EXECUTION COPY
EXHIBIT 4(b)
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 23, 2004
between
Jersey Central Power & Light Company,
as Issuer
and
Barclays Capital Inc. and
UBS Securities LLC
as Representatives of the Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 23rd day of April, 2004, by and between Jersey Central Power &
Light Company, a Pennsylvania corporation (the "Issuer") and Barclays Capital
Inc. and UBS Securities LLC, as representatives of the Initial Purchasers (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
April 23, 2004 (the "Purchase Agreement"), between the Issuer and the Initial
Purchasers, which provides for the sale by the Issuer to the Initial Purchasers
of $300,000,000 aggregate principal amount of the Issuer's 5.625% Senior Notes
due 2016 (the "Notes"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Issuer has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer, provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City
of New York and, provided further, that if the Notes are not held in
book-entry form, references herein to the Depositary shall be deemed to
refer to the Holders.
"Exchange Notes" shall mean the Issuer's [ ]% Exchange Senior Notes
due [ ] containing terms identical the $300,000,000 aggregate principal
amount of the Issuer's [ ]% Senior Notes due [ ] in all material respects
(except in each case for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to
Holders of Notes in exchange for Registrable Notes pursuant to the
Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Issuer of
Exchange Notes for Registrable Notes pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Holder" shall mean any beneficial owner from time to time of
Registrable Notes (including any of the Initial Purchasers, for so long as
it owns any Registrable Notes).
"Indenture" shall mean the Senior Note Indenture relating to the
Notes, dated as of July 1, 1999 among the Issuer, and The Bank of New
York, successor to United States Trust Company of New York, as trustee, as
the same may be amended, supplemented, waived or otherwise modified from
time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Barclays Capital Inc., UBS
Securities LLC, Credit, BNY Capital Markets, Inc. and Suisse First Boston
LLC.
"Issuer" shall have the meaning set forth in the preamble and shall
also include the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Notes of each series; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or any Affiliate
(as defined in the Indenture) of the Issuer shall be disregarded in
determining whether such consent or approval was given by the Holders of
such required percentage amount.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall mean Barclays Capital Inc. and
UBS Securities LLC and any other broker-dealer which makes a market in the
Notes and exchanges Registrable Notes in the Exchange Offer for Exchange
Notes.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including any
such prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Notes covered by a Shelf Registration
Statement, and by all other amendments and supplements to a
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prospectus, including pre-effective and post-effective amendments, and in
each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Notes" shall mean the Notes of any Holder; provided,
however, that such Notes shall cease to be Registrable Notes when (i) a
Registration Statement with respect to such Notes shall have been declared
effective under the 1933 Act and such Notes shall have been disposed of
pursuant to such Registration Statement, (ii) such Notes are eligible for
resale to the public pursuant to Rule 144 (or any similar provision then
in force, but not Rule 144A) under the 1933 Act, (iii) such Notes shall
have ceased to be outstanding or (iv) the Exchange Offer is consummated
(except in the case of Notes purchased from the Issuer and continued to be
held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuer with this Agreement, regardless
of whether a Registration Statement becomes effective, including without
limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to
be retained by any Holder of Registrable Notes in accordance with the
rules and regulations of the NASD, (ii) all reasonable fees and expenses
incurred in connection with compliance with state securities or blue sky
laws and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Notes or Registrable
Notes and any filings with the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Notes on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Issuer and of the independent
public accountants of the Issuer, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and expenses
of the Initial Purchasers in connection with the Exchange Offer, including
the reasonable fees and expenses of counsel to the Initial Purchasers in
connection therewith, and (ix) any reasonable fees and disbursements of
the underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts
retained by the Issuer in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Notes by a Holder,
it being understood that in no event shall the Issuer be liable for the
fees and expenses of more than one counsel (in addition to any local
counsel) in connection with registration pursuant to either Section 2.1 or
2.2.
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"Registration Statement" shall mean any registration statement of
the Issuer which covers any of the Exchange Notes or Registrable Notes
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including pre-effective
and post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" shall mean the United States Securities and Exchange
Commission or any successor agency or government body performing the
functions currently performed by the United States Securities and Exchange
Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuer pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Notes, of each series, on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
2.1 Exchange Offer. The Issuer shall (A) prepare and, as soon as
practicable following the Closing Date, file with the SEC an Exchange Offer
Registration Statement with respect to a proposed Exchange Offer and the
issuance and delivery to the Holders, in exchange for the Registrable Notes of
each series, a like principal amount of Exchange Notes of such series, (B) use
its reasonable best efforts to cause the Exchange Offer Registration Statement
to be declared effective under the 1933 Act not later than 180 calendar days
following the Closing Date, (C) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts to cause the Exchange
Offer to be consummated within 210 calendar days following the Closing Date. The
Exchange Notes will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Issuer shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Notes for Exchange Notes
(assuming that such Holder (a) is not an affiliate of the Issuer within the
meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Notes acquired directly from the Issuer for its own account, (c)
acquired the Exchange Notes in the ordinary course of such Holder's business and
(d) has no arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing the Exchange Notes) to transfer
such Exchange Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a majority of the several states of the United States.
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In connection with the Exchange Offer, the Issuer shall:
(a) mail to the Depositary a copy of the Prospectus forming part of
the Exchange Offer Registration Statement together with an appropriate
letter of transmittal and related documents;
(b) use its reasonable best efforts to keep the Exchange Offer open
for acceptance for a period of not less than 20 business days after the
date notice thereof is mailed to the Depositary (or longer if required by
applicable law) (such period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Notes at any
time prior to 5:00 p.m. (Eastern Time) on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal, the principal amount of Registrable Notes
delivered for exchange, and a statement that such Holder is withdrawing
his election to have such Notes exchanged;
(e) notify the Depositary that any Registrable Notes not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(i) accept for exchange all Registrable Notes duly tendered
and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration
Statement and the letter of transmittal which shall be an exhibit
thereto;
(ii) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
the respective Exchange Notes to each Holder of Registrable Notes so
accepted for exchange in a principal amount equal to the principal
amount of the Registrable Notes of such Holder so accepted for
exchange.
The Issuer shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by all Participating Broker-Dealers subject to the prospectus delivery
requirements of the 1933 Act for such period of time as such Participating
Broker-Dealers must comply with such requirements in order to resell the
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Exchange Notes; provided, however, that (i) such period shall be the lesser of
90 days after the consummation of the Exchange Offer and the date on which all
Participating Broker-Dealers have sold all Exchange Notes held by them (unless
such period is extended pursuant to Section 3(k) below) and (ii) the Issuer
shall make such Prospectus, and any amendment or supplement thereto, available
to any such Participating Broker-Dealer for use in connection with any resale of
any Exchange Notes for a period of the lesser of 90 days after the consummation
of the Exchange Offer and the date on which all Participating Broker-Dealers
have sold all Exchange Notes held by them (unless such period is extended
pursuant to Section 3(k) below).
Interest on the Exchange Notes of each series will accrue from the
most recent interest payment date to which interest has been paid on the
respective Registrable Notes surrendered in exchange therefor or, if no interest
has been paid on such Registrable Notes, from the Closing Date. The Exchange
Offer shall not be subject to any conditions, other than (i) that the Exchange
Offer, or the making of any exchange by a Holder, does not violate applicable
law or any applicable interpretation of the staff of the SEC, (ii) the due
tendering of Registrable Notes in accordance with the Exchange Offer, (iii) that
each Holder of Registrable Notes exchanged in the Exchange Offer shall have
represented (x) that all Exchange Notes to be received by it shall be acquired
in the ordinary course of its business (y) that it is not an affiliate of the
Issuer and (z) that at the time of the consummation of the Exchange Offer it
shall have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Notes and
shall have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form
S-4 or other appropriate form under the 1933 Act available and (iv) that no
action or proceeding shall have been instituted or threatened in any court or by
or before any governmental agency with respect to the Exchange Offer which, in
the judgment of the Issuer, would reasonably be expected to impair the ability
of the Issuer to proceed with the Exchange Offer. The Issuer shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable Notes in
the Exchange Offer. Each Holder of Registrable Notes who wishes to exchange such
Registrable Notes for Exchange Notes in the Exchange Offer will be required to
make certain customary representations in connection therewith, including
representations that (i) that all Exchange Notes to be received by it were
acquired in the ordinary course of its business, (ii) that it is not an
affiliate of the Issuer and (iii) that at the time of the consummation of the
Exchange Offer it shall have no arrangement or understanding with any person to
participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the
Exchange Notes and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available. Each Holder hereby acknowledges and agrees that any Participating
Broker-Dealer and any such Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes: (1) could not under SEC policy as in effect
on the date of this Agreement rely on the position of the SEC enunciated in
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the SEC's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters (including
any no-action letter obtained based on the representation in clause (i) above),
and (2) must comply with the registration and prospectus delivery requirements
of the 1933 Act in connection with the secondary resale transaction and that
such a secondary resale transaction should be covered by an effective
registration statement
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containing the selling security holder information required by Items 507 and
508, as applicable, of Regulation S-K, the SEC standard instructions for filing
forms under the 1933 Act, if the resales are of Exchange Notes obtained by such
Holder in exchange for Notes acquired by such Holder directly from the Issuer or
an affiliate of the Issuer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Issuer is not permitted to effect the Exchange Offer as contemplated by
Section 2.1 hereof, (ii) if for any other reason (A) the Exchange Offer
Registration Statement is not declared effective within 180 calendar days
following the Closing Date or (B) the Exchange Offer is not consummated within
210 calendar days after the Closing Date (provided that the Issuer is not then
actively pursuing such effectiveness or consummation, as the case may be), (iii)
upon the written request of the Initial Purchasers with respect to any
Registrable Notes which it acquired directly from the Issuer, (iv) upon the
written request of any Holder that either (A) is not permitted pursuant to
applicable law, SEC rules and regulations or applicable interpretations thereof
by the staff of the SEC to participate in the Exchange Offer or (B) participates
in the Exchange Offer and does not receive fully tradable Exchange Notes
pursuant to the Exchange Offer, or (v) if the Issuer so elects, then in case of
each of clauses (i) through (v) the Issuer shall, at its cost:
(a) As promptly as practicable, file with the SEC, and thereafter
shall use its reasonable best efforts to cause to be declared effective as
promptly as practicable but no later than 180 calendar days after the
Closing Date, a Shelf Registration Statement relating to the offer and
sale of the Registrable Notes by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders participating in the Shelf Registration and set forth in such
Shelf Registration Statement.
(b) Use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming
part thereof to be usable by Holders for a period ending on the earliest
of (i) two years from the Closing Date, (ii) the date on which the
Registrable Notes become eligible for resale without volume limitations
pursuant to Rule 144 under the 1933 Act, or (iii) for such shorter period
that will terminate when all Registrable Notes of each series covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Notes.
(c) Notwithstanding any other provisions hereof, use its reasonable
best efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
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 (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements, in light of the circumstances under which they were
made, not misleading.
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The Issuer further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, as required by Section 3(b) below, and to furnish
to the Depositary copies of any such supplement or amendment as promptly as
reasonably practicable after its being used or filed with the SEC.
No Holder of Registrable Notes shall be entitled to include any of
its Registrable Notes in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder agrees in writing to be bound by all of
the provisions of this Agreement applicable to such Holder and furnishes to the
Issuer in writing, within 15 days after receipt of a request therefor, such
information as the Issuer may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to be included
in such Shelf Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected agrees
promptly to furnish to the Issuer all information with respect to such Holder
necessary to make the information previously furnished to the Issuer by such
Holder not materially misleading.
2.3 Expenses. The Issuer shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Shelf Registration Statement.
2.4 Effectiveness. (a) The Issuer will be deemed not to have used
its reasonable best efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if the Issuer voluntarily takes
any action that would, or omits to take any action which omission would, result
in any such Registration Statement not being declared effective or in the
Holders of Registrable Notes covered thereby not being able to exchange or offer
and sell such Registrable Notes during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Notes pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become
effective during the period of such interference until the offering of
Registrable Notes pursuant to such Registration Statement may legally
resume.
2.5 Interest. The Notes will provide that if the Exchange Offer is
not consummated and the Shelf Registration Statement is not declared effective
on or prior to the date that is 210 days after the Closing Date, the interest
rate on the Notes will be increased by 0.25% per annum commencing on the date
that is 210 days after the Closing Date, until the Exchange Offer is consummated
or the Shelf Registration Statement is declared effective by the SEC; provided,
that in the case of a Shelf Registration Statement, if the Issuer is unable to
cause
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such Shelf Registration Statement to become effective because Holders of
Registrable Notes have not provided information with respect to themselves as
required by law to be included therein pursuant to the Issuer's request as
provided herein, such 0.25% increase in the interest rate shall be payable only
to Holders that have furnished such information required by law to be included
therein to the Issuer pursuant to its request hereunder from but excluding the
date such information is provided to the Issuer to but excluding the date the
Shelf Registration Statement is declared effective by the SEC.
2.6 Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Issuer acknowledges that any failure
by the Issuer to comply with its obligations under Sections 2.1 and 2.2 hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Issuer's obligations under
Sections 2.1 and 2.2 hereof.
3. Registration Procedures. In connection with the obligations of
the Issuer with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Issuer shall:
(a) prepare and file with the SEC a Registration Statement, within
the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Issuer, (ii)
shall in the case of a Shelf Registration, be available for the sale of
the Registrable Notes by the selling Holders thereof, (iii) shall comply
as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act, and use its best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act and comply with the provisions of
the 1933 Act applicable to them with respect to the disposition of all
securities covered by each Registration Statement during the applicable
period in accordance with the intended method or methods of distribution
by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify the Depositary,
at least five (5) business days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Notes is being filed and
advising the Depositary that the distribution of Registrable Notes will be
made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to the Depositary
and to each underwriter of an underwritten offering of Registrable Notes,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any
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amendment or supplement thereto and such other documents as the Depositary
or underwriter may reasonably request, including financial statements and
schedules and, if the Depositary so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable Notes;
and (iii) hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Notes in
connection with the offering and sale of the Registrable Notes covered by
the Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Notes covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Notes shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, and do any and
all other acts and things which may be reasonably necessary or advisable
to enable each such Holder and underwriter to consummate the disposition
in each such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that the Issuer shall not be required to (i) qualify as
a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(d), or (ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction where it is not then so
subject;
(e) notify promptly each Holder of Registrable Notes under a Shelf
Registration or any Participating Broker-Dealer who has notified the
Issuer that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below, and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii)
of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Notes covered thereby, the representations and warranties of
the Issuer contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects, (v) of the
happening of any event or the discovery of any facts during the period a
Shelf Registration Statement is effective which makes any statement made
in such Registration Statement or related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading, and (vi) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification of the
Registrable Notes or the Exchange Notes, as the case may be, for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(f) in the case of the Exchange Offer Registration Statement (i)
include in the Prospectus contained in the Exchange Offer Registration
Statement a section entitled
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"Plan of Distribution" which section shall be reasonably acceptable to the
Initial Purchasers or another representative of the Participating
Broker-Dealers and shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that holds Registrable
Notes acquired for its own account as a result of market-making activities
or other trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes to be
received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable judgment of the
Initial Purchasers and their counsel, represent the prevailing views of
the staff of the SEC, including a statement that any such broker-dealer
who receives Exchange Notes for Registrable Notes pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of
such Exchange Notes, (ii) furnish to each Participating Broker-Dealer who
has delivered to the Issuer the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the Exchange
Offer Registration Statement, including any preliminary prospectus, and
any amendment or supplement thereto, as such Participating Broker-Dealer
may reasonably request, (iii) hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment
or supplement thereto, by any person subject to the prospectus delivery
requirement of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
"if the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting
the requirements of the 1933 Act in connection with
any resale of Exchange Notes received in respect of
such Registrable Notes pursuant to the Exchange
Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
1933 Act;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Notes, copies of any comment
letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
11
(i) in the case of a Shelf Registration, furnish to the Depositary,
and each underwriter, if any, without charge, at least one conformed copy
of each Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents
incorporated therein by reference and all exhibits thereto, unless
requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends; and enable such Registrable Notes to be
in such denominations (consistent with the provisions of the Indenture)
and registered in such names as the selling Holders or the underwriters,
if any, may reasonably request at least three (3) business days prior to
the closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections
3(e)(ii), 3(e)(iv), 3(e)(v) and 3(e)(vi) hereof, use its best efforts to
prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes or Participating
Broker-Dealers, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and notify each
Holder to suspend use of the Prospectus as promptly as practicable after
the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until such time as such Holder has received from the
Issuer an amended or supplemented Prospectus correcting such misstatement
or omission;
(l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Initial Purchasers on
behalf of such Holders; and make representatives of the Issuer as shall be
reasonably requested by the Holders of Registrable Notes, or the Initial
Purchasers on behalf of such Holders, available for discussion of such
document;
(m) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates
for the Exchange Notes or the Registrable Notes, as the case may be, in a
form eligible for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes or Registrable Notes, as the case may
be, (ii) cooperate with the Trustee and the Holders to effect such changes
to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA, and (iii) execute, and use its
best
12
efforts to cause the Trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of
such Registrable Notes and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Notes and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by them;
(ii) obtain opinions of counsel to the Issuer and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority in principal amount of the
Registrable Notes of each series being sold) addressed to each
selling Holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants who have certified the
financial statements and any other entity included or incorporated
by reference in the Registration Statement addressed to the
underwriters, if any, and use reasonable efforts to have such letter
addressed to the selling Holders of Registrable Notes (to the extent
consistent with SAS 72), such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten
offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be
in form, substances and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Sections 4 and 5 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Sections or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and
13
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a majority in principal amount of the
Registrable Notes of each series being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereof) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder;
(p) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Notes and
any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Issuer reasonably requested by
any such persons and use its reasonable best efforts to cause the
respective officers, directors, employees, and any other agents of the
Issuer to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection
with a Registration Statement, and make such representatives of the Issuer
available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers;
(q) (i) in the case of an Exchange Offer Registration Statement,
within a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Initial Purchasers and make such changes in any such document prior to the
filing thereof as the Initial Purchasers may reasonably request and,
except as otherwise required by applicable law, not file any such document
in a form to which the Initial Purchasers on behalf of the Holders of
Registrable Notes shall reasonably object; and
(ii) in the case of a Shelf Registration, within a reasonable
time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Depositary, to
the Initial Purchasers, to counsel on behalf of the Holders and to
the underwriter or underwriters of an underwritten offering of
Registrable Notes, if any, make such changes in any such document
prior to the filing thereof as the Initial Purchasers, the counsel
to the Holders or the underwriter or underwriters reasonably request
and not file any such document in a form to which the Majority
Holders or the Initial Purchasers on behalf of the Holders of
Registrable Notes or any underwriter may reasonably object and make
the representatives of the Issuer available for discussion of such
document as shall be reasonably requested by the Holders of
Registrable Notes, the Initial Purchasers on behalf of such Holders,
or any underwriter.
14
(r) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Notes to be listed on any securities
exchange on which similar debt securities issued by the Issuer are then
listed if requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any;
(s) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Notes to be rated by the appropriate
rating agencies, if so requested by the Majority Holders, or if requested
by the underwriter or underwriters of an underwritten offering of
Registrable Notes, if any;
(t) otherwise comply with all applicable rules and regulations of
the SEC and make available to security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
(u) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any
due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(v) in the case of any Exchange Offer Registration Statement, upon
consummation of an Exchange Offer,
(A) obtain a customary opinion of counsel to the Issuer
addressed to the Trustee for the benefit of all Holders of Registrable
Notes participating in the Exchange Offer, and which includes an opinion
that (i) the Issuer has duly authorized, executed and delivered the
Exchange Notes and the Indenture and (ii) each of the Exchange Notes and
the Indenture constitute a legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with its respective
terms (with customary exceptions); and
(B) deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if requested by the
Initial Purchasers or such other representative of the Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers (i) an
opinion of counsel or opinions of counsel substantially in the form
attached hereto as Exhibit A and (ii) an officers' certificate
substantially in the form customarily delivered in a public offering of
debt securities.
In the case of a Shelf Registration Statement, the Issuer may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Issuer such information regarding
the Holder and the proposed distribution by such Holder of such Registrable
Notes as the Issuer may from time to time reasonably request in writing for use
in connection with any Shelf Registration Statement or Prospectus included
therein, including, without limitation, information specified in Item 507 of
Regulation S-K under the 1933 Act. Each Holder as to which any Shelf
Registration is being effected agrees to furnish
15
promptly to the Issuer all information required to be disclosed with respect to
such Holder in order to make any information with respect to such Holder
previously furnished to the Issuer by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice directly or indirectly from the Issuer of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Issuer, such Holder will deliver
to the Issuer (at its expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Notes current at the time of receipt of such notice.
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Notes included in such
offering and shall be acceptable to the Issuer. No Holder of Registrable Notes
may participate in any underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder's Registrable Notes on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting agreement.
4. Indemnification.
4.1 Indemnification by the Issuer. The Issuer agrees to indemnify
and hold harmless each Initial Purchaser, its directors and officers, each
Holder, each Participating Broker-Dealer, each Person who participates as an
underwriter (any such Person being an "Underwriter") and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities that arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement pursuant to which Exchange Notes or Registrable Notes
were registered under the 1933 Act or any Prospectus, or 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, and agrees to reimburse
each Initial Purchaser and each controlling person, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage or liability, except insofar as such
losses, claims, damages or liabilities arise out of or are based upon any such
untrue statement or alleged untrue statement or omission or alleged omission or
are based upon information furnished in writing to the Issuer by any Initial
Purchaser, Holder, Participating Broker-Dealer or Underwriter with respect to
such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as
the case may be, specifically for inclusion therein. Notwithstanding the
foregoing, any indemnification with respect to any Registration Statement or
Prospectus shall not inure to the benefit of any Initial Purchaser (or any such
controlling person), Holder, Participating Broker-Dealer or Underwriter from
whom the person asserting any such loss, claim, damage or liability purchased
the Exchange Notes or
16
Registrable Notes, to the extent that any such loss, claim, damage or liability
occurs under the circumstances where (w) the Issuer has previously furnished
copies of such Registration Statement or Prospectus (in each case, excluding the
documents incorporated by reference therein) to such Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter, (x) the untrue statement or omission
of a material fact contained in such Registration Statement or Prospectus (in
each case, excluding the documents incorporated by reference therein) was
corrected in an amendment or supplement to such Registration Statement or
Prospectus, (y) delivery of such Registration Statement or Prospectus was
required by the 1933 Act to be made to such Person, and (z) there was not sent
or given to such Person, at or prior to the written confirmation of the sale of
the Exchange Notes or Registrable Notes to such Person, a copy of such
Registration Statement or Prospectus (in each case, excluding the documents
incorporated by reference therein), as amended or supplemented. This indemnity
agreement will be in addition to any liability which the Issuer may otherwise
have.
4.2 Indemnification by the Holders, Initial Purchasers,
Participating Broker-Dealers and Underwriters. Each Holder, each Initial
Purchaser, each Participating Broker-Dealer and each Underwriter severally, but
not jointly, agrees to indemnify and hold harmless the Issuer, each other
Initial Purchaser, each other Participating Broker-Dealer, each other
Underwriter and each other selling Holder, and each of their respective
directors and officers, and each Person, if any, who controls the Issuer, any
Initial Purchaser, any Participating Broker-Dealer, any Underwriter, or any
other selling Holder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act to the same extent as the foregoing indemnity contained in
subsection 4.1 above, but only with reference to written information relating to
such Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter
furnished to the Issuer by such Holder, Initial Purchaser, Participating
Broker-Dealer or Underwriter specifically for inclusion in the Shelf
Registration Statement or such Prospectus; provided, however, that no such
Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter shall be
liable for any claims hereunder in excess of the amount of net proceeds received
by such Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter
from the sale of Registrable Notes pursuant to such Shelf Registration
Statement. This indemnity agreement will be in addition to any liability which
such Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter may
otherwise have.
4.3 Actions Against Parties; Notification. Promptly after receipt by
an indemnified party under this Section 4 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 4, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party (i) will not relieve it from any liability under subsection
4.1 or 4.2 above unless and to the extent such failure results in the loss by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in subsection 4.1 or
4.2 above. In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded upon advice of
17
counsel 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. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
counsel for all such indemnified parties. Such counsel shall be designated in
writing by the Representatives in the case of parties indemnified pursuant to
the second preceding paragraph, and by the Company in the case of parties
indemnified pursuant to the first preceding paragraph.
4.4 Settlement Without Consent. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there has been a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. 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 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 any
statement as to, or any admission of, fault, culpability or failure to act by or
on behalf of any indemnified party.
5. Contribution. In the event that the indemnity provided for in
Section 4 hereof is held by a court to be unavailable, in whole or in part, to
hold harmless an indemnified party for any reason, then each applicable
indemnifying party shall have several and not joint obligation 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 such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the offering of the Notes, the Exchange Notes or the Registrable
Notes and the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is held by a court to
be unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party on the
one hand and of such indemnified party on the other hand in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Issuer shall be
deemed to be equal to the sum of (x) the total net proceeds from the offering
(before deducting expenses) as set forth on the cover page of the Offering
Memorandum and (y) the total amount of Interest (as defined in Section 2.5)
which the Issuer was not required to pay as a result of registering the
securities covered by the Registration Statement which resulted in the Losses.
Benefits received by the Initial Purchasers shall be deemed to be equal to the
total discounts and commissions as set forth on the cover page of the Offering
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Notes, Exchange Notes or Registrable Notes, as
applicable, registered under the 1933 Act. Benefits received by any
Participating Broker-Dealer shall be deemed to be equal to the total commissions
relating to the market-making and exchange of Registrable Notes for Exchange
Notes. Benefits received by any Underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as
18
set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information provided by the indemnifying party on the one hand or by
the indemnified party on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten by
it and distributed to the public were offered to the public exceeds the amounts
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission; nor shall any Participating Broker-Dealer be required to contribute
any amount in excess of the amount by which the total price at which the Notes
exchanged for Exchange Notes by it were offered to the public exceeds the
amounts of any damages which such Participating Broker-Dealer has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission; nor, shall any Underwriter in the case of a Shelf
Registration Statement be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it exceeds
the amounts 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. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or any other method of allocation that
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 5, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 5, each person, if any, who controls a
Holder, an Initial Purchaser, a Participating Broker-Dealer or an Underwriter,
in each case, within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, shall have the same rights to contribution as such Holder, Initial
Purchaser, Participating Broker-Dealer or Underwriter, as the case may be, and
each officer of the Issuer who shall have signed the Registration Statement,
each director of the Issuer and each person, if any, who controls the Issuer
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Issuer.
6. Miscellaneous.
6.1 Rule 144 and Rule 144A. For so long as the Issuer is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Issuer
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Issuer ceases to be so
required to file such reports, the Issuer covenants that it will upon the
request of any Holder of Registrable Notes (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable Notes
without registration under the
19
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the 1933 Act, as such Rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Notes, the Issuer will deliver to such Holder a
written statement as to whether it has complied with such requirements. The
Issuer agrees to comply with the information obligations to the extent that they
are required by applicable law or regulation.
6.2 No Inconsistent Agreements. The Issuer has not entered into and
the Issuer will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the Holders of the Issuer's other issued and outstanding Notes
under any such agreements.
6.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of consents to departures from the provisions hereof
may not be given unless the Issuer has obtained the written consent of (i)
Holders of a majority in aggregate principal amount of the outstanding
Registrable Notes and (ii) Participating Broker-Dealers holding a majority in
aggregate principal amount of the Exchange Notes held by all Participating
Broker-Dealers, in each case to the extent affected by such amendment,
modification, supplement, waiver or departure.
6.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to the Depositary, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or if The Depository Trust Company is no longer the Depositary, at the most
current address given by the Depositary to the Issuer by means of a notice given
in accordance with the provisions of this Section 6.4; (b) if to a Holder, at
the most current address given by such Holder to the Issuer by means of a notice
given in accordance with the provisions of this Section 6.4, which address
initially is the address set forth in the Purchase Agreement with respect to the
Initial Purchasers; and (c) if to the Issuer initially at the Issuer's address
set forth in the Purchase Agreement, and thereafter at such other address of
which notice is given in accordance with the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; two (2)
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
20
6.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders and Participating Broker-Dealers; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking any
holding such Registrable Notes such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
6.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Notes) shall be third party
beneficiaries to the agreements made hereunder between the Issuer, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder. Each Holder
of Registrable Notes shall be a third party beneficiary to the agreements made
hereunder between the Issuer, on the one hand, and the Initial Purchasers, on
the other hand, and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights hereunder.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
6.10 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
JERSEY CENTRAL POWER & LIGHT COMPANY,
as Issuer
By: __________________________________
Name:
Title:
Confirmed and accepted as of the date
first above written:
BARCLAYS CAPITAL INC.
By: __________________________________
Name:
Title:
UBS SECURITIES LLC
By: __________________________________
Name:
Title:
Acting as representatives of the Initial Purchasers.
S-1
Exhibit A
Form of Opinion of Counsel
We are of the opinion that the Exchange Offer Registration Statement
and the Prospectus (other than the financial statements, notes or schedules
thereto and other financial data and supplemental schedules included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which we need express no opinion), comply as to form in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
In addition, we have participated in conferences with officers and
other representatives of the Issuer, representatives of the independent public
accountants of the Issuer and representatives of the Initial Purchasers, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although we are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and have not made any
independent check or verification thereof, during the course of such
participation, no facts came to our attention that caused us to believe that the
Registration Statement or any amendment thereto, at the time the Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, at the time the Prospectus
was issued, at the time any such amended or supplemented Prospectus was issued
or at the Closing Date, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that we express no belief with respect to
the financial statements and schedules and other financial data included in the
Registration Statement and the Prospectus.