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EXHIBIT 1.1
6,000,000
PREFERRED SECURITIES
SEI TRUST I
(A DELAWARE STATUTORY BUSINESS TRUST)
______% CONVERTIBLE TRUST PREFERRED SECURITIES, SERIES A
(LIQUIDATION PREFERENCE $50 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
_________ __, 2000
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
as Representatives of the several Underwriters
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
and
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
SEI Trust I (the "Trust"), a statutory business trust organized under
the Business Trust Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Code, 12 Del. C. (ss.) 3801 et seq.), and Southern
Energy, Inc., a Delaware corporation (the "Company" and, together with the
Trust, the "Offerors"), as sponsor of the Trust and as Guarantor, propose,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
[_____________] ______% Convertible Trust Preferred Securities, Series A,
liquidation amount $50 per preferred security (the "Firm Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust,
convertible into shares of the Company's common stock, par value $0.01 per share
(the "Stock"), and, at the election of the Underwriters, up to [_____________]
additional ______% Convertible Trust Preferred Securities of the Trust (the
"Optional Preferred Securities") (the Firm Preferred Securities and the Optional
Preferred Securities that the Underwriters elect to purchase pursuant to Section
2 hereof being collectively called the "Preferred Securities"). Goldman, Sachs &
Co.
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("Goldman Sachs") and Morgan Stanley & Co. Incorporated ("Morgan Stanley")
are the representatives (the "Representatives") of the Underwriters.
The Preferred Securities will be guaranteed by the Company with respect
to distributions and payments upon liquidation, redemption and otherwise (the
"Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Guarantee Agreement"), dated as of __________, 2000, between the Company and
Bankers Trust Company, as trustee (the "Guarantee Trustee"). The Preferred
Securities and the related Guarantee are referred to herein as the "Securities."
The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") and will be used by the Trust to
purchase the $__________ aggregate principal amount of _______% Junior
Convertible Subordinated Notes, Series A due 2030 (the "Junior Subordinated
Notes") to be issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated Trust Agreement,
dated as of __________ , 2000 (the "Trust Agreement"), among the Company, as
Depositor, Elizabeth B. Chandler, John W. Holden, III and Douglas L. Miller (the
"Administrative Trustees"), Bankers Trust (Delaware), a Delaware banking
corporation (the "Delaware Trustee"), and Bankers Trust Company, a New York
banking corporation (the "Property Trustee" and, together with the Delaware
Trustee and the Administrative Trustees, the "Trustees"), as trustees, and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Junior Subordinated Notes will be issued pursuant to an Indenture,
dated as of _________, 2000 (the "Base Indenture"), between the Company and
Bankers Trust Company, as debt trustee (the "Debt Trustee"), as supplemented by
a First Supplemental Indenture to the Base Indenture, dated as of _____________
___, 2000 (the "Supplemental Indenture," and together with the Base Indenture
and any other amendments or supplements thereto, the "Indenture"), between the
Company and the Debt Trustee.
1. Registration Statement and Prospectus: The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1 (Registration
Nos. 333-41680 and 333-41680-01) under the Act (the "registration statement"),
including a prospectus subject to completion relating to the Preferred
Securities, the Guarantee, the Junior Subordinated Notes and the Stock. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits, including those
exhibits incorporated by reference, but excluding Forms T-1), as amended at the
time it becomes effective, or, if the registration statement became effective
prior to the execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Preferred Securities may commence, the term "Registration Statement" as used
in this
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Agreement means the registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means (a) the
prospectus in the form included in the Registration Statement, (b) if the
prospectus included in the Registration Statement omits information in reliance
on Rule 430A under the Act and such information is included in a prospectus
filed with the Commission pursuant to Rule 424(b) under the Act, the prospectus
in the form included in the Registration Statement as supplemented by the
addition of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b), or (c) if the Company relies on Rule 434
under the Act, the Term Sheet relating to the Preferred Securities that is filed
pursuant to Rule 424(b) under the Act together with the Preliminary Prospectus
identified therein that such Term Sheet supplements. "Term Sheet" means any term
sheet that satisfies the requirements of Rules 434 and 424(b) under the Act. Any
reference in this Agreement to the "date" of a prospectus that includes a Term
Sheet means the date of such Term Sheet. The term "Preliminary Prospectus" as
used in this Agreement means the prospectus subject to completion in the form
included in the registration statement at the time of the initial public filing
of the registration statement with the Commission, and as such prospectus shall
have been amended from time to time prior to the date of the Prospectus.
2. Purchase and Sale: Subject to the terms and conditions herein
set forth, (a) the Company agrees to cause the Trust and the Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, at a purchase price per
Preferred Security of $50, the number of Firm Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Preferred Securities as provided below, the Company agrees to cause the
Trust and the Trust agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, at the purchase price per Preferred Security set forth in this Section 2,
that portion of the number of Optional Preferred Securities as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional Preferred Securities) determined by multiplying such number of
Optional Preferred Securities by a fraction, the numerator of which is the
maximum number of Optional Preferred Securities which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of Optional
Preferred Securities that all of the Underwriters are entitled to purchase
hereunder.
The Company and the Trust hereby grant to the Underwriters the right to
purchase at their election up to [______] Optional Preferred Securities, at the
purchase price per Preferred Security set forth in the paragraph above, for the
sole purpose of covering sales of securities in excess of the number of Firm
Preferred Securities. Any such election to purchase Optional Preferred
Securities may be exercised only by written notice from the Representatives to
the Trust and the Company, given within a period of 30 calendar days after the
date of this Agreement, setting forth the aggregate number of Optional Preferred
Securities to be purchased and the date on which such Optional Preferred
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives, the Trust and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of such
notice.
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The purchase price per Preferred Security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price as noted above in this Section 2, which is a fixed
price determined by agreement between the Representatives and the Offerors. As
compensation to the Underwriters for the commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay at the Time of Delivery (as defined herein) to the
Representatives, for the accounts of the several Underwriters, a commission per
Preferred Security as set forth on Schedule II per Preferred Security to be
delivered by the Trust hereunder at the Time of Delivery.
3. Offer of Preferred Securities: The Offerors have been advised
by the Representatives that the Underwriters propose to make an offering of the
Preferred Securities on the terms and subject to the conditions and in the
manner set forth in the Prospectus.
4. Payment and Delivery:
(a) Payment of the purchase price for, and delivery of
certificates for, the Firm Preferred Securities shall be made
at 9:30 a.m., New York, New York time, on ___________, 2000 or
such other time and date as Goldman Sachs, Morgan Stanley, the
Trust and the Company may agree upon in writing. In addition,
in the event that any or all of the Optional Preferred
Securities are purchased by the Underwriters, payment for, and
delivery of certificates for, the Optional Preferred
Securities shall be made at 9:30 a.m., New York, New York
time, on the date specified by the Representatives in the
written notice given by the Representatives of the
Underwriters' election to purchase such Optional Preferred
Securities, or such other time and date as the
Representatives, the Trust and the Company may agree upon in
writing. Such time and date for delivery of the Firm Preferred
Securities is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Preferred
Securities, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
Payment shall be made to the Trust by wire transfer in federal
funds at the Time of Delivery, against delivery to the
Representatives for the respective accounts of the
Underwriters of certificates for the Preferred Securities to
be purchased by them. Certificates for the Preferred
Securities shall be in such denominations and registered in
such names as the Representatives may request in writing at
least two business days before the Time of Delivery. It is
understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the
Preferred Securities that it has agreed to purchase. The
Representatives, individually and not as Representatives of
the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities to
be purchased by any Underwriter whose funds have not been
received by the Time of Delivery, but such payment shall not
relieve such Underwriter from its obligations hereunder.
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The certificate(s) for the Preferred Securities will be made
available for checking by the Representatives not later than 10:00
a.m., New York, New York time, on the last business day prior to the
Time of Delivery.
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 5(b)
hereof, including the cross receipt for the Preferred
Securities and any additional documents requested by the
Underwriters pursuant to Section 5(b)(vii) hereof, will be
delivered at the offices of Troutman Sanders LLP, 600
Peachtree Street, N.E., Suite 5200, Atlanta, Georgia 30308
(the "Closing Location"), and the Preferred Securities will be
delivered at the offices of The Depository Trust Company or
its designated custodian, all at such Time of Delivery. A
meeting will be held at the Closing Location at 1:00 p.m.,
Atlanta, Georgia time, on the Business Day immediately
preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New
York, New York or Atlanta, Georgia are generally authorized or
obligated by law or executive order to close.
5. Conditions of Underwriters' Obligations: The several
obligations of the Underwriters hereunder are subject to the accuracy in all
material respects of the representations and warranties on the part of the
Offerors herein contained at each Time of Delivery, and to the following other
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 6(a) hereof; if the
Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00
P.M., Atlanta, Georgia time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
(b) That, at such Time of Delivery, the Underwriters shall be
furnished the following opinions and letter with such changes
therein as may be agreed upon by the Trust, the Company and
the Representatives:
(i) Opinion of Troutman Sanders LLP, of Atlanta, Georgia,
counsel to the Company, substantially in the form
attached hereto as Exhibit 1.
(ii) Opinion of Shearman & Sterling, of New York, New
York, counsel to the Underwriters, substantially in
the form attached hereto as Exhibit 2.
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(iii) A letter dated as of such Time of Delivery from
Arthur Andersen LLP, substantially in the form
attached hereto as Exhibit 3, which shall confirm to
the statements made in the letter dated the date
hereof from Arthur Andersen LLP being delivered to
the Underwriters concurrently with the execution
hereof.
(iv) Opinion of Richards, Layton & Finger, P.A., Delaware
counsel to the Trust, substantially in the form
attached hereto as Exhibit 4.
(v) Opinion of Richards, Layton & Finger, P.A., Delaware
counsel to Bankers Trust (Delaware), as Delaware
Trustee under the Trust Agreement, substantially in
the form attached hereto as Exhibit 5.
(vi) Opinion of Seward & Kissell, counsel to the Property
Trustee, the Guarantee Trustee and the Debt Trustee,
substantially in the form attached hereto as Exhibit
6.
(vii) Such documents relating to the Company's and Trust's
corporate existence and their authorization and
execution of this Agreement, as Goldman Sachs may
reasonably request.
(c) That, prior to such Time of Delivery, there shall have been no
material adverse change in the business, properties or
financial condition of the Company or the Trust from that set
forth in or contemplated by the Prospectus, and that the
Company and the Trust shall, at the Time of Delivery, have
delivered to the Underwriters a certificate to such effect of
an executive officer of the Company and the Trust.
(d) The Preferred Securities to be sold at such Time of Delivery
shall have been duly listed for trading on the New York Stock
Exchange, subject to official notice of issuance.
(e) That the Company and the Trust shall have performed their
respective obligations under this Agreement as are to be
performed at or prior to the Time of Delivery by the terms
hereof.
(f) The Southern Company shall have delivered to the
Representatives an agreement that, during a period of 180 days
from the date of the Prospectus, it will not, without the
prior written consent of the Representatives, offer, sell (or
grant any option or warrant to offer or sell) any of the
Preferred Securities or the Common Stock of the Company or any
security convertible into the Preferred Securities or the
Common Stock of the Company; provided, however, that the
foregoing shall not apply to any securities or options to
purchase any securities granted or sold pursuant to any
employee or director compensation plans described in the
Registration Statement.
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(g) The shares of Common Stock issuable upon conversion of the
Preferred Securities shall have been duly listed on the New
York Stock Exchange, subject to official notice of issuance.
(h) All conditions for the issuance and sale of the Company's
Common Stock shall have been satisfied or waived.
6. Certain Covenants of the Offerors: In further consideration of
the agreements of the Underwriters herein contained, each of the Offerors
covenants as follows:
(a) To prepare the Prospectus and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under
the Act; to furnish to each of Goldman Sachs and Morgan
Stanley one manually signed copy of the Registration Statement
and all amendments thereto; to advise Goldman Sachs and Morgan
Stanley, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus
or Prospectus, of the suspension of the qualification of the
Preferred Securities, Junior Subordinated Notes or the shares
of Stock issuable upon conversion of the Preferred Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use reasonable efforts to obtain
the withdrawal of such order.
(b) The Offerors will furnish to the Underwriters, without charge,
as many copies of the Preliminary Prospectus and the
Prospectus (as supplemented or amended if the Offerors shall
have made any supplements or amendments thereto) as Goldman
Sachs and Morgan Stanley may reasonably request.
(c) If at any time prior to the earlier of (i) the completion of
the distribution of the Preferred Securities by the
Underwriters or purchasers who are not their affiliates (as
reasonably determined by the Representatives), and (ii) 270
days after the Time of Delivery, any event shall have occurred
as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the
light of the circumstances under which the statements are
made, not misleading, the Offerors will forthwith amend or
supplement the Prospectus by furnishing, at its own expense,
to the Underwriters and to dealers (whose names and addresses
are furnished to the Offerors by Goldman Sachs and Morgan
Stanley) to whom the Preferred Securities may have been sold
by the Underwriters and, upon request, to any other dealers
making such request, either amendments to the Prospectus or
supplements thereto so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances under which the statements are made, be
misleading.
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(d) During such time as the Underwriters are required to deliver a
Prospectus pursuant to Section 5 of the Act, the Company will
prepare and file with the Commission the documents required to
be filed pursuant to Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder.
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement
of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules
and regulations thereunder (including, at the option of the
Company, Rule 158).
(f) The Offerors will cooperate with the Underwriters to qualify
the Preferred Securities, the shares of Stock issuable upon
conversion of the Preferred Securities and, to the extent
required or advisable, the Guarantee and Junior Subordinated
Notes, for offer and sale under the securities or "blue sky"
laws of such states and other jurisdictions as Goldman Sachs
and Morgan Stanley may reasonably request and the Company will
pay filing fees, reasonable attorneys' fees and disbursements
in connection therewith in an amount not exceeding $15,000 in
the aggregate (including filing fees and disbursements paid or
incurred prior to the date this Agreement becomes effective);
provided, however, that neither the Company nor the Trust
shall be required to qualify as a foreign corporation or to
file a consent to service of process or to file annual reports
or to comply with any other requirements deemed by the
Offerors to be unduly burdensome.
(g) The Company will pay all costs and expenses incident to the
performance of each of the Offerors' obligations under this
Agreement, including (i) the preparation of the Preliminary
Prospectus, the Prospectus (including financial statements)
and any amendments or supplements thereto, (ii) the
preparation and printing of the Preferred Securities
certificates, (iii) the issuance and delivery of the Preferred
Securities to the Underwriters (other than transfer taxes),
(iv) the furnishing of the opinions, letter and certificate
referred to in Section 5(b) hereof (other than the opinion
referred to in Section 5(b)(ii) hereof), (v) the fees and
expenses of the Debt Trustee, the Delaware Trustee, the
Property Trustee and the Guarantee Trustee, and in the amounts
agreed pursuant to separate agreements.
It is understood that the Underwriters shall be solely
responsible to pay all fees and expenses of counsel to the
Underwriters, and that the Company shall not be liable to
reimburse the Underwriters for such fees and expenses.
(h) If the Underwriters shall not take up and pay for the
Preferred Securities due to the failure of the Offerors to
comply with any of the conditions specified in Section 5
hereof, the Company shall reimburse the Underwriters for all
of their reasonable out-
<PAGE> 9
of-pocket accountable expenses, in an amount not exceeding a
total of $500,000, incurred in connection with the financing
contemplated by this Agreement.
(i) During a period of 180 days from the date of the Prospectus,
neither the Trust nor the Company will, without the prior
written consent of the Representatives, offer, sell (or grant
any option or warrant to offer or sell) any Preferred
Securities, or any security convertible into or exchangeable
for the Preferred Securities or the Junior Subordinated Notes
or any securities substantially similar to the Preferred
Securities or the Junior Subordinated Notes (except for the
Junior Subordinated Notes and the Preferred Securities issued
pursuant to this Agreement) or any Common Stock of the
Company; provided, however, that the foregoing shall not apply
to any securities or options to purchase any securities
granted or sold pursuant to any employee or director
compensation plans described in the Registration Statement.
7. Warranties of and Indemnity by the Offerors:
(a) The Offerors warrant and represent to each of the Underwriters
that:
(i) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and
regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as
to the Registration Statement and any amendment
thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; provided,
however, that this representation and warranty shall
not apply to (A) that part of the Registration
Statement that shall constitute the Statements of
Eligibility (Form T-1) (collectively, the "Form T-1")
under the Trust Indenture Act, (B) any statements or
omissions made in reliance upon and in conformity
with information furnished in writing to the Company
or the Trust by an Underwriter through either or both
of the Representatives expressly for use therein or
(C) any information set forth in the Prospectus under
the caption "Description of the Preferred
Securities--Book-Entry Only Issuance--The Depository
Trust Company."
(ii) The Company is a corporation duly organized and
validly existing under the laws of Delaware and has
all requisite corporate power and authority to
execute, deliver and perform its material obligations
under this Agreement.
(iii) The Preferred Securities, when issued and delivered
by the Trust pursuant to this Agreement against
payment of the consideration set forth in this
Agreement, will be duly authorized, validly issued
and (subject to the terms of
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the Trust Agreement) fully paid and nonassessable
undivided beneficial interests in the Trust; the
issuance of the Preferred Securities is not subject
to preemptive or similar rights under (i) the
statutes, judicial and administrative decisions, and
the rules and regulations of the governmental
agencies of the State of Delaware, (ii) the Trust
Agreement or (iii) any instrument, document, contract
or other agreement filed as an exhibit to the
Registration Statement.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust.
(v) The Company is not in violation of its Certificate of
Incorporation or By-laws or in default in the
performance or observance of any obligation,
agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is
a party or by which it or any of its properties may
be bound that would have a material adverse effect on
the business, financial condition, results of
operations of the Company and its subsidiaries, taken
as a whole.
(vi) The shares of Stock issuable upon conversion of the
Preferred Securities, when issued and delivered by
the Company pursuant to the Trust Agreement, will be
duly authorized, validly issued, fully paid and
nonassessable and will not be subject to preemptive
or similar rights under (i) the statutes, judicial
and administrative decisions, and the rules and
regulations of the governmental agencies of the State
of Delaware, (ii) the Company's Certificate of
Incorporation or By-laws or (iii) any instrument,
document, contract or other agreement filed as an
exhibit to the Registration Statement.
(b) The Offerors agree to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the 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 Act or otherwise, and to reimburse the
Underwriters and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection
with investigating or defending any actions, insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary
Prospectus, or the Prospectus as amended or supplemented, or
arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or
omission which was made in such Preliminary Prospectus or
Prospectus, as amended or supplemented, in reliance upon and
in conformity with information furnished in writing to any
Offeror by, or through either or both of the Representatives
on behalf of, any Underwriter for use therein and except that
this indemnity with respect to the
<PAGE> 11
Preliminary Prospectus, and with respect to the Prospectus, if
the Offerors shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of any Underwriter (or
of any person controlling such Underwriter) on account of any
losses, claims, damages, liabilities or actions arising from
the sale of Preferred Securities to any person if a copy of
the Preliminary Prospectus or the Prospectus, as the same may
then be amended or supplemented, after having been supplied in
the quantities requested by the Representatives, shall not
have been sent or given by or on behalf of such Underwriter to
such person with or prior to the written confirmation of the
sale involved and if the Preliminary Prospectus or the
Prospectus (as so amended or supplemented) would have
corrected the defect giving rise to such loss, liability,
claim or damage.
The Offerors' indemnity agreement contained in this
Section 7(b), and its covenants, warranties and
representations contained in this Agreement, shall remain in
full force and effect regardless of any investigation made by
or on behalf of any Underwriter or controlling person, and
shall survive the delivery of and payment for the Preferred
Securities hereunder.
8. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents to the Trust and the
Company and its directors and officers that the information
furnished in writing to the Trust or the Company by, or
through Goldman Sachs or Morgan Stanley on behalf of, such
Underwriter for use in the Preliminary Prospectus, the
Prospectus or the Prospectus as amended or supplemented, does
not contain an untrue statement of a material fact and does
not omit to state a material fact in connection with such
information required to be stated therein or necessary to make
such information not misleading.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Trust and the Company and its directors and
officers, and each person, if any, who controls the Trust or
the Company within the meaning of Section 15 of the Act, to
the same extent and upon the same terms as the indemnity
agreement of the Offerors set forth in Section 7(b) hereof,
but only with respect to untrue statements or omissions or
alleged untrue statements or omissions in the Preliminary
Prospectus, the Prospectus or the Prospectus as amended or
supplemented, made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company
by, or through either or both of the Representatives on behalf
of, such Underwriter for use therein.
The indemnity agreement on the part of each
Underwriter contained in this Section 8(b), and the
representations of such Underwriter contained in this
Agreement, shall remain in full force and effect regardless of
any investigation made by or on behalf of the Trust, the
Company or other Underwriter or controlling person, and shall
survive the delivery of and payment for the Preferred
Securities hereunder.
9. Procedures Relating to Indemnification: Promptly after receipt
by a party indemnified under Section 7 or 8 above of written notice of any loss,
claim, damage or liability in respect of which indemnity may be sought by it
hereunder, such indemnified party will, if a
<PAGE> 12
claim is to be made against an indemnifying party, notify the indemnifying party
thereof in writing, but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability (otherwise than under this
Section 7 or 8 hereof, as the case may be) which it may have to the indemnified
party. Thereafter, the indemnified party and the indemnifying party shall
consult, to the extent appropriate, with a view to minimizing the cost to the
indemnifying party of its obligations hereunder. In case any indemnified party
receives written notice of any loss, claim, damage or liability in respect of
which indemnity may be sought by it hereunder and it notifies the indemnifying
party thereof, the indemnifying party will be entitled to participate therein,
and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party; provided, however, that if the parties
against which any loss, claim, damage or liability arises include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that the defenses available to it create a conflict of
interest for the counsel selected by the indemnifying party under the code of
professional responsibility applicable to such counsel, the indemnified party
shall have the right to select one separate counsel to assume such legal
defenses and otherwise to participate in the defenses of such loss, claim,
damage or liability on behalf of the indemnified party. Upon receipt by the
indemnified party of notice from the indemnifying party of its election so to
assume the defense of such loss, claim, damage or liability and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to the
indemnified party under Section 7 or 8 hereof, as the case may be, for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defenses in accordance
with the proviso to the next preceding sentence, (ii) the indemnifying party
shall not have employed and continued to employ counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
shall have authorized in writing the employment of separate counsel for the
indemnified party at the expense of the indemnifying party. No indemnifying
party shall, without prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which the
indemnified party is or is entitled or subject to be a party and the indemnified
party is entitled to indemnity hereunder unless such settlement includes an
unconditional release of the indemnified party from all liability on any claims
that are the subject matter of such action. No indemnifying party shall be
liable for any settlement, compromise or consent to the entry of any order
adjudicating or otherwise disposing of any loss, claim, damage or liability
effected without its written consent.
If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) that would
otherwise have been indemnified under the terms of such indemnity, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other from the offering of the Preferred Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
above,
<PAGE> 13
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Offerors on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equity
considerations. The relative benefits received by the Offerors on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Offerors bear to the total underwriting commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Offerors and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this section 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 section. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this section shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Preferred Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute are
several in proportion to their respective underwriting obligations and not
joint.
10. Substitution of Underwriters:
(a) If any Underwriter under this Agreement shall fail or refuse
(whether for some reason sufficient to justify, in accordance
with the terms hereof, the termination of its obligations to
purchase or otherwise) to purchase the Preferred Securities
which it has agreed to purchase, the Company or the Trust
shall immediately notify the remaining Underwriters and the
remaining Underwriters may, within 24 hours of receipt of such
notice, procure some other responsible party or parties
satisfactory to the Offerors, who may include one or more of
the remaining Underwriters, to purchase or agree to purchase
such Preferred Securities on the terms herein set forth; and,
if the remaining Underwriters shall fail to procure a
satisfactory party or parties to purchase or agree to purchase
such Preferred Securities on such terms within such period
after the receipt of such notice, then the Company or the
Trust shall be entitled to an additional period of 24 hours
within which to procure another party or parties to purchase
or agree to purchase such Preferred Securities on the terms
herein set forth. In any such case,
<PAGE> 14
either the remaining Underwriters, the Company or the Trust
shall have the right to postpone the Time of Delivery for a
period not to exceed five business days from the date set
forth in Section 4 hereof, in order that the necessary changes
to the Prospectus and any other documents and arrangements may
be effected. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with
like effect as if such person had originally been a party to
this Agreement with respect to such Preferred Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Preferred Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the
Trust as provided in subsection (a) above, the aggregate
number of such Preferred Securities which remains unpurchased
does not exceed one-tenth of the aggregate number of all the
Preferred Securities to be purchased at such Time of Delivery,
then the Offerors shall have the right to require each
non-defaulting Underwriter to purchase the number of Preferred
Securities which such Underwriter agreed to purchase hereunder
at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share
(based on the number of Preferred Securities which such
Underwriter agreed to purchase hereunder) of the Preferred
Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase
of the Preferred Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the
Trust as provided in subsection (a) above, the aggregate
number of such Preferred Securities which remains unpurchased
exceeds one-tenth of the aggregate number of all the Preferred
Securities to be purchased at such Time of Delivery, or if the
Company or the Trust shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to
purchase Preferred Securities of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the
Second Time of Delivery, the obligations of the Underwriters
to purchase and of the Trust to sell the Optional Preferred
Securities) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter, the Company or the
Trust, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof and the
indemnity agreements in Sections 7 and 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
11. Termination of Agreement: This Agreement may be
terminated at any time prior to the Time of Delivery by the Representatives, if,
after this Agreement becomes effective, (i) trading in securities on the New
York Stock Exchange shall have been generally suspended or materially limited;
(ii) trading in the Trust's or the Company's securities on the New York Stock
Exchange shall have been suspended; (iii) a general banking moratorium shall
have been declared by federal or New York State authorities; (iv) there shall
have occurred any declaration of war by the United States Congress or any other
substantial national or international emergency affecting the United States; or
(v) the Company's long-term unsecured senior debt securities shall be rated Ba3
or below by Moody's Investor Services or BB- or below by Standard & Poor's
<PAGE> 15
Rating Agency, in any such case provided for in clauses (i) through (v) with the
result that, in the reasonable judgment of the Representatives, the
marketability of the Preferred Securities shall have been materially impaired.
If the Representatives elect to terminate this Agreement as
provided in this Section 11, the Offerors shall be notified promptly by Goldman
Sachs and Morgan Stanley by telephone, confirmed in writing. If this Agreement
shall not be carried out by any Underwriter for any reason permitted hereunder,
or if the sale of the Preferred Securities to the Underwriters as herein
contemplated shall not be carried out because the Company or the Trust is not
able to comply with the terms hereof, the Offerors shall not be under any
obligation under this Agreement and shall not be liable to any Underwriter or to
any member of any selling group for the loss of anticipated profits from the
transactions contemplated by this Agreement (except that the Company or the
Trust shall remain liable to the extent provided in Section 6(f) and (g) hereof)
and the Underwriters (other than a defaulting Underwriter) shall be under no
liability to the Company or the Trust nor be under any liability under this
Agreement to one another.
12. Notices: All notices hereunder shall, unless
otherwise expressly permitted, be in writing and be delivered at or mailed to
the following addresses:
Southern Energy, Inc.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
Attention: Treasurer
Tel: (770) 821-7000
Fax: (770) 821-7001
SEI Trust I
1403 Foulk Road
Suite 102
Wilmington, Delaware 19803
Tel: (302) 427-1935
Fax: (302) ___-___
with copies to (such copy not to constitute notice):
Troutman Sanders LLP
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: John T. W. Mercer, Esq.
Tel: (404) 885-3182
Fax: (404) 962-6632
<PAGE> 16
If to Underwriters at:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Don Hansen
Tel: 212-902-6685
Fax: 212-902-9020
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Patrick R. Kelly
Tel: 212-761-7805
Fax: 212-761-0354
with copies to (such copy not to constitute notice):
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: John A. Millard, Esq.
Tel: (212) 848-7028
Fax: (212) 848-7179
13. Parties in Interest: The agreement herein set forth
has been and is made solely for the benefit of the Underwriters, the Trust and
the Company and their respective directors and officers, and the controlling
persons, if any, referred to in Sections 7 and 8 hereof, and their respective
successors, assigns, executors and administrators, and, subject to the
provisions of Section 10 hereof, no other person shall acquire or have any right
under or by virtue of this agreement.
14. Applicable Law, Jurisdiction: This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the choice of law or conflict of law principles
thereof.
15. Counterparts: This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument.
<PAGE> 17
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
SOUTHERN ENERGY, INC.
By:
-------------------------------------------
Name:
Title:
SEI TRUST I
By: Southern Energy, Inc., as Depositor
By:
-------------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
ABN Amro Incorporated
Donaldson, Lufkin & Jenrette Securities Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
By:
-------------------------------------------
(Goldman, Sachs & Co.)
By:
-------------------------------------------
(Morgan Stanley & Co. Incorporated)
On behalf of each of the Underwriters
<PAGE> 18
SCHEDULE I
Underwriters
<TABLE>
<CAPTION>
Number of Preferred Securities to be
Total Number of Preferred Purchased if Maximum Option to
Underwriter Securities to be Purchased Purchase Exercised
----------- -------------------------- ------------------------------------
<S> <C> <C>
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
ABN Amro Incorporated
Donaldson, Lufkin & Jenrette Securities
Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
UBS Warburg LLC
Total Preferred Securities
</TABLE>
<PAGE> 19
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $50
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $__ for
Preferred Securities sold to certain
institutions; $_____ for Preferred\
Securities sold to other purchasers
