Exhibit 4(d)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of February 1, 2003 by and among Ohio Power
Company, an Ohio corporation (the "Company"), and the Initial Purchasers (as
hereinafter defined).
This Agreement is made pursuant to the Purchase Agreement dated
February 11, 2003 (the "Purchase Agreement"), by and among the Company, as
issuer of $250,000,000 aggregate principal amount of 5.50% Senior Notes, Series
D due 2013 and $250,000,000 aggregate principal amount of 6.60% Senior Notes,
Series E due 2033 (collectively, the "Notes"), and the Initial Purchasers, which
provides for, among other things, the sale by the Company to the Initial
Purchasers of the aggregate principal amount of Notes specified therein. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company 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:
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Affiliate" has the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(v)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed.
"Closing Date" shall mean February 14, 2003, the initial date of delivery
of the Notes from the Company to the Initial Purchasers.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns. If,
in the event of Legal Separation, Ohio Wires assumes the company's
obligations hereunder, the "Company" shall mean Ohio Wires.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Notes" shall mean the 5.50% Senior Notes, Series F due 2013 and
the 6.60% Senior Notes, Series G due 2033 issued by the Company under the
Indenture containing terms identical in all material respects to the Notes
(except that (i) interest thereon shall accrue from the last date on which
interest was paid or duly provided for on the Notes or, if no such interest has
been paid, from the date of their original issue, (ii) they will not contain
terms with respect to transfer restrictions under the Securities Act, and (iii)
they will not provide for any Special Interest Premium thereon.)
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes held by each such Holder for a like amount
of Exchange Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) of the Company as provided in Section 2(a) hereof, and all amendments and
supplements to such registration statement, in each case 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(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture.
"Indenture" shall mean the Indenture, dated as of February 1, 2003,
between the Company and Bank One, N.A., as trustee, as the same may be amended
or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., Banc of America Securities LLC, ABN AMRO Incorporated, Banc One Capital
Markets, Inc., Barclays Capital Inc., BNY Capital Markets, Inc., McDonald
Investments Inc., TD Securities (USA) Inc., and UBS Warburg LLC.
"Inspectors" shall have the meaning set forth in Section 3(p) hereof.
"Legal Separation" shall mean the transfer of the Company's Transmission
and Distribution Business to Ohio Wires.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Notes or Exchange Notes, as the case may be.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Ohio Wires" shall mean Ohio Wires LLC, a to-be-formed Ohio company
(as of the Closing Date) and the affiliate company to which the Company may
transfer its Transmission and Distribution Business.
"Ohio Wires Exchange Offer" shall mean the offer by Ohio
Wires, upon Legal Separation, to the Holders to exchange all of the Notes or
Exchange Notes held by each such Holder for a like amount of Ohio
Wires Notes pursuant to Section 7 hereof.
"Ohio Wires Notes" shall mean notes of Ohio Wires which are
identical in all material respects to the Notes.
"Ohio Wires Registration" shall mean a registration under the
Securities Act effected pursuant to Section 7 hereof.
"Ohio Wires Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) of Ohio Wires as provided in Section 7 hereof and all
amendments and supplements to such registration, in each case including the
Prospectus contained therein, all exhibits thereto and all documents
incorporated by reference therein.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(v) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof or other legal entity.
"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 a 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 prospectus, including post-effective amendments,
and in each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(p) hereof.
"Registrable Notes" shall mean the Notes, until the earliest to occur of
(a) the date on which any Notes has been exchanged by a Person other than a
Participating Broker-Dealer for Exchange Notes in the Exchange Offer, (b)
following the exchange by a Participating Broker-Dealer in the Exchange Offer of
any Note for one or more Exchange Notes, the date on which such Exchange Notes
are sold to a purchaser in accordance with the Exchange Offer Registration
Statement, (c) the date on which any Note has been registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement and (d) the date on which any Note is eligible to be distributed to
the public pursuant to Rule 144(k) under the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
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 fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters and
Holders as a group in connection with blue sky qualification of any of the
Exchange Notes or Registrable Notes (or, if applicable, Ohio Wires Notes)) and
compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, notes sales agreements and other documents relating
to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) the fees and disbursements of counsel for the Company and of the
independent certified public accountants of the Company and its subsidiaries,
including the expenses of any "cold comfort" letters required by or incident to
the performance of and compliance with this Agreement, (vi) the reasonable fees
and expenses of the Trustee and its counsel and any exchange agent or custodian,
and (vii) the reasonable fees and expenses of any special experts retained by
the Company in connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement and any Ohio Wires Registration Statement, and
all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Representatives" shall mean ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., as representatives of the Initial Purchasers.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Closing Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes (except Registrable Notes which the Holders have
elected not to include in such Shelf Registration Statement or the Holders of
which have not complied with their obligations under the penultimate paragraph
of Section 3 hereof or under the first paragraph of Section 2(b) hereof) on an
appropriate form under Rule 415 under the Securities 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
documents incorporated by reference therein.
"Special Interest Premium" shall have the meaning set forth in Section
2(e) hereof.
"TIA" shall have the meaning set forth in Section 3(m) hereof.
"Transmission and Distribution Business" shall have the meaning set forth
in the Indenture.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act
(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company
shall, for the benefit of the Holders, at the Company's cost, (i) file
with the SEC within 210 calendar days after the Closing Date an Exchange
Offer Registration Statement on an appropriate form under the Securities
Act relating to the Exchange Offer, (ii) use its reasonable best efforts
to cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC not later than the date
which is 270 calendar days after the Closing Date, and (iii) provided such
Exchange Offer Registration Statement has been declared effective under
the Securities Act by the SEC, promptly commence the Exchange Offer and
keep the Exchange Offer open for not less than 30 days, or longer if
required by applicable law, after the date on which such Registration
Statement was declared effective by the SEC (such period referred to
herein as the "Exchange Period") and at the termination thereof,
issue Exchange Notes in exchange for all Registrable Notes tendered prior
thereto in the Exchange Offer.
Each Holder of Registrable Notes to be exchanged in the Exchange
Offer shall be required, as a condition to participating in the Exchange Offer,
to represent that it acquires the Exchange Notes in the ordinary course of such
Holder's business and that it (i) is not an Affiliate of the Company, (ii) does
not hold any Notes to be exchanged for Exchange Notes in the Exchange Offer that
were acquired other than in the ordinary course of business, (iii) is not a
broker-dealer tendering Registrable Notes acquired directly from the Company,
(iv) at the time of the Exchange Offer, has no arrangements or understandings
with any Person to participate in the Exchange Offer for the purpose of
distributing the Exchange Notes.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) utilize the services of the Depositary for the Exchange Offer with
respect to the Notes represented by a global certificate;
(iii) permit Holders to withdraw tendered Registrable Notes at any time
prior to the close of business, New York City time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice to Holders, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Notes delivered for exchange, and a
statement that such Holder is withdrawing his election to have
such Registrable Notes exchanged;
(iv) notify each Holder that any Registrable Note not tendered by such
Holder in the Exchange Offer 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
(v) otherwise comply in all material respects with all applicable laws
and regulations relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Notes or portions thereof duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration
Statement and letter of transmittal;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Notes or portions thereof so accepted for exchange by
the Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Notes equal in
principal amount to the principal amount of the Notes as are
surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer
will accrue from the last date on which interest was paid or duly provided for
on the Note surrendered in exchange therefor or, if no interest has been paid on
such Note, from the date of original issue of such Note. To the extent not
prohibited by any judicial order, judgment, law, regulation or applicable
interpretation of the staff of the SEC, the Company shall use its reasonable
best efforts to complete the Exchange Offer as provided above, and shall comply
with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions other than the conditions
referred to in Section 2(b)(i), (ii) and (iii) below and those conditions that
are customary in similar exchange offers, except as may be required by
applicable law. 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, in
the case of any Holder, representations that (i) it is not an Affiliate of the
Company, (ii) it is not a broker-dealer tendering Registrable Notes acquired
directly from the Company, (iii) the Notes being exchanged, and the Exchange
Notes to be received, by it have been or are being acquired in the ordinary
course of its business and (iv) at the time of the Exchange Offer, it has no
arrangements or understandings with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes.
The Company shall inform the Initial Purchasers, after consultation with the
Trustee, 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 in
order to facilitate the tender of Registrable Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes held by Initial Purchasers and
Participating Broker-Dealers, and the Company shall have no further obligation
to register the Registrable Notes held by any other Holder pursuant to Section
2(b) of this Agreement.
(b) Shelf Registration. If (i) because of any change in law, regulation or in
currently prevailing interpretations thereof by the staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by
Section 2(a) hereof, (ii) the Exchange Offer is not consummated within 300
calendar days after the Closing Date or (iii) any Holder of Registrable
Notes shall notify the Company prior to the 20th calendar day following
the consummation of the Exchange Offer (A) that such Holder was prohibited
by applicable law or SEC policy from participating in the Exchange Offer,
or (B) that such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resale by such Holder, or (C)
that such Holder is a Participating Broker-Dealer and holds Notes acquired
directly from the Company or one of its Affiliates (any of the events
specified in (i), (ii) or (iii) being a "Shelf Registration Event", and
the date of occurrence thereof, the "Shelf Registration Event Date"), then
in addition to or in lieu of conducting the Exchange Offer contemplated by
Section 2(a), as the case may be, the Company shall promptly notify the
Holders in writing thereof and shall, at its cost, file as promptly as
practicable after such Shelf Registration Event Date and, in any event,
within 210 calendar days after such Shelf Registration Event Date, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Notes (other than Registrable Notes owned by Holders who have
elected not to include such Registrable Notes in such Shelf Registration
Statement or who have not complied with their obligations under the
penultimate paragraph of Section 3 hereof or under this paragraph), and
shall use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC as soon as practicable and
in any event, on or before the 270th calendar day after the Shelf
Registration Event Date or, if later, the 300th calendar day after the
Closing Date. No Holder of Registrable Notes shall be entitled to include
any of its Registrable Notes in any Shelf Registration 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 Company in writing, within 15 calendar days after receipt
of a request therefor, such information as the Company 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 to furnish to the Company, without request and as soon as
practicable, all information with respect to such Holder necessary to make
the information previously furnished to the Company by such Holder not
materially misleading.
The Company agrees to use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective and the Prospectus usable
for resales for the earlier of (x) the expiration of the Rule 144(k) Period or
(y) such time as all of the Notes covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
Registrable Notes (the period from the effective date of the Shelf Registration
Statement until the earlier of the events described in clauses (x) or (y) being
the "Effectiveness Period"). The Company shall not permit any securities other
than Registrable Notes to be included in the Shelf Registration. The Company
will, in the event a Shelf Registration Statement is declared effective, provide
to each Holder of Registrable Notes covered thereby, a reasonable number of
copies of the Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration has become effective and
take any other action required to permit unrestricted resales of the Registrable
Notes. The Company further agrees to supplement or amend the Shelf Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement
or by the Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company agrees to furnish to the Holders of
Registrable Notes covered by such Shelf Registration Statement copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with any Registration Statement filed pursuant to Section 2(a) and/or 2(b)
hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP incurred in connection with the
Exchange Offer. Except as provided herein, each Holder shall pay all
expenses of its counsel, 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.
(d) Effective Registration Statement. An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant
to Section 2(b) 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 such Exchange Offer Registration Statement or 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 Exchange Offer Registration Statement or Shelf Registration
Statement will be deemed not to have been effective during the period of
such interference, until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume. The Company 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
it voluntarily takes any action that would result in any such Registration
Statement not being declared effective or that would result in the
otherwise eligible Holders of Registrable Notes covered thereby not being
able to exchange or offer and sell such Registrable Notes during that
period, unless such action is required by applicable law or regulation.
(e) Special Interest Premium. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the SEC
on or prior to the 210th day after the Closing Date, then, commencing
on the 211th calendar day after the Closing Date, a special interest
premium (the "Special Interest Premium") shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum;
(ii) the Exchange Offer Registration Statement is not declared effective
by the SEC on or prior to the 270th calendar day after the Closing
Date, then, commencing on the 271st calendar day after the Closing
Date, a Special Interest Premium shall accrue on the principal amount
of the Notes at a rate of 0.25% per annum;
(iii) (A) the Company has not exchanged Exchange Notes for all Notes
validly tendered, in accordance with the terms of the Exchange Offer,
on or prior to the 300th calendar day after the Closing Date or (B)
if the Shelf Registration Statement is required to be filed pursuant
to Section 2(b) but is not declared effective by the SEC on or prior
to the 300th calendar day after the Closing Date, then, commencing on
the 301st calendar day after the Closing Date, a Special Interest
Premium shall accrue on the principal amount of the Notes at the rate
of 0.50% per annum; or
(iv) the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be continuously effective or
the Prospectus contained in such Shelf Registration Statement ceases
to be usable for resales (A) at any time prior to the expiration of
the Effectiveness Period or (B) if related to corporate developments,
public filings with the SEC or similar events or because the
Prospectus contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, and such
failure continues for more than 90 calendar days (whether or not
consecutive and whether or not arising out of a single or multiple
circumstances) in any twelve-month period, then the Special Interest
Premium shall accrue on the principal amount of the Notes at a rate
of 0.50% per annum commencing on the day that (in the case of (A)
above), or the 91st calendar (cumulative) day after (in the case of
(B) above), such Shelf Registration Statement ceases to be effective
or the Prospectus ceases to be usable for resales; provided, however,
that the aggregate amount of the Special Interest Premium in respect
of the Notes may not exceed 0.50% per annum (regardless of whether
multiple events triggering a Special Interest Premium under this
subsection (e) exist); provided, further, however, that (1) upon the
filing of the Exchange Offer Registration Statement (in the case of
clause (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement (in the case of clause (ii) above), (3) upon
the exchange of Exchange Notes for all Notes validly tendered (in the
case of clause (iii)(A) above) or upon the effectiveness of the Shelf
Registration Statement (in the case of clause (iii)(B) above) and (4)
upon the earlier of (y) such time as the Shelf Registration Statement
which had ceased to remain effective or the Prospectus which had
ceased to be usable for resales again becomes effective and usable
for resales, as applicable, and (z) the expiration of the
Effectiveness Period (in each case of clause (iv) above), the Special
Interest Premium on the principal amount of the Notes as a result of
such clause (or the relevant subclause thereof) shall cease to
accrue.
Any Special Interest Premium due pursuant to Section 2(e)(i), (ii),
(iii) or (iv) above will be payable in cash on the next succeeding February 15
or August 15, as the case may be, to eligible Holders (as determined under this
subsection (e)) on the relevant record dates for the payment of interest
pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to the
Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it would not be possible to measure damages
for such injuries precisely and that, in the event of any such failure,
any Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Section 2(a) and Section 2(b)
hereof. To the extent Legal Separation occurs, a Holder of Notes or
Exchange Notes shall be entitled to the same relief with respect to Ohio
Wires' obligations under Section 7.
3. Registration Procedures. In connection with the obligations of the Company
with respect to the Registration Statements pursuant to Sections 2(a) and 2(b)
(and, if applicable, Section 7) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Sections 2(a) and 2(b) (and, if applicable,
Section 7) hereof within the relevant time period specified in Section 2
(and, if applicable, Section 7) hereof on the appropriate form under the
Securities Act, which form shall (i) be selected by the Company, (ii) in
the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable Notes, and
(iii) comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; and use its reasonable best efforts to cause
such Registration Statement to become effective and remain effective
(and, in the case of a Shelf Registration Statement, the Prospectus to
be usable for resales) in accordance with Section 2 hereof (and, if
applicable, Section 7); provided, however, that if (1) such filing is
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Company shall
furnish to and afford the Holders of the Registrable Notes and each such
Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference therein
and all exhibits thereto) proposed to be filed; and the Company shall not
file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document if the Majority
Holders of the Registrable Notes, depending solely upon which Holders must
be afforded the opportunity of such review, or such Participating Broker-
Dealer, as the case may be, their counsel or the managing underwriters, if
any, shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be, and cause each Prospectus to be
supplemented, if so determined by the Company or requested by the SEC,
by any required prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all Notes covered by
each Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of an Exchange Offer Registration Statement (and, if
applicable, an Ohio Wires Registration Statement) , if in the
reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer (or, if applicable, Ohio Wires
Exchange Offer) is permitted by applicable law, seek a no-action letter or
other favorable decision from the SEC allowing the Company to consummate
an Exchange Offer (or, if applicable, Ohio Wires Exchange
Offer) for such Notes; the Company hereby agrees to pursue the issuance of
such a decision to the SEC staff level but shall not be required to take
commercially unreasonable action to effect a change of SEC policy; the
Company hereby agrees, however, to (i) participate in telephonic
conferences with the SEC, (ii) deliver to the SEC staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer should
be permitted and (iii) diligently pursue a resolution (which need not be
favorable) by the SEC staff of such submission;
(d) in the case of an Exchange Offer Registration Statement, prior to the
effectiveness of such statement, provide a supplemental letter to the SEC
(i) stating that the Company is registering the Exchange Offer in reliance
on the position of the SEC enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co. Inc.
(available June 5, 1991), ▇▇▇▇▇ & Wood LLP (available February 7, 1997)
and, if applicable, any no-action letter obtained pursuant to Section 3(c)
and (ii) including a representation that the Company has not entered into
any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating in
the Exchange Offer is acquiring the Exchange Notes in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the
Exchange Offer;
(e) in the case of a Shelf Registration, (i) notify each Holder of Registrable
Notes included in the Shelf Registration Statement, at least three
Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Notes is being filed and advising such Holder
that the distribution of Registrable Notes will be made in accordance with
the method selected by the Majority Holders of the Registrable Notes, (ii)
furnish to each Holder of Registrable Notes included in the Shelf
Registration Statement 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 amendment or
supplement thereto, and such other documents as such Holder or underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Notes and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Notes included in the Shelf Registration
Statement in connection with the offering and sale of the Registrable
Notes covered by the Prospectus or any amendment or supplement thereto;
(f) in the case of a Shelf Registration, register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions by the time the applicable Registration Statement is
declared effective by the SEC 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 in
advance of such date of effectiveness, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Notes owned by such Holder; provided,
however, that the Company 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(f),
(ii) file any general consent to service of process in any jurisdiction
where it would not otherwise be subject to such service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not
then so subject;
(g) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(v) hereof, are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly
notify each Holder of Registrable Notes, or such Participating Broker-
Dealers, as the case may be, their counsel and the managing underwriters,
if any, and promptly confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments thereto become effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a
Registration Statement or 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 qualification of the
Registrable Notes or the Exchange Notes to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in Section 3(f)
hereof 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 Company
contained in any purchase agreement, securities sales agreement or
other similar agreement cease to be true, correct and complete in all
material respects, (v) of the happening of any event or the failure of any
event to occur or the discovery of any facts, during the Effectiveness
Period, which makes any statement, made in such Registration Statement or
the related Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus to 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, as well as any
other corporate developments, public filings with the SEC or similar
events causing such Registration Statement not to be effective or the
Prospectus not to be useable for resales and (vi) of the reasonable
determination of the Company that a post-effective amendment to the
Registration Statement would be appropriate;
(h) obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement as soon as practicable;
(i) in the case of a Shelf Registration, furnish to each Holder of Registrable
Notes included within the coverage of such Shelf Registration Statement,
without charge, at least one conformed copy of each Registration Statement
relating to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or 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 (except any customary legend borne by securities held
through The Depository Trust Company or any similar depository) and in
such denominations (consistent with the provisions of the Indenture and
supplemental indenture or the officer's certificate establishing the forms
and the terms of the Notes pursuant to the Indenture) and registered in
such names as the selling Holders or the underwriters may reasonably
request (provided such names are consistent with the names of the selling
securityholders set forth in the Shelf Registration Statement) at least
two Business Days prior to the closing of any sale of Registrable Notes
pursuant to such Shelf Registration Statement;
(k) in the case of a Shelf Registration or an Exchange Offer Registration (or,
if applicable, an Ohio Wires Registration), promptly after
the occurrence of any event specified in Section 3(g)(ii), 3(g)(iii),
3(g)(v) (subject to the 90 calendar day cumulative grace period within any
twelve-month period provided for in Section 2(e)(iv)(B)) or 3(g)(vi)
hereof, prepare a supplement or post-effective amendment to such
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,
such Prospectus will not include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and the Company shall 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 the Company has amended or supplemented the Prospectus to correct
such misstatement or omission;
(l) obtain a CUSIP number for the Exchange Notes or the Registrable Notes (or,
if applicable, Ohio Wires Notes), as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with certificates for the Exchange Notes or the Registrable Notes,
as the case may be, in a form eligible for deposit with the Depositary;
(m) 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 (or, if applicable, Ohio
Wires Notes), as the case may be, and effect such changes to such
documents as may be required for them to be so qualified in accordance
with the terms of the TIA and execute, and 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 such
documents to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into such agreements (including
underwriting agreements) as are customary in underwritten offerings and
take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to expedite or facilitate the
registration or the disposition of the Registrable Notes;
(o) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) an Initial Purchaser, in
the case where such Initial Purchaser holds Notes acquired by it as part
of its initial placement, or (y) Holders of at least 25% in aggregate
principal amount of the Registrable Notes covered thereby: (i) make such
representations and warranties to Holders of such Registrable Notes and
the underwriters (if any), with respect to the business of the Company as
then conducted and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii)
obtain opinions of counsel to the Company and updates thereof (which may
be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a
majority in amount of the Registrable Notes being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory
to the managing underwriters from the independent certified public
accountants of the Company, addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and the
managing underwriters) customary for such agreements with respect to all
parties to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders); and in the case of an
underwritten registration, the above requirements shall be satisfied at
each closing under the related underwriting agreement or as and to the
extent required thereunder;
(p) if (1) a Shelf Registration is filed pursuant to Section 2(b) or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) (or, if applicable, an Ohio Wires
Registration Statement filed pursuant to Section 7) is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes (or, if applicable, Ohio Wires
Notes) during the Applicable Period, make reasonably available for
inspection by any selling Holder of Registrable Notes or Participating
Broker-Dealer, as applicable, who certifies to the Company that it has a
current intention to sell Registrable Notes pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder, Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during the Company's normal business hours,
all financial and other records, pertinent organizational and operational
documents and properties of the Company (collectively, the "Records") as
shall be reasonably necessary to enable them to conduct due diligence
activities, and cause the officers, trustees and employees of the Company
to supply all relevant information in each case reasonably requested by
any such Inspector in connection with such Registration Statement; Records
and information which the Company determines, in good faith, to be
confidential and any Records and information which it notifies the
Inspectors are confidential shall not be disclosed to any Inspector except
where (i) the disclosure of such Records or information is necessary to
avoid or correct a material misstatement or omission in such Registration
Statement, (ii) the release of such Records or information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) such Records or information previously has been made
generally available to the public; each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to agree
in writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public through no
fault of an Inspector or a selling Holder; and each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court of
competent jurisdiction, or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its
expense to undertake appropriate action to prevent disclosure of the
Records and information deemed confidential;
(q) comply with all applicable rules and regulations of the SEC so long as any
provision of this Agreement shall be applicable and make generally
available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than
45 calendar days after the end of any 12-month period (or 90 calendar days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods, provided that the obligations under
this paragraph (q) shall be satisfied by the timely filing of quarterly
and annual reports on Forms 10-Q and 10-K under the Exchange Act;
(r) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as
directed by the Company), in exchange for the Exchange Notes, the Company
shall ▇▇▇▇, or cause to be marked, on such Notes delivered by such Holders
that such Notes are being cancelled in exchange for the Exchange Notes; it
being understood that in no event shall such Notes be marked as paid or
otherwise satisfied;
(s) cooperate with each seller of Registrable Notes (or, if applicable,
Ohio Wires Notes) covered by any Registration Statement and
each underwriter, if any, participating in the disposition of such
Registrable Notes and their respective counsel in connection with any
filings required to be made with the NASD;
(t) prior to issuing the Exchange Notes (or, if applicable, Ohio Wires Notes),
obtain all regulatory and governmental approvals necessary for the
issuance of the Exchange Notes, including, without limitation, any
required orders or consents of The Public Utilities Commission of Ohio or
under the Public Utility Holding Company Act of 1935 pertaining to the
Company's capital structure;
(u) take all other steps necessary to effect the registration of the
Registrable Notes (or, if applicable, Ohio Wires Notes)
covered by a Registration Statement contemplated hereby; and
(v) (A) in the case of the Exchange Offer Registration Statement (i) include
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchasers or another representative of the Participating Broker-Dealers,
and which 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 (a "Participating Broker-Dealer") 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 or such other representative,
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
Securities Act in connection with any resale of such Exchange Notes, (ii)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(g), 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 (the Company hereby consents 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
requirements of the Securities Act, 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), (iii)
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
Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply with such
requirements under the Securities Act and applicable rules and regulations
in order to resell the Exchange Notes; provided, however, that such period
shall not be required to exceed 210 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof) (the
"Applicable Period"), 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 Securities 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 Participating Broker-Dealer
making the acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Notes, the
Participating Broker-Dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement (or, if
applicable, an Ohio Wires Registration Statement), the Company agrees to
deliver to the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if reasonably requested by an Initial
Purchaser or such other representative of Participating Broker-Dealers, on
behalf of the Participating Broker-Dealers upon consummation of the
Exchange Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to such Initial Purchaser or such other representative of the
Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration
Statements and such other matters as may be reasonably requested (it being
agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officer's certificate
substantially similar to that specified in Section 7(h) of the Purchase
Agreement and such additional certifications as are customarily delivered
in a public offering of debt Notes and (iii) upon the effectiveness of the
Exchange Offer Registration Statement, comfort letters, in each case, in
customary form if permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes (or, if
applicable, Ohio Wires Notes) as to which any registration is being
effected to furnish to the Company such information regarding such seller as may
be required by the staff of the SEC to be included in a Registration Statement.
The Company may exclude from such registration the Registrable Notes of any
seller who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company shall have no obligation to
register under the Securities Act the Registrable Notes of a seller who so fails
to furnish such information and, notwithstanding anything to the contrary
herein, no Special Interest Premium shall accrue on any such Registrable Notes.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(v) are seeking to sell Exchange Notes and are required to deliver
Prospectuses, each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(g)(ii), 3(g)(iii),
3(g)(v) or 3(g)(vi) 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 or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's 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 or Exchange Notes, as the case may be, current at the time of
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes or Exchange Notes, as the case may be, pursuant
to a Registration Statement, the Company shall use its reasonable best efforts
to file and have declared effective (if an amendment), as soon as practicable
after the resolution of the related matters, an amendment or supplement to the
Registration Statement and shall extend the period during which such
Registration Statement is required to be maintained effective and the Prospectus
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company shall have made available to the Holders (x) copies of
the supplemented or amended Prospectus necessary to resume such dispositions or
(y) the Advice.
4. Indemnification and Contribution
(a) In connection with a Shelf Registration Statement or in connection with
any delivery of a Prospectus contained in an Exchange Offer Registration
Statement (or, if applicable, an Ohio Wires Registration
Statement) by any Participating Broker-Dealer or Initial Purchaser, as
applicable, who seeks to sell Exchange Notes (or, if applicable,
Ohio Wires Notes), to the extent permitted by law, the
Company shall indemnify and hold harmless each Holder of Registrable Notes
included within any such Shelf Registration Statement and each
Participating Broker-Dealer or Initial Purchaser selling Exchange Notes
(or, if applicable, Ohio Wires Notes), its officers and
directors and each Person, if any, who controls any such Person within the
meaning of Section 15 of the Securities Act, against any and all losses,
claims, damages or liabilities, joint or several, to which you, they or
any of you or them may become subject under the Exchange Act or otherwise,
and to reimburse you and such controlling person or persons, if any, for
any legal or other expenses incurred by you or them in connection with
defending any action, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any alleged untrue statement or
untrue statement of a material fact contained in any Registration
Statement or in any Prospectus, or if the Company shall furnish or cause
to be furnished to you any amendments or any supplements to any
Prospectus, in any Prospectus covering Registrable Notes or Exchange Notes
(or, if applicable, Ohio Wires Notes), as applicable, as so
amended or supplemented, or arise out of or are based upon any alleged
omission or omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any such alleged untrue statement or
omission, or untrue statement or omission which was made in a Registration
Statement or in a Prospectus, or in such Prospectus as so amended or
supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by or through any Initial Purchaser or
Participating Broker-Dealer expressly for use therein or with any
statements in or omissions from that part of the Registration Statement
that shall constitute the Statement of Eligibility under the Trust
Indenture Act of any indenture trustee under an indenture of the Company,
and except that this indemnity shall not inure to the benefit of any
Participating Broker-Dealer and Initial Purchaser (or of any person
controlling any Initial Purchaser or Participating Broker-Dealer) on
account of any losses, claims, damages, liabilities or actions
arising from the sale of the Notes to any person if such loss arises from
the fact that a copy of the Prospectus, as the same may then be
supplemented or amended to the extent such Prospectus was provided to such
Initial Purchaser or Participating Broker-Dealer by the Company
(excluding, however, any document then incorporated or deemed incorporated
therein by reference), was not sent or given by such Initial Purchaser or
Participating Broker-Dealer to such person with or prior to the written
confirmation of the sale involved and the alleged omission or alleged
untrue statement or omission or untrue statement was corrected in the
Prospectus as supplemented or amended at the time of such confirmation,
and such Prospectus, as amended or supplemented, was timely delivered to
such Initial Purchaser or Participating Broker-Dealer by the Company.
Each Initial Purchaser or Participating Broker-Dealer agrees promptly
after the receipt by such Initial Purchaser or Participating Broker-Dealer
of written notice of the commencement of any action in respect to which
indemnity from the Company on account of its agreement contained in this
Section 4(a) may be sought by such Initial Purchaser or Participating
Broker-Dealer, or by any person controlling such Initial Purchaser or
Participating Broker-Dealer, to notify the Company in writing of the
commencement thereof, but the omission so to notify the Company of any
such action shall not release the Company from any liability which it
may have to such Initial Purchaser or Participating Broker-Dealer or to
such controlling person otherwise than on account of the indemnity
agreement contained in this Section 4(a). In case any such action shall be
brought against any Initial Purchaser or Participating Broker-Dealer or
any such person controlling any Initial Purchaser or Participating Broker-
Dealer or such Initial Purchaser or Participating Broker-Dealer shall
notify the Company of the commencement thereof, as above provided, the
Company shall be entitled to participate in, and, to the extent that it
shall wish, including the selection for counsel (such counsel to be
reasonably acceptable to the indemnified party), to direct the defense
thereof at its own expense. In case the Company elects to direct such
defense and selects such counsel (hereinafter, Company's counsel), such
Initial Purchaser or Participating Broker-Dealer or any controlling person
shall have the right to employ its own counsel, but in any such case, the
fees and expenses of such counsel shall be at the expense of such
Initial Purchaser or Participating Broker-Dealer or controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses
or (ii) the named parties to any such action (including any impleaded
parties) include both such Initial Purchaser or Participating Broker-
Dealer or any controlling person and the Company and such Initial
Purchaser or Participating Broker-Dealer or any controlling person shall
have been advised by its counsel that a conflict of interest between the
Company and such Initial Purchaser or Participating Broker-Dealer or any
controlling person may arise (and the Company's counsel shall have
concurred in good faith with such advice) and for this reason it is not
desirable for the Company's counsel to represent both the indemnifying
party and the indemnified party (it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
for such Initial Purchaser or Participating Broker-Dealer or any
controlling person (plus any local counsel retained by such Initial
Purchaser or Participating Broker-Dealer or any controlling person in
their reasonable judgment), which firm (or firms) shall be designated in
writing by such Initial Purchaser or Participating Broker-Dealer or any
controlling person).
(b) Each Initial Purchaser or Participating Broker-Dealer agrees, to the
extent permitted by law, severally and not jointly, to indemnify, hold
harmless and reimburse the Company, its directors and such of its officers
as shall have signed any Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act, to the same extent and upon the same terms as the
indemnity agreement of the Company set forth in Section 4(a) hereof, but
only with respect to untrue statements or alleged untrue statements or
omissions or alleged omissions made in a Registration Statement, or in a
Prospectus, or in such Prospectus as amended or supplemented, in reliance
upon and in conformity with information furnished in writing to the
Company by an Initial Purchaser or Participating Broker-Dealer expressly
for use therein. The Company agrees promptly after the receipt by it of
written notice of the commencement of any action in respect to which
indemnity from such Initial Purchaser or Participating Broker-Dealer on
account of your agreement contained in this Section 4(b) may be sought by
the Company, or by any person controlling the Company, to notify such
Initial Purchaser or Participating Broker-Dealer in writing of the
commencement thereof, but the Company's omission so to notify such Initial
Purchaser or Participating Broker-Dealer of any such action shall not
release such Initial Purchaser or Participating Broker-Dealer from any
liability which you may have to the Company or to such controlling person
otherwise than on account of the indemnity agreement contained in this
Section 4(b).
(c) If recovery is not available or insufficient under Section 4(a) or 4(b)
hereof for any reason other than as specified therein, the indemnified
party shall be entitled to contribution for any and all losses, claims,
damages, liabilities and expenses for which such indemnification is so
unavailable or insufficient under this Section 4(c). In determining the
amount of contribution to which such indemnified party is entitled, there
shall be considered the portion of the proceeds of the offering of the
Notes realized, the relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any
equitable considerations appropriate under the circumstances. The Company
and the Holders agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation
(even if the Holders were treated as one entity for such purpose) without
reference to the considerations called for in the previous sentence. No
Initial Purchaser or Participating Broker-Dealer or any person controlling
such Initial Purchaser or Participating Broker-Dealer shall be obligated
to contribute any amount or amounts hereunder which in the aggregate
exceed the total price of the Notes purchased by such Initial Purchaser or
Participating Broker-Dealer less the aggregate amount of any damages which
such Initial Purchaser or Participating Broker-Dealer and its controlling
persons have otherwise been required to pay in respect of the same claim
or any substantially similar claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. An Initial Purchaser's or
Participating Broker-Dealer's obligation to contribute under this Section
4 is in proportion to its purchase obligations under the Purchase
Agreement and not joint with any other Initial Purchaser or Participating
Broker-Dealer.
(d) No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim 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 such indemnified
party.
(e) In no event shall any indemnifying party shall have any liability or
responsibility in respect of the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
The agreements contained in this Section 4 hereof shall remain in
full force and erfect regardless of any investigation made by or on behalf of
any Person.
5. Participation in an Underwritten Registration. No Holder may participate in
an underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Notes on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of
such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes covered by the
Shelf Registration Statement who desire to do so may sell the Notes
covered by such Shelf Registration in an underwritten offering, subject to
the provisions of Section 3(l) hereof. In any such underwritten offering,
the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Legal Separation
(a) The Company may not consummate its Legal Separation unless Columbus
Southern Wires becomes a party to this Agreement and, subject to the
provisions of this Section 7, assumes all of the obligations of the
Company hereunder.
(b) If Legal Separation occurs, Ohio Wires will be obligated to file an
exchange offer registration statement (Ohio Wires
Registration Statement ) and offer a Holder of Notes or Exchange Notes, as
the case may be, the following elections (collectively, Ohio Wires
Exchange Offer):
(i) if Legal Separation occurs prior to the Exchange Offer set forth in
Section 2(a) hereof, a holder of Notes may elect to (i) retain its
Notes or (ii) exchange its Notes for Ohio Wires Notes
registered under the Securities Act; or
(ii) if Legal Separation occurs after the Exchange Offer set forth in
Section 2(a) hereof, a holder of Exchange Notes registered under the
Securities Act may elect to (i) retain its Exchange Notes or (ii)
exchange its Exchange Notes for Ohio Wires Notes
registered under the Securities Act. Additionally, a holder of a Note
(who chose not to exchange its Notes for a registered Exchange Note
pursuant to the Exchange Offer set forth in Section 2(a) hereof) may
elect to (i) retain its Notes or (ii) exchange its Notes for Columbus
Southern Wires Notes registered under the Securities Act.
In the case of Section 7(b)(i) and (ii) above, if a holder of a Note or an
Exchange Note fails to elect to retain such note, unless otherwise required by
law, such Holder will be deemed to have exercised his option to exchange such
note for a registered Ohio Wires Note.
(c) If Legal Separation occurs and a Noteholder elects to retain its Notes,
neither the Company nor Ohio Wires will be obligated to file
an exchange offer registration statement or a shelf registration statement
with respect to such Notes.
(d) In the case of an Ohio Wires Exchange Offer as set forth in
Section 7(b)(i), Ohio Wires will be subject to the same
requirements with respect to filing and effectiveness of the Ohio Wires
Registration Statement and consummation of such exchange offer as provided
in Section 2(a); provided, however, that if Legal Separation occurs more
than 150 days after the Closing Date, the 210, 270 and 300 day periods
commencing with the Closing Date as set forth in Section 2(a) will be
replaced by 60, 120 and 150 day periods, respectively, commencing with the
date of Legal Separation. Special Interest Premium will accrue on the
Notes at the expiration of such 60, 120 and 150 day periods at the same
rates established in Section 2(e)(i), (ii) and (iii) as was the case for
the 210, 270 and 300 day periods. Furthermore, all references to the
211th, 271st and 301st calendar day after the Closing Date shall be deemed
to refer to the 61st, 121st and 151st calendar day after the date of Legal
Separation. If Special Interest Premium is in effect on the date of Legal
Separation, it shall cease to be in effect until the expiration of the 60,
120 and 150 day periods.
(e) In the case of an Ohio Wires Exchange Offer as set forth in
Section 7(b)(ii), Ohio Wires will be subject, notwithstanding
any other provision hereof, with respect to timing, to only the
requirement that it consummate the Ohio Wires Exchange Offer
within 150 days from the date of Legal Separation. Special Interest
Premium will accrue on the Notes at the rate of 0.50% if Ohio Wires
fails to consummate such Ohio Wires Exchange Offer within such 150 days.
8. Miscellaneous Rule 144 and Rule 144A. For so long as the Company is subject
to the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will file the reports required
to be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Notes, (a) make
publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales of its
securities pursuant to Rule 144A under the Securities 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 Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, (ii) Rule 144A under the Securities 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 Company will deliver to such Holder a written statement as to whether
it has complied with such requirements. To the extent Legal Separation occurs,
Ohio Wires shall be subject to the same obligations as discussed
above with respect to Ohio Wires Notes.
(a) No Inconsistent Agreements. The Company has not entered into, nor will the
Company on or 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 without the written consent of Holders of a majority in
aggregate principal amount of the outstanding Registrable Notes. The
rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the
Company's other issued and outstanding securities under any such
agreements. To the extent Legal Separation occurs, Ohio Wires shall be
subject to the same obligations as discussed above with respect to
Ohio Wires Notes.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of Holders
of a majority in aggregate principal amount of the outstanding Registrable
Notes affected by such amendment, modification, supplement, waiver or
departure; provided that no amendment, modification or supplement or
waiver or consent to the departure with respect to the provisions of
Section 4 hereof shall be effective as against any Holder of Registrable
Notes unless consented to in writing by such Holder of Registrable Notes.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Notes, by written
agreement signed by the Company and the Representatives, to cure any
ambiguity, correct or supplement any provision of this Agreement that may
be inconsistent with any other provision of this Agreement or to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented,
and waivers and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company and the Representatives
to the extent that any such amendment, modification, supplement, waiver or
consent is, in their reasonable judgment, necessary or appropriate to
comply with applicable law and regulation (including any interpretation of
the Staff of the SEC) or any change therein, (iii) to the extent any
provision of this Agreement relates to an Initial Purchaser, such
provision may be amended, modified or supplemented, and waivers or
consents to departures from such provisions may be given, by written
agreement signed by such Initial Purchaser and the Company and (iv) this
Agreement may be amended, without the consent of any Holders of
Registrable Notes, by written agreement signed by the Company, Ohio Wires
and the Representatives to include Ohio Wires as a party to and an obligor
under this Agreement.
(c) 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 (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 8(d), which address initially is, with respect
to the Initial Purchasers:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Debt Capital Markets Group
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
and (ii) if to the Company, initially at the Company's address:
Ohio Power Company
c/o American Electric Power Service Corporation
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇, Treasurer
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 8(d).
All such notices and communications shall be deemed to have been
duly given at the time delivered by hand, if personally delivered; five 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, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, 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 or the Indenture. 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 and 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 and such Person shall be
entitled to receive the benefits hereof.
(e) Third Party Beneficiaries. Each Holder of Registrable Notes and Exchange
Notes and any Participating Broker-Dealer shall be third party
beneficiaries of the agreements made hereunder among the Initial
Purchasers and the Company, and the Initial Purchasers 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
such holders hereunder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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.
(j) Notes Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its
Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
OHIO POWER COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Assistant Treasture
Confirmed and accepted as of the date first above written:
For themselves and as Representative of the
several Initial Purchasers
▇▇▇▇▇▇ BROTHERS INC.
By:__/s/ ▇▇▇▇▇▇▇ ▇. Hall_____
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By:__/s/ ▇▇▇▇▇ ▇. Clark_______
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director