Registration Rights Agreement Dated as of May 21, 2007 between Jersey Central Power & Light Company, as Issuer and Barclays Capital Inc., UBS Securities LLC, Wachovia Capital Markets, LLC, as Representatives of the Initial Purchasers
Exhibit
10.1
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Dated
as of
May 21, 2007
between
Jersey
Central
Power & Light Company,
as
Issuer
and
Barclays
Capital Inc.,
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|
UBS
Securities
LLC,
|
|
X.X.
Xxxxxx
Securities Inc. and
|
|
Wachovia
Capital Markets, LLC,
|
|
as
Representatives of the Initial Purchasers
|
This
Registration
Rights Agreement (the “Agreement”) is made and entered into this 21st
day of May, 2007,
by and between Jersey Central Power & Light Company, a New Jersey
corporation (the “Issuer”) and Barclays Capital Inc. (“Barclays”),
UBS Securities LLC (“UBS”), X.X. Xxxxxx Securities Inc.
(“JPMorgan”) and Wachovia Capital Markets, LLC
(“Wachovia”), as representatives of the Initial Purchasers (as
defined below).
This
Agreement is
made pursuant to the Purchase Agreement, dated May 16, 2007 (the “Purchase
Agreement”), between the Issuer and Barclays, UBS, JPMorgan and Wachovia, as
representatives of the Initial Purchasers, which provides for the sale by the
Issuer to the Initial Purchasers $250,000,000 aggregate principal amount of
the
Company’s 5.65% Senior Notes due 2017 (the “2017 Notes”) and $300,000,000
aggregate principal amount of the Company’s 6.15% Senior Notes due 2037 (the
“2037 Notes” and, together with the 2017 Notes, 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:
“2017
Exchange
Notes” shall mean, collectively, the Issuer’s 5.65% Exchange Senior Notes
due 2017 containing terms identical to the 2017 Notes 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
2017 Notes in exchange for Registrable Notes of such series pursuant to the
Exchange Offer.
“2037
Exchange
Notes” shall mean, collectively, the Issuer’s 6.15% Exchange Senior Notes
due 2037 containing terms identical to the 2037 Notes 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
2037 Notes in exchange for Registrable Notes of such series pursuant to the
Exchange Offer.
“2017
Notes”
shall have the meaning set forth in the preamble to this Agreement.
“2037
Notes”
shall have the meaning set forth in the preamble to this Agreement.
“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,
providedfurther, 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
Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.
“Exchange
Notes” shall mean the 2017 Exchange Notes and the 2037 Exchange
Notes.
“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 Securities 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 between the Issuer and The Bank of New York Trust Company, N.A., as
successor 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 the initial purchasers named in Schedule 1 to the
Purchase Agreement.
“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, UBS, JPMorgan and Wachovia 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
prospectus, including pre-effective and 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.
“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 or otherwise
become effective under the Securities 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 Securities 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).
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“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 hereof.
“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
documents 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.
“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 2.2 hereof.
“Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Issuer pursuant to the provisions of Section 2.2 hereof which covers all of
the
Registrable Notes, of each series, 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.
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“Trustee”
shall mean the trustee with respect to the Notes under the
Indenture.
2. Registration
Under the Securities Act.
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 Securities 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 Securities 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 Securities Act and without material
restrictions under the securities laws of a majority of the several states
of
the United States.
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 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
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(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 Securities
Act for such period of time as such Participating Broker-Dealers must comply
with such requirements in order to resell the Exchange Notes; provided, however,
that (i) such period shall be the lesser of 90 calendar 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) hereof) 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 calendar 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) hereof).
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 Securities Act)
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 Securities
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 Securities Act) 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 Securities 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 Xxxxxx Xxxxxxx 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 Securities Act in connection with the
secondary resale transaction and that such a secondary resale transaction should
be covered by an effective registration statement 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
Securities 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.
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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 or otherwise become 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 a 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 Securities 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 Securities 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.
The
Issuer further
agrees, if necessary, to supplement or amend the Shelf Registration Statement,
as required by Section 3(b) hereof, 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 calendar 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 hereof. 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.
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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
or
otherwise becoming 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 or otherwise become
effective under the Securities Act; provided, however, that if, after it has
been declared or otherwise become 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 or does not otherwise become effective
on
or prior to the date that is 210 calendar 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 calendar days after the Closing Date, until the Exchange
Offer is consummated or the Shelf Registration Statement is declared effective
by the SEC or has otherwise become effective; provided, that in the case of
a
Shelf Registration Statement, if the Issuer is unable to cause 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 or otherwise became
effective.
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 hereof, on the appropriate form under the Securities 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 Securities 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 Securities Act and comply with the
provisions of the Securities 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;
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(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 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 or has otherwise become effective under the Securities Act, 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 or an Exchange
Offer Registration Statement is being utilized pursuant to Section 2.1(f) hereof
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;
8
(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 “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 Securities 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) hereof, 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
you are a
participating broker-dealer that will receive Exchange Notes
for
your own account
in exchange for Original Notes as a result of
market-making
activities or other trading activities, you acknowledge
that
you will
deliver a Prospectus meeting the requirements of the
Securities
Act in
connection with any resale of such Exchange Notes;”
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 Securities 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;
(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;
9
(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, or in the case of an Exchange Offer Registration Statement, upon the
occurrence of any event or the discovery of any facts, each as contemplated
by
Sections 3(e)(ii), 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 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;
10
(iii) if
requested by any
selling Holder of Registrable Notes or underwriter, obtain “cold comfort”
letters and updates thereof from the independent registered public accounting
firm of the Company who have certified the financial statements and any other
entity included or incorporated by reference in the Registration Statement
addressed to the such 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, substance 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
(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.
11
(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 Securities 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
Securities Act. Each Holder as to which any Shelf Registration is
being effected agrees to furnish 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 or an Exchange Offer 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.
12
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 Securities
Act
or Section 20 of the Exchange 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 Securities Act or any related Prospectus or any
related Issuer Free Writing Prospectus (as that term is defined in Rule
433(h)(1) under the Securities Act), 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.
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 Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity contained in Section 4.1
hereof, but only with reference to written information relating to such Holder,
Initial Purchaser, Participating Broker-Dealer or Underwriter furnished in
writing 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 Section 4.1 or 4.2 hereof 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 Section 4.1 or 4.2 hereof, 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 Section 4.1 or 4.2 hereof 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 Section 4.1 or 4.2 hereof. 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 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.
13
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 4.1 or 4.2 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) and (y) the total amount of Interest (as defined in
Section 2.5 hereof) 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, 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
Securities 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 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 5, 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
14
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 Securities Act or Section 20 of the Exchange 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 Securities Act or Section 20 of the Exchange 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 Exchange Act, the Issuer covenants
that
it 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. 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 Securities Act,
(b) deliver such information to a prospective purchaser as is necessary to
permit sales 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 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
of
each series determined on a series by series basis and (ii) Participating
Broker-Dealers holding a majority in aggregate principal amount of the Exchange
Notes of each series held by all Participating Broker-Dealers determined on
a
series by series basis, 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 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 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.
15
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.
16
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:
|
S-1
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Confirmed
and
accepted as
|
|
of
the date
first above written:
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BARCLAYS
CAPITAL INC.
|
|
By:___________________________________
|
|
Name:
|
|
Title:
|
|
UBS
SECURITIES
LLC
|
|
By:___________________________________
|
|
Name:
|
|
Title:
|
|
By:___________________________________
|
|
Name:
|
|
Title:
|
|
X.X.
XXXXXX
SECURITIES INC.
|
|
By:___________________________________
|
|
Name:
|
|
Title:
|
|
WACHOVIA
CAPITAL MARKETS, LLC
|
|
By:___________________________________
|
|
Name:
|
|
Title:
|
|
Acting
as
representatives of the Initial
Purchasers.
|
S-2
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(s) T-1, as to which we need express no opinion),
comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations promulgated under the
Securities 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.
Exh.
A
