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Title: |
Distribution Agreement |
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Entities: |
Banc One Capital Markets, Inc.; Puget Energy, Inc.; Puget Sound Energy Inc; Bank One Corp. |
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Date: |
2003 |
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Size: |
Preview shows 10KB of 112KB total |
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Price: |
$50 |
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ID: |
#1377156 |
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DISTRIBUTION AGREEMENT
July 10, 2003
Banc One Capital Markets, Inc.
1 Bank One Plaza
21st Floor, Suite 1L1-0491
Chicago, IL 60670
Attention: Sudheer Tegulapalle
Ladies and Gentlemen:
Puget Energy, Inc., a Washington corporation (the Company), confirms its agreement with Banc One Capital Markets, Inc., as agent (you or the Agent) with respect to the issuance and sale from time to time by the Company, in the manner and subject to the terms and conditions described below, up to an aggregate of 3,500,000 shares (the Maximum Number of Shares) of common stock, $0.01 par value per share (the Common Stock), of the Company. Such shares are hereinafter collectively referred to as the Shares. The Shares are described in the Prospectus referred to below.
The Company has filed with the Securities and Exchange Commission (the Commission) a registration statement on Form S-3 (No. 333-82940-02) for the registration of at least the Maximum Number of Shares, under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Act), and the offering of the Shares from time to time in accordance with Rule 415 under the Act, and, if necessary, the Company will file such post-effective amendments thereto as may be required prior to any sale of Shares by the Company. Such registration statement has been declared effective by the Commission and is referred to herein (as it may be amended from time to time, if applicable) as the Registration Statement. The final prospectus and all applicable amendments or supplements thereto, in the form first furnished to the Agent, are collectively referred to herein as the Prospectus. All references to the Registration Statement and the Prospectus also shall be deemed to include all documents incorporated therein by reference pursuant to the Securities Exchange Act of 1934, as amended (the 1934 Act); provided, that if the Company files a registration statement with the Commission pursuant to Rule 462(b) under the Act (the Rule 462(b) Registration Statement), then, after such filing, all references to the Registration Statement also shall be deemed to include the Rule 462(b) Registration Statement. A preliminary prospectus shall be deemed to refer to any prospectus used before the registration statement became effective and any prospectus furnished by the Company after the registration statement became effective which omitted information to be included in a form of prospectus filed with the Commission pursuant to Rule 424(b) under the Act. For purposes of this Agreement, all references to the Registration Statement, Prospectus or preliminary prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (EDGAR).
-1-
The Company and the Agent agree as follows:
1. Issuance and Sale.
| (a) | Upon the basis of the representations and warranties and subject to the terms and conditions set forth herein and provided the Company provides the Agent with any due diligence materials and information requested by the Agent necessary for the Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, (A) with respect to purchases by the Agent as principal, the Company and the Agent shall enter into an agreement regarding the number of Shares to be purchased by the Agent and the manner in which and other the terms upon which such sale is to occur (each such transaction being referred to as a Principal Transaction), and (B) with respect to purchases by the Agent as agent, the Company and the Agent shall enter into an agreement regarding the number of Shares to be placed by the Agent and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an Agency Transaction). As used in this Agreement, (i) the Term shall be the period commencing on the date hereof and ending on the earlier of (x) December 31, 2004, (y) the date on which the Maximum Number of Shares have been issued and sold pursuant to the Agreement and (z) the termination of this Agreement pursuant to Section 9 or 10 (the Termination Date), (ii) an Exchange Business Day means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) Exchange means the New York Stock Exchange, Inc. |
| (b) | Subject to the terms and conditions set forth below, the Company appoints the Agent as Agent in connection with the offer and sale of Shares in any Agency Transactions entered into hereunder. The Agent will use commercially reasonable efforts to sell such Shares in accordance with the terms and conditions hereof and of the applicable Transaction Notice (as defined below). The Company and the Agent agree that any Shares, the placement of which the Agent arranges, shall be placed by such Agent in reliance on the representations, warranties, covenants and agreements of the Company contained herein and shall be subject to the terms and conditions set forth herein and in the applicable Transaction Notice. The Agent shall not have any obligation to enter into an Agency Transaction and shall only be obligated to endeavor, as provided herein and in the applicable Transaction Notice, to place Shares issued by the Company if and when such an Agency Transaction is entered into between the Agent and the Company pursuant to Section 3 below. |
| (c) | Except in the case of an Agency Transaction executed pursuant to Section 1(d) below, following acceptance of a Transaction Notice by the Company, the Agent will communicate to the Company, orally, each offer to purchase Shares solicited by such Agent on an agency basis. The Agent shall have the right, in its sole discretion, reasonably exercised, to reject any proposed purchase of Shares, as a whole or in part, by persons solicited by the Agent and any such rejection shall not be deemed a breach of the Agreement contained herein. The Company may accept |
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