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EXHIBIT 1.1
SOUTHERN ENERGY, INC.
UNDERWRITING AGREEMENT
FOR PURCHASE OF [66,700,000] SHARES
OF COMMON STOCK OF THE COMPANY
_________ __, 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:
Southern Energy, Inc., a Delaware corporation (the "Company"),
proposes, 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 [58,000,000] shares (the "Firm Shares") and, at the election of the
Underwriters, up to [8,700,000] additional shares (the "Optional Shares") of
Common Stock, par value $0.01 per share ("Stock"), of the Company (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof being collectively called the "Shares"). Goldman, Sachs &
Co. and Morgan Stanley & Co. Incorporated are the representatives (the
"Representatives") of the Underwriters.
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
No. 333-35390) under the Act (the "registration statement"), including a
prospectus subject to completion relating to the Shares. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), 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
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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 Shares may
commence, the term "Registration Statement" as used in this 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 Shares 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 issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price per share of $[ _________ ], the number of Firm
Shares 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 Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares 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 Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to [8,700,000] Optional Shares, at the purchase price per
share set forth in the paragraph above, for the purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you 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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3. Offer of Shares: The Company has been advised by you that the
Underwriters propose to make an offering of the Shares on the terms and subject
to the conditions and in the manner set forth in the Prospectus.
4. Payment and Delivery:
(a) The Shares to be purchased by each Underwriter
hereunder, in definitive or electronic form, and in
such authorized denominations and registered in such
names as Goldman, Sachs & Co. and Morgan Stanley &
Co. Incorporated may request upon at least
forty-eight hours' prior notice to the Company, shall
be delivered by or on behalf of the Company to
Goldman, Sachs & Co., through the facilities of The
Depository Trust Company ("DTC"), for the account of
such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the
account specified by the Company to Goldman, Sachs &
Co. and Morgan Stanley & Co. Incorporated at least
forty-eight hours in advance. The Company will cause
the certificates representing the Shares to be made
available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of
Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004 (the "Designated Office"). The time and
date of such delivery and payment shall be, with
respect to the Firm Shares, 9:30 a.m., New York, New
York time, on [__], 2000 or such other time and date
as Goldman, Sachs & Co., Morgan Stanley & Co.
Incorporated and the Company may agree upon in
writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by
Goldman, Sachs & Co. and Morgan Stanley & Co.
Incorporated in the written notice given by Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated of
the Underwriters' election to purchase such Optional
Shares, or such other time and date as Goldman, Sachs
& Co., Morgan Stanley & Co. Incorporated and the
Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for
delivery of the Optional Shares, 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".
(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 Shares and any additional documents
requested by the Underwriters pursuant to Section
5(b)(iv) 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 Shares will be delivered at the
Designated Office, 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.
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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
Company 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 your 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 Company, Goldman, Sachs & Co. and Morgan Stanley
& Co. Incorporated.
(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.
(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 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) Such documents relating to the Company's
corporate existence and its authorization
and execution of this Agreement, as Goldman,
Sachs & Co. 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 from
that set forth in or contemplated by the Prospectus,
and that the Company shall, at the Time of Delivery,
have delivered to the Underwriters a certificate to
such effect of an executive officer of the Company.
(d) 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 Common Stock of
the Company or any security convertible into the
Common Stock of the Company; provided, however, that
the foregoing shall
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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.
(e) The individuals listed on Exhibit 4 hereto shall have
delivered to the Representatives an agreement
substantially in the form of such Exhibit 5.
(f) The Shares 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.
(g) That the Company shall have performed such of its
obligations under this Agreement as are to be
performed at or prior to the Time of Delivery by the
terms hereof.
6. Certain Covenants of the Company: In further consideration of
the agreements of the Underwriters herein contained, the Company 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 & Co. and Morgan
Stanley & Co. Incorporated one manually signed copy
of the Registration Statement and all amendments
thereto; to advise Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated 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 Shares 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.
The Company will furnish to the
Underwriters, without charge, as many copies of the
Preliminary Prospectus and the Prospectus (as
supplemented or amended if the Company shall have
made any supplements or amendments thereto) as
Goldman, Sachs & Co. and Morgan Stanley & Co.
Incorporated may reasonably request.
(b) If at any time prior to the earlier of (i) the
completion of the distribution of the Shares by the
Underwriters or purchasers who are not their
affiliates (as reasonably determined by Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated),
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 light of the
circumstances under which the statements are made,
not misleading, the Company will forthwith amend or
supplement the Prospectus by
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furnishing, at its own expense, to the Underwriters
and to dealers (whose names and addresses are
furnished to the Company by Goldman, Sachs & Co. and
Morgan Stanley & Co. Incorporated) to whom Shares 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 light of the
circumstances under which the statements are made, be
misleading.
(c) 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.
(d) 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).
(e) The Company will cooperate with the Underwriters to
qualify the Shares for offer and sale under the
securities or "blue sky" laws of such states and
other jurisdictions as Goldman, Sachs & Co. and
Morgan Stanley & Co. Incorporated may reasonably
request and to 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 the Company shall
not 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 Company to be unduly
burdensome.
(f) The Company will pay all costs and expenses incident
to the performance of the obligations of the Company
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 Share certificates, (iii) the issuance
and delivery of the Shares 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), 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.
(g) If the Underwriters shall not take up and pay for the
Shares due to the failure of the Company to comply
with any of the conditions specified in Section 5
hereof, the
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Company shall reimburse the Underwriters for all of
their reasonable out-of-pocket accountable expenses,
in an amount not exceeding a total of $500,000,
incurred in connection with the financing
contemplated by this Agreement.
(h) During a period of 180 days from the date of the
Prospectus, the Company will not, without the prior
written consent of Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated, offer, sell (or grant any
option or warrant to offer or sell) any of the Common
Stock of the Company or any security convertible into
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.
7. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents 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
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 any statements
or omissions made in reliance upon and in
conformity with information furnished in
writing to the Company by an Underwriter
through either or both of the
Representatives expressly for use therein.
(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 Shares, when issued and delivered by the
Company pursuant to this Agreement against
payment of the consideration set forth in
this Agreement, will be, duly authorized,
validly issued, fully paid and nonassessable
and will not be subject to any preemptive or
similar right 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.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
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(v) Listed on Exhibit 4 hereto, are (i) our
employees who we expect will have at least
30,000 vested units (not including indexed
units) in our value creation plans as of
March 15, 2001 and (ii) our directors and
executive officers.
(vi) 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.
(b) The Company agrees 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 the Company 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 Preliminary Prospectus, and with
respect to the Prospectus if the Company 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 Shares to any person
if a copy of the Prospectus, as the same may then be
amended or supplemented, after having been supplied
in the quantities requested by the Representatives
from the Company, 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 Prospectus (as so amended or
supplemented) would have corrected the defect giving
rise to such loss, liability, claim or damage.
The Company's 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
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Underwriter or controlling person, and shall survive
the delivery of and payment for the Shares hereunder.
8. Warranties of and Indemnity by Underwriters:
(a) Each Underwriter warrants and represents to the
Company and its directors and officers that the
information furnished in writing to the Company by,
or through you 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 Company, its directors and
officers, and each person, if any, who controls 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 Company 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 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 Company or other Underwriter or controlling
person, and shall survive the delivery of and payment
for the Shares 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 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
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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 Company on the one hand and the Underwriters
on the other from the offering of the Shares. 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, 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 Company on the one had 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 Company on the one had and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total compensation received by the Underwriters in respect of underwriting
discounts and commissions as set forth in the table on the cover page of the
Prospectus plus financial advisory fees paid to the Representatives by The
Southern Company. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
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other 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 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 Shares 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 Shares which it has agreed
to purchase, the Company 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 Company, who may include one or
more of the remaining Underwriters, to purchase or
agree to purchase such Shares 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 Shares on such
terms within such period after the receipt of such
notice, then the Company 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 Shares on the terms herein set forth.
In any such case, either the remaining Underwriters
or the Company 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 Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or
Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed
one-tenth of the aggregate number of all the Shares
to
-11-
<PAGE> 12
be purchased at such Time of Delivery, then the
Company shall have the right to require each
non-defaulting Underwriter to purchase the number of
Shares 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
Shares which such Underwriter agreed to purchase
hereunder) of the Shares 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 Shares of a defaulting Underwriter or
Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-tenth of
the aggregate number of all the Shares to be
purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to
purchase Shares 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 Company to
sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting
Underwriter or the Company, 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 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 and Poors 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 Shares shall have been materially impaired.
If the Representatives elect to terminate this Agreement as
provided in this Section 11, the Company shall be notified promptly by Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated 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 Shares to the Underwriters as
herein contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company 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 shall remain liable to
the extent provided in Section 6(f) and (g) hereof) and the
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<PAGE> 13
Underwriters (other than a defaulting Underwriter) shall be under no liability
to the Company 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
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
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 P. Kelly, Principal
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-
<PAGE> 14
13. Parties in Interest: The agreement herein set forth has been
and is made solely for the benefit of the Underwriters and the Company, its
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.
-14-
<PAGE> 15
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
SOUTHERN ENERGY, INC.
By:
-----------------------
Name:
Title:
Confirmed and accepted as of the date
first above written.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Salomon Smith Barney Inc.
By:
--------------------------------------
(Goldman, Sachs & Co.)
By:
--------------------------------------
(Morgan Stanley & Co. Incorporated)
On behalf of each of the Underwriters.
-15-
<PAGE> 16
SCHEDULE I
Underwriters
<TABLE>
<CAPTION>
Number of Shares to be
Total Number of Shares Purchased if Maximum Option
Underwriter to be Purchased to Purchase Exercised
----------- ----------------------- ---------------------------
<S> <C> <C>
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Salomon Smith Barney Inc.
Total Shares
</TABLE>
<PAGE> 17
EXHIBIT 1
Form of Opinion of Troutman Sanders LLP pursuant to Section 5(b)(i)
<PAGE> 18
EXHIBIT 2
Form of Opinion of Shearman & Sterling pursuant to Section 5(b)(ii)
<PAGE> 19
EXHIBIT 3
Letter from Arthur Andersen LLP pursuant to Section 5(b)(iii)
<PAGE> 20
EXHIBIT 4
<TABLE>
<CAPTION>
EXECUTIVE TITLE
-----------------------------------------------------------------------------------------------
<S> <C>
Fuller, Marce President, CEO - SEI
Hill, Ray Exec. VP/CFO/Chairman - SEI Asia Group
Pershing, Rick Exec VP/CEO - SEI Americas Group
Eydeland, Alexander VP Research - SCEM
Morsches, Gary President - SCEM
Rush, Barney Senior VP/CEO - SEI Europe
Kuester, Rick Senior VP/CEO - SEI Asia Group
Adams, Ed Exec Director/CFO - SEI Asia Group
Ward, James Senior VP/Controller - SEI Finance, Accounting
Smith, Mike VP/CFO - SCEM
Ragan, John Regional VP - SCEM Eastern Region
Murphy, Sean CEO - SE New England
Booker, Vance Senior VP - Administration and External Affairs SEI
Harreld, Mike CFO - SEI Europe
Holden, Bill VP/Treasurer - SEI
Orr, Bill Regional VP - SCEM Western Region
Turner, Chris VP Commodities - SCEM
Harrelson, Alan VP - SEI Construction
Johnson, Billy VP HR - SCEM
Harrison, Randy CEO - SEI California
Saunders, Phil Business Unit Executive - SEI
Fleming, Gerald VP Power Trading - SCEM
McDonald, Chris Director Gas Trading - SCEM
Coolidge, Henry Exec Director Operation - SEI Asia Group
Maner, Bill VP - SEI
Benfield, Roger Project Management Director - SEI New England
Harris, J.R. VP Operations and Development - SEI SA/Caribbean
Boudreaux, Kevin Director Asset Management - SCEM
Rozier, David VP - SEI Mid-Continent
Gallaspy, David CEO - SEI Texas/Louisiana
Coppola, Jim Director of Tax - SEI
McCallister, Joe Regional Director - SCEM Texas
Dearman, Andrew Senior VP / Chief Technical Officer
</TABLE>
