Company and its subsidiaries considered as a whole or which are
likely, in the aggregate, to materially and adversely affect the
consummation of this Agreement or the transactions contemplated herein
or therein;
(v) 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 or
Repayment Event under, the articles of incorporation or by-laws of the
Company or any Significant Subsidiary, applicable law or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any Significant Subsidiary 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 that, in the case of any such breach, default or Repayment
Event, would have a material adverse effect on the
-12-
business, properties, results of operations or financial
condition of the Company and its subsidiaries considered as a
whole;
(vi) an appropriate order of the Commission with
respect to the sale of the Securities under the Public Utility
Holding Company Act of 1935, as amended (the "Holding Company
Act"), has been issued, and such order remains in effect at
this date and constitutes valid and sufficient authorization
under the Holding Company Act for the sale of the Securities
as contemplated by this Agreement; and
(vii) 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 been already obtained or as
may be required under the Securities Act or state securities
laws and except for the qualification of the Indenture under
the 1939 Act.
(d) The Representative shall have received on the date hereof
and shall receive on the Closing Date from Deloitte & Touche LLP, a
letter addressed to the Representative containing statements and
information of the type ordinarily included in accountants' SAS 72
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Prospectus, including the pro-forma
combined financial information.
(e) 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.
(f) 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.
(g) At the Closing Date an order or orders of the Commission
pursuant to the Holding Company Act permitting the issuance and sale of
the Securities shall be in full force and effect and all provisions of
such order or orders heretofore entered are deemed acceptable to the
Representative and the Company, and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Representative and the Company unless within 24 hours after receiving a
copy of any such order either shall give notice to the other to the
effect that such order contains an unacceptable provision.
(h) The Company shall have complied with all notice-filing
and other requirements, if any, of the North Carolina Utilities
Commission, the Public Service
-13-
Commission of South Carolina and the Florida Public Service Commission
with respect to the issuance and sale of the Securities (except as
described in Section 3(p) hereof).
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
hereof.
10. Conditions of the Company's Obligations. The obligations of the
---------------------------------------
Company to deliver the Securities shall be subject to the conditions set forth
in the first sentence of subparagraph (a) of paragraph 9 hereof and in
subparagraph (g) of paragraph 9 hereof. In case these conditions 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 hereof.
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 (i) 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 either thereof, or (ii)
arose out of, or was based upon, statements in or omissions from that
part of the Registration Statement which shall constitute the Statement
of Eligibility under the 1939 Act (Form T-1) of the Trustee under the
Indenture; and further provided, however, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any preliminary prospectus to the extent
that any
-14-
such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Securities to a person as to whom
it is established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such
delivery is required by the Securities Act if the Company has
previously furnished copies thereof sufficient in quantity to such
Underwriter and the loss, liability, claim, or damage of such
Underwriter results from any untrue statement or omission of a
material fact contained in the preliminary prospectus which was
identified in writing at such time to such Underwriter and corrected
in the Prospectus or in the Prospectus as then amended or supplemented
and such correction would have cured the defect giving rise to such
loss, claim, damage or liability 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 or any such officer or
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 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 either 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 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.
-15-
(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 and 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 omission so to notify such
indemnifying party or parties of any such action shall relieve such
indemnifying party or parties from any liability which 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 which 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
-16-
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 which 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 of any series 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 of such series pursuant to this Agreement
(before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters with respect to such
series, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of such 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 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 which 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 principal amount of Securities of each series 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 herein or otherwise
for inclusion in Registration Statement No. 333-69738 and the Prospectus
was as follows: under the caption "Underwriting" in the Prospectus
Supplement, the second, third and fourth sentences in the second paragraph,
the third sentence of the third paragraph, the entire fourth paragraph, and
the entire fifth paragraph. In addition, Tokyo-Mitsubishi International plc
has furnished for inclusion in Registration Statement No. 333-69738 and
Prospectus, the information included in footnote (a) to the table in the
first paragraph under the caption "Underwriting" in the Prospectus
Supplement.
.-17-
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 trading in any securities of the Company shall have been
suspended or limited by any exchange or on the over-the-counter market, or (b)
there shall have occurred any new outbreak of hostilities, including, but not
limited to, an escalation of hostilities which 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 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 or any Significant Subsidiary shall have sustained a substantial loss by
fire, flood, accident or other calamity which 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
Company's 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 or (e) there shall have been declared, by New
York or federal authorities, a general banking moratorium. 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 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 hereof.
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 hereof, the officers and
directors and each controlling person referred to in paragraph 11 hereof, 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
-18-
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 411 Fayetteville
Street, Raleigh, North Carolina 27601-1748, attention of Thomas R. Sullivan,
Treasurer.
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 Agreement shall have the meanings assigned to them in Registration
Statement No. 333-69738.
[The remainder of this page has been intentionally left blank.]
-19-
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,
PROGRESS ENERGY, INC.
By:/s/Thomas R. Sullivan
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
J.P. MORGAN SECURITIES INC.
By: /s/ Jose Padilla
----------------
Title: Vice President
SALOMON SMITH BARNEY INC.
By: /s/ Peter Kind
--------------
Title: Managing Director
-20-
SCHEDULE I
Representative and Addresses:
J.P. Morgan Securities Inc.
270 Park Avenue, 8/th/ Floor
New York, NY 10017-0020
Attention: ____________________
Salomon Smith Barney Inc.
388 Greenwich Street
34th Floor
New York, New York 10013
Attention: ____________________
Designation:
5.850% Senior Notes due 2008
Principal Amount: $400,000,000.
Purchase Price: 99.330% of principal amount.
Public Offering Price: 99.955% of principal amount, plus accrued
interest from date of issuance to date of
payment and delivery.
Interest Rate: 5.850% per year.
Maturity Date: October 30, 2008.
7.000% Senior Notes due 2031
Principal Amount: $400,000,000.
Purchase Price: 98.455% of principal amount.
Public Offering Price: 99.330% of principal amount, plus accrued
interest from date of issuance to date of
payment and delivery.
Interest Rate: 7.000% per year.
Maturity Date: October 30, 2031.
Indenture Dated as of: February 15, 2001.
Interest Payment Dates: Interest on each series of the Senior Notes
will be payable semi-annually in arrears on
April 30 and October 30, commencing April
30, 2002.
Redemption Terms: The Company may redeem some or all of the
Senior Notes of each series at any time at
the redemption prices described under
"Description of the Senior Notes--
Optional Redemption" in the prospectus
supplement, plus accrued interest to the
date of redemption.
Closing Date and Location: October 30, 2001; Hunton & Williams, 421
Fayetteville Street Mall, Raleigh, North
Carolina 27601.
I-2
SCHEDULE II
Underwriter Principal Amount of:
----------------------------
2008 Notes 2031 Notes
---------- ----------
J.P. Morgan Securities Inc. ............................. $120,000,000 $120,000,000
Salomon Smith Barney Inc. ............................... 120,000,000 120,000,000
Banc of America Securities LLC .......................... 32,000,000 32,000,000
Banc One Capital Markets, Inc. .......................... 32,000,000 32,000,000
Goldman, Sachs & Co. .................................... 32,000,000 32,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated ...... 32,000,000 32,000,000
Tokyo-Mitsubishi International plc (a) .................. 32,000,000 32,000,000
------------ ------------
Total ............................................... $400,000,000 $400,000,000
============ ============
(a) Any sales to United States investors by Tokyo-Mitsubishi International plc
will be made in accordance with the applicable laws and regulations of the
United States.
SCHEDULE III
Significant Subsidiaries
------------------------
Carolina Power & Light Company
Progress Capital Holdings, Inc.
Florida Progress Corporation
Florida Power Corporation