Exhibit B-3
GPU, Inc.
$300,000,000
7.70% Debentures, Series A due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
December 1, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
ABN AMRO Incorporated
Chase Securities Inc.
First Union Securities, Inc.
As Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GPU, Inc., a corporation organized under the laws of Pennsylvania (the
"Company"), proposes to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representative, $300,000,000 principal amount of its 7.70% Debentures, Series A
due 2005 (the "Securities"), to be issued under an indenture (the "Indenture")
to be dated as of December 1, 2000, between the Company and United States Trust
Company, as trustee (the "Trustee"). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriter, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, a Preliminary 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 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (file number 333-07895) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the offering and
sale of the Securities. The Company has filed one or more amendments
thereto, including a related preliminary prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement, including the form of final prospectus or (2) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Prospectus. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Prospectus
(and any supplements thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as
2
to (i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement, or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto).
(c) The Securities have been duly authorized and will, when issued
and paid for as contemplated in this Agreement and duly authenticated by
the Trustee under the Indenture, be legal, valid and binding obligations
of the Company enforceable in accordance with their terms (except as
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting the enforcement of creditors' rights
and by general principles of equity) and will be entitled to the security
afforded by the Indenture.
(d) The Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at
law).
(e) PricewaterhouseCoopers LLP, the accountants who certified the
financial statements included or incorporated by reference in the
Prospectus, are independent certified accountants with respect to the
Company within the meaning of the Securities Act and the respective rules
thereunder (hereinafter, the "Independent Accountants").
(f) The Company is duly incorporated and validly subsisting as a
corporation in good standing under the laws of the Commonwealth of
Pennsylvania with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business
3
affairs, business prospects or properties of the Company and its
subsidiaries, taken as a whole.
(g) Each of Jersey Central Power & Light Company, Metropolitan
Edison Company, Pennsylvania Electric Company, GPU Capital, Inc., GPU
Electric, Inc., Midlands Electricity plc, EI UK Holdings, Inc., Avon
Energy Partners Holdings and Avon Energy Partners plc (the "Significant
Subsidiaries") is duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs, business prospects or properties of the
Company and its subsidiaries, taken as a whole; all of the issued and
outstanding capital stock of each of the Significant Subsidiaries has been
duly authorized and validly issued, is fully paid and non-assessable and,
other than the preferred stock of the Significant Subsidiaries, is owned
by the Company or one of the other Significant Subsidiaries directly, free
and clear of any security interest, mortgage, pledge, lien or claim. There
are no other subsidiaries of the Company which would be considered a
"significant subsidiary" under Rule 405 of Regulation C under the
Securities Act.
(h) No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the Trust Indenture Act, the Securities Act,
the Public Utility Holding Company Act, or state securities or Blue Sky
laws. The Company possesses such material certificates, authorizations or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct its business as currently
operated.
(i) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no material adverse
change, nor any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business affairs, business prospects or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, and, since such respective dates, there has not been
4
any transaction entered into by the Company or its subsidiaries, which is
material to the Company and its subsidiaries taken as a whole, other than
transactions in the ordinary course of business, except in each case as
set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(j) The consolidated financial statements included or incorporated
by reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its subsidiaries as at
the dates indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement, such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein.
(k) The pro forma financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of Regulation S-X and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(l) Neither the Company nor any of the Significant Subsidiaries is
in violation of its Articles of Incorporation or Certificate of
Incorporation, as the case may be, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of the
Significant Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of
the Significant Subsidiaries is subject, other than as disclosed in or
contemplated by the Registration Statement; and the execution, delivery
and performance of this Agreement and the Indenture and the consummation
of the transactions contemplated herein have been duly authorized by all
necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of the Significant Subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of the Significant Subsidiaries is a party or by
which it or any of them may be bound (including without limitation the
Merger Agreement, dated August 8, 2000 between First Energy Corp. and the
Company), or to which any of the property or assets of the
5
Company or any of the Significant Subsidiaries is subject, nor will such
action result in any violation of the provisions of the Articles of
Incorporation or by-laws of the Company or any applicable law,
administrative or court decree or, to the knowledge of the Company, any
administrative regulation.
(m) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of the Company, overtly threatened, against the Company or any
of the Significant Subsidiaries that is required to be disclosed in the
Registration Statement, or which, if adversely decided, would result in
any material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs, business prospects or properties of the
Company and its subsidiaries, taken as a whole, or which, if adversely
decided, would materially and adversely affect the properties or assets
thereof or would materially and adversely affect the consummation of this
Agreement other than such actions, suits or proceedings which are
disclosed in or contemplated by the Registration Statement; and there are
no contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement by the
Act which have not been so filed.
(n) The Company and the Significant Subsidiaries possess all
required certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies except such as to
which the failure to possess the same would not materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs, business prospects or properties of the Company and its
Significant Subsidiaries, taken as a whole, and neither the Company nor
any of the Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs, business prospects or properties of the Company and its
subsidiaries, taken as a whole, other than as disclosed in or contemplated
by the Registration Statement.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein
6
set forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 99.211% of the principal amount thereof, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 10:00 AM, New York City time, on December 6, 2000, or at such time on
such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required
under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Prospectus,
and any supplement thereto, shall have been filed (if
7
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, (6) of any
order by the Commission directed to the adequacy of any document
incorporated by reference in the Prospectus or of any challenge made by
the Commission as to the adequacy of any such document and (7) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when, in the opinion of counsel for the
Underwriters, a prospectus relating to the Securities is required to be
delivered under the Act, any event occurs as a result of which the
Prospectus as then supplemented would, in the reasonable opinion of the
Company or of counsel for the Underwriters, include any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary, in the reasonable
opinion of the Company or of counsel for the Underwriters, to amend the
Registration Statement or supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the Representatives of such event, (2) prepare
and file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance, and (3) supply any
supplemented Prospectus to the Underwriters in such quantities as the
Representatives may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earning
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
8
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may, in the
opinion of counsel for any of the Underwriters, be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request. With
respect to any delivery of documents occurring no more than nine months
after the first date of public offering of the Securities, the Company
will pay the expenses of printing or other production of all documents
relating to the offering. Should the delivery of prospectuses with respect
to any of the Securities be required more than nine months after the first
date of public offering of the Securities, the Underwriter or dealer
requesting such prospectuses will pay the reasonable expenses of printing
or other production of such prospectuses.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; 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 that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., publicly issue, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
by the Company or any affiliate of the Company) directly or indirectly,
any long-term debt securities issued or guaranteed by the Company (other
than the Securities) or publicly announce an intention to effect any such
transaction, for a period of 60 days after the date of the Underwriting
Agreement.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities.
9
(h) The Company will pay all expenses and taxes (except transfer
taxes) in connection with (1) the preparation and filing by it of the
Registration Statement and all amendments thereto, (2) the issuance and
delivery of the Securities, (3) the qualification of the Securities under
blue-sky laws (including expenses of counsel and counsel fees not to
exceed $7,500), and (4) the printing and delivery to the Underwriters of
reasonable quantities of the Registration Statement and, except as
provided in Section 5(d) hereof, of the Prospectus. The Company shall not,
however, be required to pay any amount for any expenses of the
Underwriters, except as otherwise provided in Section 7. The Company shall
not in any event be liable to the Underwriters for damages on account of
loss of anticipated profits.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (1)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (2) 10:00 AM on the Business Day following the
day on which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b),
the Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇ & Priest
LLP, counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to the
effect that:
(1) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Pennsylvania, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus, and is duly
10
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs, business prospects or
properties of the Company and its subsidiaries, taken as a whole;
the Company has full corporate power and authority to issue and
perform its obligations under the Securities;
(2) the Securities conform in all material respects to the
description thereof contained in the Prospectus;
(3) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity
or at law); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(4) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required;
(5) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the
11
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and
the Registration Statement, at the time it became effective, and the
Prospectus, at the time first filed with the commission pursuant to
Rule 424(b) under the Act (other than (i) the financial statements
and other financial and statistical information contained or
incorporated by reference therein, (ii) the parts of the
Registration Statement that constitute statements of eligibility of
the Trustee and (iii) the information concerning FirstEnergy
contained or incorporated by reference in the Joint Proxy
Statement/Prospectus, as to which such counsel need express no
opinion) complied as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder;
(6) this Agreement has been duly authorized, executed and delivered
by the Company;
(7) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940, as amended;
(8) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained or made under the Act, the Trust Indenture Act
and the Public Utility Holding Company Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus; the consents, approvals, authorizations, filings or
orders which have been obtained or made are adequate to permit the
execution and delivery of this Agreement and the Indenture and the
issuance and sale of the Securities in accordance with this
Agreement;
(9) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, (i) the charter or by-laws of
the Company, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement
12
or other agreement, obligation, condition, covenant or instrument
known to such counsel to which the Company is a party or bound or to
which its property is subject, other than any such conflicts,
breaches, violations or impositions which would not result in any
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs, business prospects or properties
of the Company or (iii) any statute, law, rule, or regulation, or
any judgment, order or decree known to such counsel, applicable to
the Company of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its properties.
In addition, such counsel shall state that it has no reason to believe
that, on the Effective Date, the Registration Statement contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date and on the Closing
Date, included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than (i) the financial statements and
other financial and statistical information contained therein, (ii) the
parts of the Registration Statement that constitute statements of
eligibility of the Trustee, (iii) the information concerning FirstEnergy
contained or incorporated by reference in the Joint Proxy
Statement/Prospectus, and (iv) the information concerning DTC and DTC's
book-entry system included under the subheading "Book-Entry Only Issuance
- The Depository Trust Company", as to which such counsel need express no
view or belief);
In rendering such opinion, such counsel may rely (i) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (ii) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus
in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect to
the
13
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President, or a Vice-President of
the Company, dated the Closing Date, to the effect that:
(1) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date; and
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and no order directed to the adequacy of any document
incorporated by reference in the Prospectus has been issued by the
Commission, and no challenge by the Commission has been made to the
adequacy of any such documents.
(e) The Company shall have requested and caused to have furnished to
the Representatives, at the Closing Date, a letter of the Independent
Accountants, dated as of the Closing Date, in form and substance satisfactory
to the Representatives, confirming (through a specified date not more than
five days prior to the Closing Date) that they are independent accountants
within the meaning of the Act and the Exchange Act and that they have
performed a review of the unaudited interim financial information of the
Company for the three-month period ended March 31, 2000, the three and
six-month periods ended June 30, 2000 and the three and nine-month periods
ended September 30, 3000 and as at December 1, 2000, in accordance with
Statement on Auditing Standards No. 71, and stating in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference
in the Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act;
14
(2) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company;
their limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the unaudited interim
financial information for the three-month period ended March 31,
2000, the three and six-month periods ended June 30, 2000 and the
three and nine-month periods ended September 30, 3000 and as at
December 1, 2000; carrying out certain specified procedures (but not
an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders, the
Boards of Directors and the Executive Committee of the Boards of
Directors of the Company and its subsidiaries as set forth in the
respective minute books since December 31; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to September 30, 2000, nothing
came to their attention which caused them to believe that:
(a) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act
and the Exchange Act with respect to financial statements
included or incorporated by reference in quarterly reports on
Form 10-Q; or that said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus;
(b) with respect to the period subsequent to September
30, 2000, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
consolidated common stock, preferred stock without mandatory
redemption, preferred stock with mandatory redemption or
long-term debt (except for such stock and long-term debt
acquired for sinking fund purposes or redeemed pursuant to
sinking fund provisions, or changes in obligations under
capital leases incurred in the ordinary course of the business
of the Company and its subsidiaries), of the Company and its
subsidiaries, or any decrease in consolidated net assets
(except as
15
occasioned by the declaration of dividends), in each case as
compared with the amounts shown on the September 30, 2000,
consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, or
for the period from October 1, 2000 to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues or net
income, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(c) the information included or incorporated by
reference in the Registration Statement and Prospectus in
response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information) and Item
503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K; and
(3) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries)
included or incorporated by reference in the Registration Statement
and the Prospectus and in Exhibit 12 to the Registration Statement,
including the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's Annual Report
on Form 10-K for 1999 and subsequent Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation ;
and
(4) on the basis of a reading of the unaudited pro forma
financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus (the "pro
forma financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company who have
responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in the pro forma financial statements,
nothing came to their attention which
16
caused them to believe that the pro forma financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been any change, or any development involving a
prospective change, in or affecting the condition, financial or otherwise,
earnings, business affairs, business prospects or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto), the
effect of which, in any case, is, in the judgment of the Representatives, so
material and adverse as to make it impractical to proceed with the offering
or delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
17
The documents required to be delivered by this Section 6 shall be
delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel for the Company, at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on demand for all reasonable out-of-pocket expenses
(including the reasonable fees and disbursements of their counsel) that shall
have been incurred by them in connection with this Agreement or the offering
contemplated hereunder.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange 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, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein;
provided, however, that such indemnity with respect to the Prospectus or any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, liability, claim, damage or expense
purchased the Securities concerned, to the extent that it
18
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company furnished to such Underwriter,
prior to the written confirmation of the sale of the Securities to such
purchasing person, copies of such Prospectus or Preliminary Prospectus
(including, in each case, any amendment or supplement thereto), (x) delivery
of such Prospectus or Preliminary Prospectus was required by the Securities
Act to be made to such person, (y) the untrue statement or omission of a
material fact contained in such Prospectus or Preliminary Prospectus was
corrected in an amendment or supplement to such Prospectus or Preliminary
Prospectus, and (z) there was not sent or given to such person, at or prior
to the written confirmation of the sale of the Securities to such person, a
copy of such Prospectus or Preliminary Prospectus, as then amended or
supplemented (excluding any documents incorporated by reference therein).
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading "Underwriting",
(1) the list of Underwriters and their respective participation in the sale
of the Securities, (2) the sentences related to concessions and reallowances
and (3) the paragraphs related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. In case any such action shall be
19
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which counsel shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not, except as set forth below, thereafter be
responsible for any subsequently incurred fees and expenses (other than
reasonable costs of investigation) of any separate counsel retained by the
indemnified party or parties). Notwithstanding the indemnifying party's
election to assume the defense in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (1) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict
of interest, (2) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (3) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (4) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
20
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is held to be unenforceable to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in
each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. The amount paid or payable by an indemnified party as a result of the
Losses shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim. Notwithstanding the provisions of this
paragraph (d), an Underwriter shall not be required to contribute any amount
in excess of the amount by which the total public offering price at which the
Securities purchased by or through it were sold 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.
Notwithstanding the provisions of this paragraph (d), 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 obligations of each Underwriter under this
paragraph (d) to contribute are several
21
in proportion to the respective purchases made by or through it to which such
Losses relate and are not joint. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to receive contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to receive contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities as to which the purchase default has occurred set forth opposite
their names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(a) trading in any of the Company's securities shall have been suspended by the
Commission or any exchange or in any over-the-counter market or trading in
securities generally shall have been suspended or
22
limited or minimum prices shall have been established on any exchange or
over-the-counter market, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities or (c) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the Representatives,
impractical to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed by mail or delivery to the General Counsel, ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to GPU, Inc., Attention: Vice President and Treasurer
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy thereof to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.,
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder. The
term "successor" as used herein shall not include any purchaser, as such
purchaser, of any of the Securities from any Underwriter.
14. Applicable Law. This Agreement will 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.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
23
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or,
if no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Public Utility Holding Company Act" shall mean the Public Utility
Holding Company Act of 1935, as amended, and the rules and regulations of
the Commission promulgated thereunder.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration
24
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours, GPU, Inc.
By: /s/ ▇. ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
ABN AMRO Incorporated
Chase Securities Inc.
First Union Securities, Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
26
SCHEDULE I
Principal Amount
of Securities to be
Underwriters Purchased
------------ -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $210,000,000
ABN AMRO Incorporated 30,000,000
Chase Securities Inc. 30,000,000
First Union Securities, Inc. 30,000,000
--------------
Total $300,000,000