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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED):
SEPTEMBER 25, 1996
TNP ENTERPRISES, INC.
STATE OF TEXAS 1-8847 75-1907501
(STATE OF ORGANIZATION) (COMMISSION FILE NO.) (IRS EMPLOYER
IDENTIFICATION NO.)
4100 INTERNATIONAL PLAZA, P.O. BOX 2943, FORT WORTH, TEXAS 76113
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (817) 731-0099
EXHIBIT INDEX IS ON PAGE 4
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ITEM 5. OTHER EVENTS.
COMMON STOCK OFFERING. On September 25, 1996, TNP Enterprises, Inc., a
Texas corporation (the "Company"), executed and entered into an Underwriting
Agreement (the "Underwriting Agreement"), by and among the Company, Smith
Barney Inc., Edward D. Jones & Co., L.P. and Legg Mason Wood Walker, Inc.
The Underwriting Agreement relates to the registration and sale by the Company
of up to 2,000,000 shares of its Common Stock, no par value, pursuant to a
Registration Statement on Form S-3 (Registration No. 333-10957) initially
filed by the Company with the Securities and Exchange Commission on August 28,
1996.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1.1 Underwriting Agreement, dated September 25, 1996, by and among the
Company, Smith Barney Inc., Edward D. Jones & Co., L.P. and Legg
Mason Wood Walker, Inc.
4.1 Form of Common Stock Certificate of the Company.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
TNP ENTERPRISES, INC.
September 27, 1996 By: /s/ M. S. CHEEMA
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Manjit S. Cheema
Vice President and Chief
Financial Officer
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION PAGE
------- ----------- ----
1.1 Underwriting Agreement, dated September 25, 6
1996, by and among the Company, Smith Barney
Inc., Edward D. Jones & Co., L.P. and Legg
Mason Wood Walker, Inc.
4.1 Form of Common Stock Certificate of the Company. 31
4
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EXHIBIT 1.1
1,750,000 Shares
TNP ENTERPRISES, INC.
Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
September 25, 1996
SMITH BARNEY INC.
EDWARD D. JONES & CO., L.P.
LEGG MASON WOOD WALKER, INC.
As Representatives of the Several Underwriters
c/o SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
TNP Enterprises, Inc., a Texas corporation (the "Company"), proposes to
issue and sell an aggregate of 1,750,000 shares (the "Firm Shares") of its
common stock, no par value (the "Common Stock"), to the several Underwriters
named in SCHEDULE I hereto (the "Underwriters"). The Company also proposes to
sell to the Underwriters, upon the terms and conditions set forth in Section 2
hereof, up to an additional 250,000 shares (the "Additional Shares") of Common
Stock. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares".
The Company wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Shares by 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-3 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 execution of
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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 the prospectus in the form included in the
Registration Statement, or, 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 term "Prospectus" as used in this Agreement means
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). The term
"Prepricing 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 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. Any reference in this Agreement to the registration statement,
the Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which at the time
are incorporated by reference in the registration statement, the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment or
supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $23.585 per Share (the
"purchase price per share"), the number of Firm Shares set forth opposite the
name of such Underwriter in SCHEDULE I hereto (or such number of Firm Shares
increased as set forth in Section 10 hereof).
The Company also agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the representations,
warranties and agreements
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of the Company herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Company, at the purchase price per share, pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time, but not more than three times, prior to 9:00 P.M., New York City time, on
the 30th day after the date of the Prospectus (or, if such 30th day shall be a
Saturday or Sunday or a holiday, on the next business day thereafter when the
New York Stock Exchange is open for trading), up to an aggregate of 250,000
Additional Shares. Additional Shares may be purchased only for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. Upon any exercise of the over-allotment option, each Underwriter,
severally and not jointly, agrees to purchase from the Company the number of
Additional Shares (subject to such adjustments as you may determine in order to
avoid fractional shares) which bears the same proportion to the number of
Additional Shares to be purchased by the Underwriters as the number of Firm
Shares set forth opposite the name of such Underwriter in SCHEDULE I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof) bears to
the aggregate number of Firm Shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Payment for the Firm
Shares shall be made at the office of Milbank, Tweed, Hadley & McCloy, One Chase
Manhattan Plaza, New York, NY 10005, at 10:00 A.M., New York City time, on
October 1, 1996 (the "Closing Date") against delivery of the certificates for
the Firm Shares to you at the offices of the Depository Trust Company for the
respective accounts of the Underwriters. The place of closing for the Firm
Shares and the Closing Date may be varied by agreement between you and the
Company.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the same offices as the delivery
of and payment for the Firm Shares at such time on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor earlier than two nor later than ten
business days after the giving of the notice hereinafter referred to, as shall
be specified in a written notice from you on behalf of the Underwriters to the
Company of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Shares may be varied by agreement
between you and the Company.
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Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available Federal (same day) funds to the order of
the Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any material change in the Company's financial condition, business,
properties, net worth or results of operations, or of the happening of any
event, which makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration Statement
or the Prospectus (as then amended or supplemented) in order to state a material
fact required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
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(c) The Company will furnish to you, without charge (i) two signed
copies of the registration statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment thereto, but
without exhibits, as you may reasonably request, (iii) such number of copies of
the Incorporated Documents, without exhibits, as you may reasonably request, and
(iv) four copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior to the
end of the period of time referred to in the first sentence in subsection (f)
below, file any document which, upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the written opinion of counsel for the Underwriters is required to
be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in
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order to comply with the Act or any other law, the Company will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with the
Commission an appropriate supplement or amendment thereto (or to such document),
and will expeditiously furnish to the Underwriters and dealers a reasonable
number of copies thereof. In the event that the Company and you, as
Representatives of the several Underwriters, agree that the Prospectus should be
amended or supplemented, the Company, if required by law in the reasonable
written opinion of counsel for the Underwriters, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for all
out-of-pocket expenses (including the reasonable fees and expenses of counsel
for the Underwriters) reasonably incurred by you in connection herewith.
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(k) The Company will apply the net proceeds from the sale of the
Shares substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock, for a period of 120 days after the
date of the Prospectus, except for (i) rights issued pursuant to the Rights Plan
described in the Prospectus, (ii) shares of Common Stock issued pursuant to the
Plans (defined below), and (iii) issuances of Common Stock upon the exercise of
outstanding options and warrants, without the prior written consent of Smith
Barney Inc.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(o) The Company will use its best efforts to have the shares of
Common Stock which it agrees to sell under this Agreement listed, subject to
notice of issuance, on the New York Stock Exchange on or before the Closing
Date, or any Option Closing Date, as the case may be.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3; at the
time the Registration Statement became or becomes effective, the
Registration Statement and the Prospectus will comply in all material
respects with the provisions of the Act, and the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no warranty or representation
with respect to any statement contained in the Registration Statement or
the Prospectus, or any amendment or supplement thereto, in reliance upon
and in conformity with information concerning the Underwriters and
furnished in writing by or on behalf of any Underwriter through you to the
Company expressly for use
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in the Registration Statement or the Prospectus, or any amendment or
supplement thereto; the documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied in
all material respects with the requirements of the Exchange Act, and at
such time did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(b) The capitalization of the Company is, as of the date specified,
as set forth under the heading "Prospectus Summary -- Summary Consolidated
Financial Information -- Balance Sheet Data" in the Prospectus; all of the
issued and outstanding shares of capital stock including Common Stock of
the Company have been duly authorized and validly issued and are fully paid
and non-assessable and conform to the description thereof contained in the
Prospectus; each of the Company and Texas-New Mexico Power Company, Texas
Generating Company, Texas Generating Company II, Community Public Service
Company and TNP Operating Company (the "Subsidiaries") is a corporation
duly incorporated and validly existing as a corporation in good standing
under the laws of the State of its incorporation, with full corporate power
and authority to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus, and, in the
case of the Company, to execute and deliver this Agreement and to issue and
sell the Shares as herein contemplated; the issuance of the Shares has been
duly authorized and when issued and paid for by the Underwriters pursuant
to this Agreement the Shares will be validly issued and fully paid and non-
assessable and entitled to the rights set forth in the Company's Articles
of Incorporation;
(c) Each of the Company and its Subsidiaries is duly qualified by and
is in good standing in each jurisdiction in which it conducts its business
and in which the failure, individually or in the aggregate, to be so
qualified could have a material adverse effect on the operations, business
or condition of the Company and its Subsidiaries, taken as a whole; all of
the outstanding shares of capital stock of each of the Subsidiaries of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable and the common stock of each Subsidiary is owned directly or
indirectly by the Company, free and clear from any lien, encumbrance or
security interest except as otherwise disclosed in writing to the
Underwriters prior to the date hereof and each of the Company and its
Subsidiaries is in compliance with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions, except for such
non-compliance as would not have a material adverse effect on the
operations, business or condition of the Company and its Subsidiaries,
taken as a whole;
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(d) Neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), (i) its
respective corporate charter or by-laws, or (ii) in the performance or
observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound (except for any
breach or default that would not be material to the Company and the
Subsidiaries, taken as a whole); and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and by the Prospectus will not conflict with, or result
in any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would constitute a breach of, or
default under), or result in the creation or imposition of any lien,
charge, or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to, any provisions of (x) the corporate charter or
by-laws, of the Company or any of its Subsidiaries or (y) under any
provision of any license, indenture, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any federal, state
or local law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries (except for any breach
or default that would not be material to the Company and the Subsidiaries,
taken as a whole);
(e) The filing of the Registration Statement and the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby and by the Prospectus have been duly authorized by the
Company; this Agreement has been duly authorized, executed and delivered by
the Company;
(f) The Shares conform in all material respects to the description
thereof contained in the Registration Statement and Prospectus and the
certificates for the Shares are in due and proper form and the holders of
the Shares will not be subject to personal liability solely by reason of
being such holders;
(g) No approval, authorization, consent or order of or filing with
any federal, state or local governmental or regulatory commission, court,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares as contemplated hereby other than
registration of the Shares under the Act, any necessary qualification under
the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the
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Underwriters and any necessary approval of the underwriting arrangements
between the Company and the Underwriters by the National Association of
Securities Dealers, Inc.;
(h) No person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights, rights
of first refusal or other rights (excluding rights arising under the Rights
Plan described in the Prospectus) to purchase any of the Shares;
(i) KPMG Peat Marwick LLP, whose reports on the consolidated
financial statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus, are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder;
(j) Each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule,
and has obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its business, except for those licenses,
authorizations, consents and approvals the failure to possess which would
not be material to the Company and the Subsidiaries, taken as a whole;
neither the Company nor any of its Subsidiaries is in violation of, or in
default under, any such license, authorization, consent or approval or any
federal, state or local law, regulation or rule or any decree, order or
judgment applicable to the Company or any of its Subsidiaries the effect of
which could have a material adverse effect on the Company and its
Subsidiaries taken as a whole;
(k) All legal or governmental proceedings, contracts or documents of
a character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required;
(l) Except as disclosed in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries or any of their respective properties, at law or in equity,
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, which could result
in a judgment, decree or order having a material adverse effect on the
business, condition or properties of the Company and its Subsidiaries taken
as a whole;
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(m) The financial statements included or incorporated by reference in
the Registration Statement and the Prospectus present and (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will present
fairly, at all times during which a prospectus is required to be delivered
under the Act, the consolidated financial position of the Company and its
Subsidiaries as of the dates indicated and the consolidated results of
operations, changes in shareholders' equity and changes in cash flows of
the Company and its Subsidiaries for the periods specified; such financial
statements have been and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will be, at all times during which a
prospectus is required to be delivered under the Act, prepared in
conformity with generally accepted accounting principles;
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (A) any material change in the financial condition, business,
properties, net worth or results of operations of the Company and its
Subsidiaries taken as a whole, (B) any transaction, which is material to
the Company and its Subsidiaries taken as a whole, entered into by the
Company or any of its Subsidiaries or (C) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company or any of its
Subsidiaries which is material to the Company and its Subsidiaries taken as
a whole;
(o) Each of the Company and its Subsidiaries has good title to all
properties and assets described in the Prospectus as owned by it, free and
clear of all liens, security interests, claims, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not
material to the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries taken as a whole. Each of the Company and its Subsidiaries
has valid, subsisting and enforceable leases for the properties described
in the Prospectus as leased by it, with such exceptions as are not material
to the business, properties, financial condition or results of operations
of the Company and its Subsidiaries taken as a whole and do not materially
interfere with the use made and proposed to be made of such properties by
the Company and its Subsidiaries;
(p) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or
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<PAGE>
indirectly, any action intended, or which might reasonably be expected, to
cause or result, under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares, it being understood that
from time to time the Company issues shares of its Common Stock pursuant to
its Dividend Reinvestment and Stock Purchase Plan and its voluntary thrift
plan (the "Plans");
(q) Prior to the time of purchase, the Firm Shares, and prior to any
additional time of purchase, any Additional Shares, will be duly authorized
for listing by the New York Stock Exchange upon official notice of
issuance; and
(r) The Company has complied with all provisions of Florida Statutes,
517.075, relating to issuers doing business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each of you and each other Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or 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 not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection therewith;
PROVIDED, HOWEVER, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling, or controlled by, such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a reasonably timely basis to
permit such delivery or sending. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
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<PAGE>
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Smith Barney Inc., and that all
such fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Underwriter,
to the extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Prepricing Prospectus, or any amendment or
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<PAGE>
supplement thereto. If any action, suit or proceeding shall be brought against
the Company, any of its directors, any such officer, or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, and any such controlling person shall
have the rights and duties given to the Underwriters by paragraph (b) above.
The foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other 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 underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by
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<PAGE>
any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed 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 pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in SCHEDULE I
hereto (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
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<PAGE>
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall be in effect on the Closing Date or any Option Closing Date and
no proceeding for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission, and any request
of the Commission for additional information (to be included in the registration
statement or the prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any material adverse change, or any development involving
a prospective material adverse change, in or affecting the financial condition,
business, properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your reasonable
opinion, as Representatives of the several Underwriters, would materially
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Company or any officer or director of the Company
which makes any statement made in the Prospectus untrue or which, in the opinion
of the Company and its counsel or the Underwriters and their counsel, requires
the making of any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in your
opinion, as Representatives of the several Underwriters, materially adversely
affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of Haynes
and Boone, LLP, counsel for the Company, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, substantially in the form
attached hereto as Exhibit A:
(d) You shall have received on the Closing Date an opinion of Michael
D. Blanchard Esq., Corporate Secretary and General Counsel for the Company,
dated the Closing Date and addressed to you, as Representatives of the several
Underwriters, substantially in the form attached hereto as Exhibit B.
(e) You shall have received on the Closing Date an opinion of Rubin,
Katz, Salazar, Alley & Rouse, New Mexico counsel for the Company, dated the
Closing Date and addressed to
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you, as Representatives of the Several Underwriters, substantially in the form
attached hereto as Exhibit C.
(f) You shall have received on the Closing Date an opinion of
Fenemore Craig, Arizona counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the Several Underwriters, substantially
in the form attached hereto as Exhibit D.
(g) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters,
substantially in the form attached hereto as Exhibit E.
(h) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from KPMG Peat Marwick LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
(i) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) except for
the redemption of the Company's Series L 10.50% First Mortgage Bonds due 2000
and any related refinancings, there shall not have been any material change in
the capital stock of the Company nor any material increase in the short-term or
long-term debt of the Company (other than in the ordinary course of business)
from that set forth or contemplated in the Registration Statement or the
Prospectus (or any amendment or Supplement thereto); (iii) there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material adverse change
in the financial condition, business, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; (iv) except for
any refinancings in connection with the redemption of the Company's Series L
10.50% First Mortgage Bonds due 2000, the Company and the Subsidiaries shall not
have any liabilities or obligations (whether or not in the ordinary course of
business) that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on and as of the date hereof and on
and as of the Closing Date as if made on and as of the Closing Date, and you
shall have received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief financial officer of the Company (or such
other officers as are acceptable to you), to the
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<PAGE>
effect set forth in this Section 8(i) and in Section 8(j) hereof.
(j) The Company shall not have failed at or prior to the Closing Date to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(k) Prior to the Closing Date the Shares shall have been listed, subject to
notice of issuance, on the New York Stock Exchange.
(l) The Company shall have furnished or caused to be furnished to you such
further certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (i) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c) through
(g) shall be revised to reflect the sale of Additional Shares.
9. EXPENSES. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation by the Company, printing or
reproduction, and filing with the Commission of the registration statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
registration statement, each Prepricing Prospectus, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Shares but not exceeding nine (9) months after the effective date of the
Registration Statement; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Shares, including any stamp taxes
in connection with the original issuance and sale of the Shares; (iv) the
printing (or reproduction) and delivery of this
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Agreement, the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Shares; (v) the listing of the Shares on the New York Stock
Exchange; (vi) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification) but not exceeding nine (9)
months after the effective date of the Registration Statement; (vii) the filing
fees and the reasonable fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (viii) the transportation and other reasonable
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; and (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in SCHEDULE I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Smith Barney Inc., to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or
refuse to purchase Shares which it or they are obligated to purchase on the
Closing Date and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares
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which the Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such Shares
by one or more non-defaulting Underwriters or other party or parties approved by
you and the Company are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in SCHEDULE I hereto who, with
your approval and the approval of the Company, purchases Shares which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York or Texas shall
have been declared by either federal or state authorities, or (iii) there shall
have occurred any outbreak or escalation of hostilities or other international
or domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your reasonable judgment, impracticable or inadvisable to
commence or continue the offering of the Shares at the offering price to the
public set forth on the cover page of the Prospectus or to enforce contracts for
the resale of the Shares by the Underwriters. Notice of such termination may be
given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
front cover, and the statements in the first and third paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on
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behalf of the Underwriters through you as such information is referred to in
Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 4100 International Plaza, Fort Worth, Texas 76109, Attention:
Michael D. Blanchard, Esq., Corporate Secretary and General Counsel; or (ii) if
to you, as Representatives of the several Underwriters, care of Smith Barney
Inc., 388 Greenwich Street, New York, New York 10013, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
TNP ENTERPRISES, INC.
By /s/ M. S. Cheema
-------------------------
Vice President and Chief
Financial Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
SMITH BARNEY INC.
EDWARD D. JONES & CO., L.P.
LEGG MASON WOOD WALKER, INC.
As Representatives of the Several Underwriters
By SMITH BARNEY INC.
By /s/ James Hempstead
-------------------
Vice President
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SCHEDULE I
TNP ENTERPRISES, INC.
Number of
Underwriter Firm Shares
----------- -----------
Smith Barney Inc. 583,334
Edward D. Jones & Co., L.P. 583,333
Legg Mason Wood Walker, Inc. 583,333
---------
Total 1,750,000
---------
---------
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<PAGE>
EXHIBIT 4.1
FORM OF COMMON STOCK CERTIFICATE
TNP ENTERPRISES, INC.
COMMON STOCK, NO PAR VALUE
[Graphic/Image Material - The Form of Common Stock Certificate contains certain
drawings, decorative patterns and a copy of the Company's logo]
SEE REVERSE SIDE FOR CERTAIN SUMMARY INFORMATION AS TO RIGHTS TO WHICH THE
HOLDER OF THIS CERTIFICATE MAY BE ENTITLED IN CERTAIN EVENTS AND AS TO CERTAIN
RESTRICTIONS ON TRANSFER AND ABILITY OF A RIGHTS HOLDER TO EXERCISE SUCH RIGHTS.
THIS CERTIFICATE IS TRANSFERABLE IN DALLAS, TEXAS, CLEVELAND, OHIO, AND NEW
YORK, NEW YORK.
CUSIP 872594 10 6
INCORPORATED UNDER THE LAWS OF THE STATE OF TEXAS
This certifies that _____________ is the owner of ___________ full-paid
and non-assessable shares of the Common Stock of TNP Enterprises, Inc.,
transferable on the books of the Company by the holder in person or by duly
authorized attorney, upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall be
subject to the provisions of the Certificate of Incorporation, as amended, of
the Company, to all of which the holder by acceptance hereof assents. This
Certificate is not valid unless countersigned by the Transfer Agent and
registered by the Registrar.
In Witness Whereof, the said Corporation has caused this certificate to
be signed by its duly authorized officers and its corporate seal to be
hereunto affixed.
Dated: ________________ [SEAL]
Countersigned and registered:
SOCIETY NATIONAL BANK, Transfer Agent and Registrar
By: Authorized Signature
------------------------,
- -----------------------------
President
- -----------------------------
Secretary
<PAGE>
[FORM OF REVERSE SIDE OF CERTIFICATE]
TNP ENTERPRISES, INC.
Full statements of the designations, preferences, limitations and relative
rights of the shares of each class of stock of the Company, the variations in
the relative rights and preferences of the shares of each series of Preferred
Stock so far as the same have been fixed and determined, and the authority of
the Board of Directors to fix and determine the relative rights and preferences
of subsequent series thereof, as well as the limitations or denials of
preemptive rights of shareholders to acquire unissued or treasury shares of the
Company, are set forth either in the Articles of Incorporation of the Company or
in Resolutions, if any, of the Board of Directors of the Company fixing and
determining the relative rights and preferences of series of Preferred Stock,
copies of which are on file with the office of the Secretary of State of Texas
and copies of which may be obtained without charge upon request to the Company
at Fort Worth, Texas.
Cumulative voting for Directors. The Articles of Incorporation, in
summary, expressly prohibit cumulative voting for directors by the holders of
common and preferred stock.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- As Joint Tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________ -- Custodian _____________
(Cust) (minor)
under Uniform Gifts to Minors Act ____________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ___________ hereby sell, assign and transfer unto
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(Please insert social security or other identifying number of assignee)
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(please print or typewrite name and address, including zip code, as assignee)
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Shares of the Common Stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint ___________________________________
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Attorney to transfer the said stock on the books of the within-named Company
with full power of substitution in the premises.
Dated: ____________________
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Notice: The signature to this assignment must
correspond with the name as written
upon the face of the certificate in
every particular, without alteration
or enlargement or any change whatever.
This Certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement dated as of October 24, 1988, as from
time to time amended (the "Rights Agreement"), the terms of which are
incorporated herein by this reference and a copy of which is on file at the
principal executive offices of TNP Enterprises, Inc. Under certain
circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may expire, may be amended or may be evidenced by separate
certificates and no longer be evidenced by this Certificate. TNP Enterprises,
Inc. will mail to the holder of this Certificate a copy of the Rights Agreement
without charge within five business days after receipt of a written request
therefor. Under certain circumstances as set forth in the Rights Agreement,
Rights beneficially owned by an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement) and any subsequent
holder of such Rights may become null and void.
