EXHIBIT 99.4
ORION POWER HOLDINGS, INC.
COMMON STOCK, $.01 PAR VALUE
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Underwriting Agreement
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November 13, 2000
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
As Independent Underwriter
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Orion Power Holdings, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 24,279,032 shares and, at the election of the Underwriters, up
to 4,125,000 additional shares of common stock, $.01 par value ("Stock") of
the Company and the stockholders of the Company named in Schedule II hereto
(the "Selling Stockholders") propose, subject to the terms and conditions
stated herein, to sell to the Underwriters an aggregate of 3,220,968 shares
of Stock, with each Selling Stockholder selling the number of Shares
indicated on Schedule II hereto. The aggregate 27,500,000 of shares to be
sold by the Company and the Selling Stockholders is herein called the "Firm
Shares" and the aggregate of 4,125,000 additional shares to be sold by the
Company is herein called the "Optional Shares". The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section
2 hereof are herein collectively called the "Shares".
The Company and the Underwriters, in accordance with the requirements
of Rule 2720 ("Rule 2720") of the National Association of Securities
Dealers, Inc. (the "NASD") and subject to the terms and conditions stated
herein, also hereby confirm the engagement of the services of Xxxxxx
Xxxxxxx & Co. Incorporated (the "Independent Underwriter") as a "qualified
independent underwriter" within the meaning of Section (b)(15) of Rule 2720
in connection with the offering and sale of the Shares.
1. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters and the Independent Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-44118)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 6(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; such form of final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not 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, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. or by the Independent
Underwriter expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Items 7
and 11(m) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. or by the Independent
Underwriter expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Items 7
and 11(m) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest unaudited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material change in the capital
stock, stockholders' equity or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as
a whole (a "Material Adverse Effect"), otherwise than as set forth or
contemplated in the Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all material real property and good and
marketable title to all material personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and
its subsidiaries except as described in the Prospectus;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, and each subsidiary
of the Company has been duly incorporated, organized or formed and is
validly existing as a corporation, partnership or limited liability
company, as the case may be, in good standing under the laws of its
jurisdiction of incorporation, organization and formation;
(vii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
Stock contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except for the security interests granted pursuant
to the New York Credit Facility and the Midwest Credit Facility, as
set forth in the Prospectus and for such liens, encumbrances, equities
or claims that would not have a Material Adverse Effect;
(viii)The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and
free of pre-emptive or similar rights and will conform to the
description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company
hereunder and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) will not result in
any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company and (iii) will not result in any violation of
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; except in the
cases of clauses (i) and (iii) as would not, singly or in the
aggregate, have a Material Adverse Effect; and no consent, approval,
authorization, order, registration, filing or qualification of or with
any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except as such have been
obtained, including the approval of the Federal Energy Regulatory
Commission ("FERC"), the registration under the Act of the Shares and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its Certificate of Incorporation or Certificate of
Formation, as applicable, or by-laws, partnership agreement or limited
liability company agreement, as applicable, or (ii) in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except in the case of clause (ii) as would not, singularly or in the
aggregate, have a Material Adverse Effect;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
a summary of the terms of the Stock and under the captions
"Underwriting," "Risk Factors- We are subject to stringent
governmental regulation, which may be burdensome or lead to
significant costs or liabilities," "Risk Factors- We have agreed to
provide all of the energy required by Duquesne Light Company to
satisfy its provider of last resort obligation, which could result in
significant losses to us," "Business" and "Certain Relationships and
Related Party Transactions" insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect on the
current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened by governmental authorities or threatened by others against
the Company or any of its subsidiaries;
(xiii)The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such
term is defined in the United States Investment Company Act of 1940,
as amended (the "Investment Company Act");
(xiv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xv) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(xvi) Neither the Company nor any of its subsidiaries experienced
any material problems in connection with the Year 2000 Issue. In
addition, to the Company's knowledge, no third parties with which the
Company or any of its subsidiaries has a material relationship
experienced any material problem in connection with the Year 2000
Issue. The "Year 2000 Issue" as used herein means any significant
issue or problem experienced or associated with computer hardware or
software used in the receipt, transmission, processing, manipulation,
storage, retrieval, retransmission or other utilization of data or in
the operation of mechanical or electrical systems of any kind with
respect to dates or time periods occurring after December 31, 1999;
(xvii) The Company and its subsidiaries have complied in all
material respects with all laws, regulations and orders applicable to
it or its businesses the violation of which would have a Material
Adverse Effect;
(xviii) The Company and its subsidiaries own, license or possess
or have the right to use or acquire the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names (collectively, the "Intellectual Property") presently
employed by them in connection with, and material to, collectively or
in the aggregate, the operation of the businesses now operated by them
taken as a whole, and neither the Company nor any of its subsidiaries
has received any written notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect;
(xix) The Company and its subsidiaries possess all certificates,
authorizations, licenses or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them the lack of which would not result in a Material Adverse Effect
and have not received any written notice of proceedings relating to
the revocation or modification of any such certificate, authorization,
license or permit that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect other than as set forth in the Prospectus;
(xx) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company is
imminent that is reasonably likely to have a Material Adverse Effect;
(xxi) Other than as set forth in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "Environmental Laws"). To the
knowledge of the Company, neither the Company nor any of its
subsidiaries owns or operates any real property contaminated with any
substance that is subject to any Environmental Laws, is liable for any
off-site disposal or contamination pursuant to any Environmental Laws,
which violation, contamination, liability or claim would individually
or in the aggregate have a Material Adverse Effect other than as set
forth in the Prospectus;
(xxii) All tax returns required to be filed by the Company and
its subsidiaries in all jurisdictions have been timely and duly filed
or legally extended, other than those filings being contested in good
faith and those where the failure to file would not have a Material
Adverse Effect. There are no tax returns of the Company or any of its
subsidiaries that are currently being audited by state, local, or
federal taxing authorities or agencies (and with respect to which the
Company or any of its subsidiaries has received written notice), where
the findings of such audit, if adversely determined, would result in a
Material Adverse Effect. All taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or
claimed to be due from such entities have been paid, other than those
being contested in good faith and for which adequate reserves have
been provided or those currently payable without penalty or interest
and other than those that are not material or that would not result in
a Material Adverse Effect other than as set forth in the Prospectus;
(xxiii) The Company and its subsidiaries maintain insurance
covering their respective properties, operations, personnel and
businesses which insures against such losses and risks as are adequate
in accordance with its reasonable business judgment to protect the
Company, its subsidiaries and their respective businesses. Neither the
Company nor any of its subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital improvements
or other material expenditures will have to be made in order to
continue such insurance. All such insurance is outstanding and duly in
force on the date hereof and will be outstanding and duly in force at
the Time of Delivery;
(xxiv) The Company has no reason to believe that the sources from
which the statistical data included in the "Business" section of the
Prospectus are based on or derived from are not reliable and accurate;
(xxv) Neither the Company nor any of its subsidiaries is (i)
subject to regulation as a "holding company" or a "subsidiary company"
of a holding company or an "affiliate" of a subsidiary or holding
company or a "public utility company" under Section 2(a) of the Public
Utility Holding Company Act of 1935, (ii) subject to regulation under
the Federal Power Act, as amended, other than due to its subsidiaries'
status as power marketers and owners of certain electric transmission
facilities subject to the Federal Power Act, and its subsidiaries have
all exemptions and waivers from regulation as typically granted by
FERC to power marketers or entities with market based authority
affiliated with utilities, or (iii) subject to any state law or
regulation with respect to the rates or financial or organizational
regulation of electric utilities, other than due to its subsidiaries'
status as "electric corporations" under New York law subject to
lightened regulation, except as otherwise disclosed in the Prospectus;
(xxvi) Each of the power generation projects in which the Company
or its subsidiaries has an interest, which is subject to the
requirements under the Public Utility Regulatory Policies Act of 1978,
as amended, and the regulations of FERC promulgated thereunder, as
amended from time to time, necessary to be a "qualifying cogeneration
facility" and/or a "qualifying small power production facility" meets
such requirements or will meet such requirement; and
(xxvii) Each of the power generation projects in which the
Company or its subsidiaries has an interest, which is subject to the
requirements under the Federal Power Act discussed in Paragraph (xxv)
above, meets the requirements for, and has obtained from FERC, Exempt
Wholesale Generator Status, under Section 32 of the Public Utility
Holding Company Act of 1935, as amended, and FERC's regulations.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this
Agreement and for the sale and delivery of the Shares to be sold by
such Selling Stockholder hereunder, have been obtained; and such
Selling Stockholder has full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is
bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of
such Selling Stockholder or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) Such Selling Stockholder has, and immediately prior to the
Time of Delivery (as defined in Section 5 hereof) such Selling
Stockholder will have, good and valid title to the Shares to be sold
by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares
and payment therefor pursuant hereto and thereto, good and valid title
to such Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several Underwriters, as the case may be;
(iv) To the extent that any Selling Stockholder is not selling
all of their securities of the Company, such Selling Stockholder has
executed and delivered a letter restricting such Selling Stockholder's
ability to transfer their remaining securities of the Company after
the date of the Prospectus, in form and substance satisfactory to the
Underwriters and the Company and their respective counsel;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement
and the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
and
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and each of
the Selling Stockholders, at a purchase price per share of $18.75, the
number of Firm Shares (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Firm Shares to be
sold by the Company and each of the Selling Stockholders as set forth
opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased
by such Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the aggregate number of
Firm Shares to be purchased by all of the Underwriters from the Company and
all of the Selling Stockholders hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of
which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of
Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 4,125,000 Optional Shares, at the purchase price per
share set forth in the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares. Any such election
to purchase Optional Shares may be exercised only by written notice from
you to the Company, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the First Time
of Delivery (as defined in Section 5 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Company and each Selling Stockholder hereby confirm their
engagement of the services of the Independent Underwriter as, and the
Independent Underwriter hereby confirms its agreement with the Company and
each Selling Stockholder to render services as, a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 with
respect to the offering and sale of the Shares.
(b) Section intentionally deleted.
(c) Section intentionally deleted.
(d) Section intentionally deleted.
(e) The Company and each Selling Stockholder agree promptly to
reimburse the Independent Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in
connection with this Agreement and the services to be rendered hereunder.
5. (a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx, Xxxxx & Co. may request upon
at least forty-eight hours' prior notice to the Company and the
Selling Stockholders shall be delivered by or on behalf of the
Company and the Selling Stockholders to Xxxxxxx, Sachs & Co.,
through the facilities of The Depository Trust Company ("DTC"),
for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by
the Company and each of the Selling Stockholders to Xxxxxxx, Xxxxx
& Co. at least forty-eight hours in advance. The Company will
cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours
prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., New
York City time, on November 17, 2000 or on such other time and
date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New
York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in
the written notice given by Xxxxxxx, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such
other time and date as Xxxxxxx, Xxxxx & Co. and the Company may
agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery", such time
and date for delivery of the Optional Shares, if not the First
Time of Delivery, is herein called the "Second Time of Delivery",
and each such time and date for delivery is herein called a "Time
of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 8 hereof,
including the cross-receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(m)
hereof, will be delivered at the offices of Xxxxxx & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at each
Time of Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day next
preceding each Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of
this Section 5, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated
by law or executive order to close.
6. The Company agrees with each of the Underwriters and with the
Independent Underwriter:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you and the
Independent Underwriter, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you and the
Independent Underwriter with copies thereof; to advise you and the
Independent Underwriter promptly after it receives notice thereof of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters and the Independent Underwriter
with copies of the Prospectus in New York City in such quantities as
you and the Independent Underwriter may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus in order to comply
with the Act, to notify you and upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities (other than (i) pursuant to this agreement, (ii)
pursuant to employee stock option plans existing on, or upon the
conversion, exercise or exchange of convertible, exercisable or
exchangeable securities outstanding as of, the date of this Agreement
or (iii) Stock, warrants to purchase Stock, or securities convertible
or exchangeable into Stock issued in connection with acquisitions and
joint ventures that are used or useful for the Company's business,
provided that the recipients agree to similar restrictions for the
period beginning the date hereof and continuing to and including the
date 180 days after the date of this Prospectus), without your prior
written consent;
(f) To furnish to its stockholders or file with the Commission by
XXXXX as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), to make
available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(j) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
7. The Company covenants and agrees with several Underwriters and the
Independent Underwriter that (a) the Company will pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters, the
Independent Underwriter and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in
Section 6(b) hereof, including the fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection
with the Blue Sky surveys; (iv) all fees and expenses in connection with
listing the Shares on the New York Stock Exchange; and (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; and (b) the Company will pay or cause to be paid: (i) the cost of
preparing stock certificates; (ii) the cost and charges of any transfer
agent or registrar; and (iii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 10 and 13 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, stock transfer taxes on resale of any of the Shares
by them, and any advertising expenses connected with any offers they may
make. The fees and disbursements of counsel for the Underwriters referred
to in clauses (iii) and (v) of this section will be, in the aggregate,
$7,500. Each Selling Stockholder will pay its own out-of-pocket costs and
expenses to the extent such costs are not paid by the Company as required
by the immediately preceding sentence, in connection with the transactions
contemplated by this Agreement, including all taxes incident to the sale
and delivery of the Shares to be sold by such Selling Stockholder.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company and of
the Selling Stockholders herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations
hereunder theretofore to be performed, the condition (in the case of the
Underwriters) that the Independent Underwriter shall have furnished to the
Underwriters the letter referred to in clause (v) of Section 4(b) hereof
and the following additional conditions:
(a) Xxxxxx & Xxxxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion in the form attached as Annex I
hereto, dated such Time of Delivery, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(b) Stroock & Stroock & Xxxxx LLP, counsel for the Company, shall
have furnished to you their written opinion in the form attached as
Annex II hereto, dated the Time of Delivery.
(c) Xxxxxxxx & Xxxxx, counsel for the Company, shall have
furnished to you their written opinion in the form attached as Annex
III hereto, dated the Time of Delivery.
(d) Xxxxxx Xxxx & Priest LLP, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in
form of Annex IV hereto.
(e) The respective counsel for each of the Selling Stockholders,
as indicated in Schedule II hereto, each shall have furnished to you
their written opinion with respect to each of the Selling Stockholders
for whom they are acting as counsel, dated the First Time of Delivery,
in form of Annex V and Annex VI hereto:
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Xxxxxx Xxxxxxxx LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof,
in form and substance satisfactory to you, to the effect previously
agreed and attached hereto as Annex VII;
(g) (i) Neither the Company nor any of its subsidiaries, on a
consolidated basis, shall have sustained since the respective dates as
of which information is given in the Registration Statement and the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any
change in the capital stock, stockholders' equity or long-term debt of
the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
(j) The Shares to be sold by the Company and the Selling
Stockholders at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange;
(k) The Company has obtained and delivered to the Underwriters
executed copies of a lock-up agreement attached hereto as Annex VIII
from each of the stockholders of the Company listed on Schedule III
hereto;
(l) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Company and the Selling Stockholders shall have furnished
or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of the Selling Stockholders,
respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling
Stockholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Stockholders of
all of their respective obligations hereunder to be performed at or
prior to such Time of Delivery.
9. The Independent Underwriter hereby consents to the references to it
as set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a)
hereof.
10. (a) The Company will indemnify and hold harmless each Underwriter
and each Selling Stockholder, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such Selling
Stockholder, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each Selling
Stockholder, as the case may be, for any reasonable legal or other expenses
reasonably incurred by such Underwriter or such Selling Stockholder, as the
case may be, in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
either (1) written information furnished to the Company by any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein, or (2) written
information furnished to the Company by any Selling Stockholder expressly
for use therein. The Company also agrees to indemnify and hold harmless the
Independent Underwriter and each person, if any, who controls the
Independent Underwriter within the meaning of either Section 15 of the Act,
or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments incurred as a result of the
Independent Underwriter's participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the National Association of
Securities Dealers' Conduct Rules in connection with the offering of the
Stock, except for any losses, claims, damages, liabilities, and judgments
resulting from the Independent Underwriter's, or such controlling person's,
gross negligence or willful misconduct. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to this Section
in respect of such action or proceeding, then in addition to such separate
firm for the indemnified parties, the indemnifying party shall be liable
for the reasonable fees and expenses of not more than one separate firm (in
addition to any local counsel) for Xxxxxx Xxxxxxx & Co. Incorporated in its
capacity as a "qualified independent underwriter" and all persons, if any,
who control Xxxxxx Xxxxxxx & Co. Incorporated within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act.
(b) Each Selling Stockholder, severally but not jointly, will
indemnify and hold harmless each Underwriter and the Company against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or the Company, as the case may be, may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter and the
Company, as the case may be, for any reasonable legal or other expenses
reasonably incurred by such Underwriter or the Company, as the case may be,
in connection with investigating or defending any such action or claim as
such expenses are incurred, in each case to the extent, but only to the
extent, that such untrue statement or allegedly untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use
therein. Each Selling Stockholder also agrees, severally but not jointly,
to indemnify and hold harmless the Independent Underwriter and each person,
if any, who controls the Independent Underwriter within the meaning of
either Section 15 of the Act, or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
incurred as a result of the Independent Underwriter's participation as a
"qualified independent underwriter" within the meaning of Rule 2720 of the
National Association of Securities Dealers' Conduct Rules in connection
with the offering of the Stock, except for any losses, claims, damages,
liabilities, and judgments resulting from Xxxxxx Xxxxxxx'x, or such
controlling person's, gross negligence or willful misconduct.
Notwithstanding anything contained herein to the contrary, if indemnity may
be sought pursuant to this Section in respect of such action or proceeding,
then in addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for
Xxxxxx Xxxxxxx & Co. Incorporated in its capacity as a "qualified
independent underwriter" and all persons, if any, who control Xxxxxx
Xxxxxxx & Co. Incorporated within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act. Provided, further, however, that the
liability of each Selling Stockholder pursuant to this subsection 10(b)
shall not exceed the product of the number of Shares sold by such Selling
Stockholder and the initial public offering price of the Shares as set
forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company,
each Selling Stockholder and the Independent Underwriter, as the case may
be, against any losses, claims, damages or liabilities to which the
Company, such Selling Stockholder or the Independent Underwriter, as the
case may be, may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein; and will reimburse the Company, each
Selling Stockholder and the Independent Underwriter, as the case may be,
for any reasonable legal or other expenses reasonably incurred by the
Company, each Selling Stockholder and the Independent Underwriter, as the
case may be, in connection with investigating or defending any such action
or claim as such expenses are incurred.
(d) The Independent Underwriter will indemnify and hold harmless the
Company, each Selling Stockholder and each Underwriter against any losses,
claims, damages or liabilities to which the Company, such Selling
Stockholder or such Underwriter, as the case may be, may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
the Independent Underwriter expressly for use therein or constitutes a
reference to the Independent Underwriter consented to by it pursuant to
Section 9 hereof; and will reimburse the Company, each Selling Stockholder
or each Underwriter, as the case may be, for any reasonable legal or other
expenses reasonably incurred by the Company, each Selling Stockholder or
each Underwriter, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred.
(e) Promptly after receipt by an indemnified party under subsection
(a), (b), (c) or (d) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action 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 any indemnified party.
(f) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party(s) on the one hand and the indemnified party(s) on the other from the
offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (e)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnified party on the one hand and such indemnified party on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by each of the Company, each Selling Stockholder, each Underwriter
and the Independent Underwriter shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, a Selling Stockholder, an Underwriter or the Independent
Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Each of the Company, each Selling Stockholder, each Underwriter,
and the Independent Underwriter agrees that it would not be just and
equitable if contributions pursuant to this subsection (f) were determined
by pro rata allocation (even if the Underwriters and the Independent
Underwriter were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (f). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (f) shall be deemed to include any reasonable legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (f), no Underwriter nor the Independent
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public, and the Independent
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by the
Underwriters and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter, or Independent
Underwriter, as the case may be, have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (f) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(g) The obligations of the Company and each Selling Stockholder under
this Section 10 shall be in addition to any liability which the Company and
such Selling Stockholder may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
or the Independent Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 10 shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of, and to each person, if any, who controls the Company, any
Selling Stockholder or the Independent Underwriter within the meaning of
the Act; and the obligations of the Independent Underwriter under this
Section 10 shall be in addition to any liability which the Independent
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of, and to each person, if any,
who controls the Company, any Selling Stockholder or any Underwriter within
the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery,
you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange
for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you
to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company and the Selling
Stockholders that you have so arranged for the purchase of such Shares, or
the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the
Selling Stockholders shall have the right to postpone such Time of Delivery
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of all of the Shares to be
purchased at such Time of Delivery, then the Company and the Selling
Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed
to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased
at such Time of Delivery, or if the Company and the Selling Stockholders
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time
of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or
the Selling Stockholders, except for the expenses to be borne by the
Company and the Selling Stockholders and the Underwriters as provided in
Section 7 hereof and the indemnity and contribution agreements in Section
10 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
12. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders
and the several Underwriters and the Independent Underwriter, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter, the Independent Underwriter or any controlling
person of any Underwriter, the Independent Underwriter or the Company, or
any of the Selling Stockholders, or any officer or director or controlling
person of the Company, or any controlling person of any Selling
Stockholder, and shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11
hereof, neither the Company nor the Selling Stockholders shall then be
under any liability to any Underwriter or the Independent Underwriter
except as provided in Section 4(e) hereof and in Sections 7 and 10 hereof;
but, if for any other reason any Shares are not delivered by or on behalf
of the Company and the Selling Stockholders as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company
and the Selling Stockholders shall then be under no further liability to
any Underwriter in respect of the Shares not so delivered except as
provided in Section 4(e) hereof and Sections 7 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Xxxxxxx, Sachs & Co. on behalf of you as
the representatives; and in all dealings with any Selling Stockholder
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such
Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives in care of
Xxxxxxx, Xxxxx & Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
facsimile (000) 000-0000, Attention: Registration Department; if to the
Independent Underwriter shall be delivered or sent by mail, letter or
facsimile transmission to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; facsimile (000) 000-0000, if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to counsel for such Selling Stockholder at its address set
forth in Schedule II hereto; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary, with a copy
to Xxxxxx X. Xxxxxxx, Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, XX 00000, facsimile (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 10(e) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or
telex constituting such Questionnaire, which address will be supplied to
the Company or the Selling Stockholders by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Independent Underwriter, the Company and
the Selling Stockholders and, to the extent provided in Sections 10 and 12
hereof, the officers and directors of the Company and each person who
controls the Company, any Selling Stockholder or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Underwriters and the Independent
Underwriter, this letter and such acceptance hereof shall constitute a
binding agreement among each of the Underwriters, the Independent
Underwriter, the Company and each of the Selling Stockholders. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company and
the Selling Stockholders for examination upon request, but without warranty
on your part as to the authority of the signers thereof.
[Signature Pages Follow]
Very truly yours,
Orion Power Holdings, Inc.
By:/s/ W. Xxxxxxxx Xxxxxx
----------------------
Name: W. Xxxxxxxx Xxxxxx
Title: Executive Vice President
Underwriting Agreement Signature Page
Very truly yours,
Constellation Operating Services,
Inc.
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: V.P., Operations,
Constellation
Operating Services, Inc.
Underwriting Agreement Signature Page
Very truly yours,
Constellation Enterprises, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Underwriting Agreement Signature Page
Accepted as of the date hereof at New York, New York:
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxxx, Sachs & Co.
------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
Underwriting Agreement Signature Page
Accepted as of the date hereof at New York, New York:
Xxxxxx Xxxxxxx & Co. Incorporated, as Independent Underwriter
By: /s/ Xxxx X. Xxxxxxx
-------------------
(Xxxxxx Xxxxxxx & Co.)
Underwriting Agreement Signature Page
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF FIRM PURCHASED IF MAXIMUM
UNDERWRITER SHARES TO BE PURCHASED OPTION EXERCISED
----------- ---------------------- --------------------
Xxxxxxx, Sachs & Co. 7,458,000 8,576,700
Credit Suisse First Boston Corporation 4,350,500 5,003,075
Deutsche Bank Securities Inc. 4,350,500 5,003,075
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 4,350,500 5,003,075
Xxxxxx Xxxxxxx & Co. Incorporated 4,350,500 5,003,075
ABN AMRO Rothschild 220,000 253,000
Xxxxxx X. Xxxxx & Co. Incorporated 220,000 253,000
BNP Paribas Corp. 220,000 253,000
CIBC World Markets Corp. 220,000 253,000
X.X. Xxxxxxx & Sons, Inc. 220,000 253,000
First Union Securities, Inc. 220,000 253,000
ING Barings LLC 220,000 253,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 220,000 253,000
Xxxxxxxxx Xxxxxxxx, Inc. 220,000 253,000
XX Xxxxx Securities Corporation 220,000 253,000
Scotia Capital (USA) Inc. 220,000 253,000
Dresdner Kleinwort Xxxxxx North America LLC 220,000 253,000
---------- ----------
Total ................................................... 27,500,000 31,625,000
Schedule I
Schedule II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES TO BE MAXIMUM OPTION
SOLD EXERCISED
----------------- ------------------
The Company.................................................................24,279,032 28,404,032
The Selling Stockholder(s):
Constellation Operating Services, Inc. (a)..........................1,219,355 1,219,355
Constellation Enterprises, Inc. (b).................................2,001,613 2,001,613
---------- ----------
Total ........................................................... 27,500,000 31,625,000
(a) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL].
(b) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL].
Schedule II
Schedule III
STOCKHOLDERS SUBJECT TO SECTION 8(K) RESTRICTIONS
-----------------------------------------------------
GS Capital Partners II, L.P.
GS Capital Partners II Offshore, L.P.
GS Capital Partners II Germany, C.L.P.
Stone Street Fund 0000, X.X.
Xxxxxx Xxxxxx Fund 1998, L.P.
GS Capital Partners III, L.P.
GS Capital Partners III Offshore, L.P.
GS Capital Partners III Germany, C.L.P.
Stone Street Fund 2000, L.P.
Bridge Special Opportunities Fund 2000, L.P.
Diamond Generating Corporation
Diamond Cayman, Inc.
Mitsubishi International Corporation
Tokyo Electric Power Company International B.V.
Xxxx X. Xxxxx
Xxxxx X. Xxxx
W. Xxxxxxxx Xxxxxx
E. Xxxxxx Xxxx
Xxxxxxx X. Xxxxxxx
Schedule III
ANNEX I
FORM OF XXXXXX & XXXXXXX OPINION
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
as Representatives of the
Several Underwriters
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Orion Power Holdings, Inc.
--------------------------
Ladies and Gentlemen:
We have acted as your special counsel in connection with the sale to
you and the other Underwriters on the date hereof by Orion Power Holdings,
Inc., a Delaware corporation (the "Company"), and the Selling Stockholders
(as defined below) of 27,500,000 shares (the "Shares") of common stock of
the Company, par value $0.01 per share (the "Common Stock"), pursuant to a
registration statement on Form S-1 under the Securities Act of 1933, as
amended (the "Act"), filed with the Securities and Exchange Commission (the
"Commission") on August 18, 2000 (File No. 333-44118), covering 28,750,000
shares of Common Stock, as amended by Amendment No. 1 filed with the
Commission on October 5, 2000, Amendment No. 2 filed with the Commission on
October 26, 2000, Amendment No. 3 filed with the Commission on November 13,
2000, and a second registration statement on Form S-1 under the Act, filed
with the Commission pursuant to Rule 462(b) under the Act on November 14,
2000 covering an additional [2,875,000] shares of Common Stock
(collectively, the "Registration Statement"), a Prospectus dated November
13, 2000 filed with the Commission pursuant to Rule 424(b) under the Act
(the "Prospectus"), an underwriting agreement dated November 13, 2000 among
you as Representatives of the several Underwriters named in Schedule I to
the underwriting agreement, the selling stockholders named in Schedule II
to the underwriting agreement (the "Selling Stockholders") and the Company
(the "Underwriting Agreement"). This opinion is being rendered to you
pursuant to Section 8(a) of the Underwriting Agreement.
As such counsel, we have made such legal and factual examinations and
inquiries as we have deemed necessary or appropriate for purposes of this
opinion. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents
submitted to us as copies. As to facts material to the opinions, statements
and assumptions expressed herein, we have, with your consent, relied upon
oral or written statements and representations of officers and other
representatives of the Company and others. In addition, we have obtained
and relied upon such certificates and assurances from public officials as
we have deemed necessary.
We are opining herein as to the effect on the subject transaction only
of the federal laws of the United States, the internal laws of the State of
New York and the General Corporation Law of the State of Delaware, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of Delaware,
any other laws, or as to any matters of municipal law or the laws of any
local agencies within any state.
Whenever a statement herein is qualified by "to the best of our
knowledge" or a similar phrase, it is intended to indicate that those
attorneys in this firm who have rendered legal services in connection with
the above transaction do not have current actual knowledge of the
inaccuracy of such statement. However, except as otherwise expressly
indicated, we have not undertaken any independent investigation to
determine the accuracy of any such statement, and no inference that we have
any knowledge of any matters pertaining to such statement should be drawn
from our representation of you.
Capitalized terms used herein without definition have the meanings
assigned to them in the Underwriting Agreement.
Subject to the foregoing and the other matters set forth herein, it is
our opinion that, as of the date hereof:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Shares to be issued and sold by the Company pursuant to the
Underwriting Agreement have been duly authorized and, when issued to and
paid for by you and the other Underwriters in accordance with the terms of
the Underwriting Agreement will be validly issued, fully paid and
non-assessable and, to the best of our knowledge, free of preemptive
rights; the Shares to be sold by the Selling Stockholders pursuant to the
Underwriting Agreement have been duly authorized and validly issued and are
fully paid and non-assessable.
4. The statements set forth in the Prospectus under the heading
"Underwriting", insofar as such statements contain constitute a summary of
legal matters, are accurate in all material respects.
5. The Registration Statement has become effective under the Act and,
to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Act and no proceedings
therefor have been initiated by the Commission; and any required filing of
the Prospectus pursuant to Rule 424(b) under the Act has been made in
accordance with Rules 424(b) and 430A under the Act.
6. The Registration Statement and the Prospectus comply as to form in
all material respects with the requirements for registration statements on
Form S-1 under the Act and the rules and regulations of the Commission
thereunder; it being understood, however, that we express no opinion with
respect to the financial statements, schedules or other financial data
included in, or omitted from, the Registration Statement or the Prospectus.
In passing upon the compliance as to form of the Registration Statement and
the Prospectus, we have assumed that the statements made therein are
correct and complete.
In addition, we have participated in conferences with officers and
other representatives of the Company, counsel to the Company,
representatives of the independent public accountants for the Company and
your representatives, 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, at the time it 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, as of its date or as of the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary 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, schedules or other financial data included in, or omitted from,
the Registration Statement or the Prospectus.
This opinion is rendered only to you as Representatives of the several
Underwriters under the Underwriting Agreement and is solely for the benefit
of the Underwriters in connection with the transactions covered hereby.
This opinion may not be relied upon by you for any other purpose, or
furnished to, quoted to, or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent.
Very truly yours,
ANNEX II
FORM OF STROOCK & STROOCK & XXXXX LLP OPINION
_________, ___, 2000
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As representatives of the several Underwriters
named in Schedule I to the Underwriting Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to Orion Power Holdings, Inc., a Delaware
corporation (the "Company"), in connection with (i) the Company's
Registration Statement on Form S-1 (Registration No. 333-44118), as amended
by Amendments No. 1, 2, __ and __ (the "Registration Statement"), filed by
the Company with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), and (ii) the sale
by the Company of an aggregate of _____ shares of common stock, par value
$.01 per share (the "Stock"), pursuant to the Underwriting Agreement, dated
as of _____, 2000 (the "Underwriting Agreement"), by and among the Company,
the selling stockholders named in Schedule II thereto (the "Selling
Stockholders") and you, as representatives of the several Underwriters
named in Schedule I thereto (the "Underwriters").
We are rendering this opinion to you pursuant to Section 8(b) of the
Underwriting Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Underwriting
Agreement.
We have examined copies of each of (i) the Underwriting Agreement,
(ii) the Registration Statement and the exhibits thereto, (iii) the
Company's Prospectus dated ______ __, 2000 (the "Prospectus") and (iv) the
Certificate of Incorporation (the "Certificate of Incorporation") and
Bylaws (the "Bylaws") of the Company, as in effect on the date hereof. We
have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records of the Company, and such
documents, records, agreements, instruments and certificates of officers
and representatives of the Company and others, and have made such
examinations of law, as we have deemed necessary to form the basis of the
opinions hereinafter expressed. In such examinations, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to originals of all documents
submitted to us as copies thereof. As to various questions of fact material
to the opinions expressed below, we have relied upon (i) the
representations and warranties of the Company contained in the Underwriting
Agreement or made pursuant thereto or in connection with the closing
thereunder and (ii) statements by and certificates of officers and
representatives of the Company and others.
Attorneys involved in the preparation of this opinion are admitted to
practice law in the State of New York and we do not purport to express any
opinion herein concerning any law other than the laws of the State of New
York, the federal laws of the United States of America (except for FERC and
FPA matters as to which we do not express any opinions), the General
Corporation Law of the State of Delaware and the Delaware Revised Uniform
Limited Partnership Act.
For purposes of this letter, we have assumed that the Underwriting
Agreement is a valid and binding obligation of each of you and the other
Underwriters and is enforceable against each of you and the other
Underwriters in accordance with its terms.
When reference is made in this opinion to "our knowledge" or to what
is "known to us," it means, unless otherwise indicated, the actual
knowledge attributable to our representation of the Company of only those
partners and associates who have given substantive attention to the
Underwriting Agreement, the Registration Statement, the Prospectus and the
sale of the Shares.
With respect to our opinion expressed in paragraphs 1, 3 and 4 below
relating to the good standing and valid existence of each of the Company
and its subsidiaries, we have relied, with your permission, solely upon
good standing certificates of public officials or upon confirmation via
facsimile of good standing as an existing corporation or partnership from
such public officials, copies of which are being delivered concurrently
herewith.
With reference to our opinion in paragraphs 7 and 8 below, our opinion
is limited to (i) review of only those laws and regulation that, in our
experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement, and (ii) does not include, and
we express no opinion as to the application of, any federal (including the
FERC and FPA) or state laws or regulations regarding the generation,
transmission, marketing or sale of electricity or the ownership or
operation of power plants. In addition, we express no opinion as to the
statutes and ordinances, administrative decisions and rules and regulations
of counties, towns, municipalities and special political subdivisions, or
judicial decisions to the extent they deal therewith.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered on the date hereof) have
been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock
contained in the Prospectus.
3. The Company and its subsidiaries have been duly qualified as a foreign
corporation or limited partnership, as the case may be, for the
transaction of business and are in good standing under the laws of the
jurisdictions set forth on Schedule (c).
4. Each subsidiary of the Company listed on Exhibit 21.1 to the
Registration Statement is validly existing as a corporation or limited
partnership, as the case may be, in good standing under the laws of
its jurisdiction of incorporation or organization with corporate or
partnership power and authority to own its properties and conduct its
business as described in the Prospectus.
5. To our knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to our knowledge, no such proceedings are threatened by governmental
authorities or threatened by others against the Company or any of its
subsidiaries.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
7. The issue and sale of the Stock and the compliance by the Company with
all of the provisions of the Underwriting Agreement and the
consummation of the transactions therein contemplated will not
conflict with or result in a material breach or violation of any of
the terms or provisions of, or constitute a default under the
agreements listed on Exhibit 4.1 through Exhibit 4.4 or Exhibit 10.1
through Exhibit 10.28 to the Registration Statement, which have been
identified to us in an officer's certificate as being all of the
agreements that are material to the Company and its subsidiaries taken
as a whole, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or Bylaws of the
Company, or the Delaware General Corporation Law or any federal or New
York statute, order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties. We express no opinion with
respect to any such conflict, breach, violation or default not readily
ascertainable from the face of any such agreement, or arising under or
based upon any cross-default provisions insofar as it relates to a
default under an agreement not identified to us, or arising under or
based upon any covenant of a financial or numerical nature or
requiring computation.
8. No consent, approval, authorization, order, registration, filing or
qualification of or with any such court or governmental agency or body
is required under federal or New York law or the Delaware General
Corporation Law for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by the
Underwriting Agreement, except as such have been obtained (including
the approval by the Federal Energy Regulatory Commission), the
registration under the Act of the Stock, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Stock by the Underwriters.
9. The statements set forth in the Prospectus under the caption
"Description of Capital Stock" insofar as they purport to constitute a
summary of certain of the terms of the Stock, and under the captions
"Risk Factors-We have agreed to provide all of the energy required by
Duquesne Light Company to satisfy its provider of last resort
obligation, which could result in significant losses to us,"
"Business" (other than the subheading "Regulation") "Certain
Relationships and Related Party Transactions," "Description of
Indebtedness," "Certain Relationships and Related Party Transactions,"
and "Underwriting" insofar as they purport to describe the provisions
of the laws and documents referred to therein accurately and fairly
summarize such terms and such provisions, respectively, in all
material respects.
10. The Company is not subject to registration as an "investment company,"
as such term is defined in the Investment Company Act.
11. The Registration Statement has become effective under the Act and the
Prospectus was filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement
has been issued or proceeding for that purpose has been instituted or
threatened by the Commission.
12. To our knowledge, there are no contracts or documents of a character
required by the Act or the rules and regulations thereunder to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not
described or filed as required by the Act or the rules and regulations
thereunder.
The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the date
hereof (other than the financial statements and related schedules therein,
as to which we express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder; and although we do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in
paragraph 9 above, we have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by
the Company prior to the date hereof (other than the financial statements
and related schedules therein, as to which we express no opinion) 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, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements and related schedules therein,
as to which we express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that, as of the date hereof, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to the date hereof (other than
the financial statements and related schedules therein, as to which we
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
This opinion is furnished solely for your benefit and may not be used
or relied upon by any other person without our express written consent.
Very truly yours,
SCHEDULE (c)
------------
NAME OF ENTITY: JURISDICTIONS IN
WHICH QUALIFIED AND
IN GOOD STANDING:
1. Orion Power Holdings, Inc. Maryland
2. Orion Power New York GP, Inc. New York
3. Orion Power New York LP, Inc. New York
4. Orion Power New York XX XX, Inc. New York
5. Orion Power New York, L.P. New York
6. Astoria Generating Company, L.P. New York
7. Erie Boulevard Hydropower, L.P. New York
8. Xxxx Street Generating Station, L.P. New York
9. Orion Power Midwest, L.P. Pennsylvania
10. Orion Power Midwest GP, Inc. Pennsylvania
11. Orion Power Midwest LP, Inc. None
12. Orion Power Operating Services, Inc. None
13. Orion Power Operating Services MidWest, Inc. None
14. COSI Astoria, Inc. New York
15. COSI Coldwater, Inc. New York
16. COSI Xxxx Street, Inc. New York
17. COSI Great Lakes, Inc.
18. Orion Power New York LPII, Inc.
SCHEDULE (l)(ii)
----------------
None
Schedule (l)(ii)
ANNEX III
XXXXXXXX & XXXXX OPINION
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We are issuing this opinion letter as special energy regulatory
counsel to Orion Power Holdings, Inc., a Delaware corporation (the
"Company"), in connection with the issuance and sale by the Company of an
aggregate of [ ] shares of Common Stock, par value $.01 per share (the
"Stock"), pursuant to the Underwriting Agreement, dated as of [ ], 2000
(the "Underwriting Agreement"), between the Company and the Underwriters
named in Schedule I thereto (the "Underwriters"). This opinion is being
delivered to you pursuant to Section 8(c) of the Underwriting Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Underwriting Agreement, provided
that references to any document means documents in the form executed and
delivered as of the date hereof.
The following is based exclusively on specific federal, New York,
Pennsylvania and Ohio energy regulatory statutes and orders, rules or
regulations regarding (a) the generation, transmission, marketing or sale
of electricity or (b) the ownership or operation of power plants. Subject
to the assumptions, qualifications, exclusions and other limitations which
are identified in this letter, we advise you that:
(a) The statements in the Prospectus under the captions
"Risk Factors-The rules and regulations in the various regional
market structures in which we compete are subject to change, which
may impact our ability to compete and our profitability," "Risk
Factors-We are subject to stringent governmental regulation, which
may be burdensome or lead to significant costs or liabilities,"
"Risk Factors--The substantial ownership interest in us by certain
of our stockholders could hinder our ability to obtain
governmental approval for future acquisitions or enter additional
markets," "Business-Regulation- Federal Energy Regulation," and
"Business-Regulation--State Energy Regulation," insofar as such
statements purport to describe the laws or proceedings referred to
therein, are fair and accurate summaries of such laws and
regulations and such proceedings in all material respects. This
opinion is based exclusively on specific federal, New York,
Pennsylvania and Ohio energy regulatory statutes and orders, rules
or regulations regarding (a) the generation, transmission,
marketing or sale of electricity or (b) the ownership or operation
of power plants.
(b) To our knowledge, except as set forth in the
Prospectus, neither the Company nor any of its subsidiaries is (i)
subject to regulation as a "holding company" or a "subsidiary
company" of a holding company or an "affiliate" of a subsidiary or
holding company or a "public utility company" under Section 2(a)
of the Public Utility Holding Company Act of 1935, (ii) subject to
regulation under the Federal Power Act of 1920, as amended, other
than as contemplated by 18 C.F.R. Section 292.601(c) and other
than due to its subsidiaries' status as power marketers and owners
of certain electric transmission facilities subject to the Federal
Power Act, and its subsidiaries have all exemptions and waivers
from regulation as typically granted by FERC to power marketers or
entities with market based authority affiliated with utilities, or
(iii) subject to any state law or regulation with respect to the
rates or financial or organizational regulation of electric
utilities, other than due to its subsidiaries' status as "electric
corporations" under New York law subject to lightened regulation.
This opinion is based exclusively on specific federal, New York,
Pennsylvania and Ohio energy regulatory statutes and orders, rules
or regulations regarding (a) the generation, transmission,
marketing or sale of electricity or (b) the ownership or operation
of power plants.
(c) The issue and sale of the Stock and the compliance by
the Company with all of the provisions of the Underwriting
Agreement and the consummation of the transactions contemplated
therein will not result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties. This opinion is based
exclusively on specific federal, New York, Pennsylvania and Ohio
energy regulatory statutes and orders, rules or regulations
regarding (a) the generation, transmission, marketing or sale of
electricity or (b) the ownership or operation of power plants.
(e) No consent, approval, authorization, order, or
registration of or with any court or governmental agency or body
is required for the issue and sale of the Stock or the
consummation by the Company of the transactions contemplated by
the Underwriting Agreement, except for consents, approvals,
authorizations, orders, or regulations associated with the issue
and sale of the Stock, which have been obtained. This opinion is
based exclusively on specific federal, New York, Pennsylvania and
Ohio energy regulatory statutes and orders, rules or regulations
regarding (a) the generation, transmission, marketing or sale of
electricity or (b) the ownership or operation of power plants.
For purposes of this opinion letter, we have relied, without
investigation, upon each of the following assumptions: (i) Each document
submitted to us for review is accurate and complete, each such document
that is an original is authentic, each such document that is a copy
conforms to an authentic original, and all signatures on each such document
are genuine; (ii) there are no agreements or understandings among the
parties, written or oral, and there is no usage of trade or course of prior
dealing among the parties that would, in either case, define, supplement or
qualify the terms of the Underwriting Agreement; (iii) the
constitutionality or validity of a relevant statute, rule, regulation or
agency action is not in issue; (iv) all parties to the Underwriting
Agreement will act in accordance with, and will refrain from taking any
action that is forbidden by, the terms and conditions of the Underwriting
Agreement; (v) all agreements other than the Underwriting Agreement (if
any) with respect to which we have provided advice in our letter or
reviewed in connection with our letter would be enforced as written; (vi)
the Company and its subsidiaries will not in the future take any
discretionary action (including a decision not to act) permitted under the
Underwriting Agreement that would result in a violation of law or
constitute a breach or default under any other agreements or court orders
to which the Company or its subsidiaries may be subject; (vii) except for
those governmental and regulatory approvals that we have specifically
opined upon herein, the Company and its subsidiaries have obtained (and
will in the future obtain) all permits and governmental approvals required,
and have taken (and will in the future take) all actions required, relevant
to the consummation of the transactions or performance of the Underwriting
Agreement; and (viii) each person who has taken any action relevant to any
of our opinions in the capacity of director or officer was duly elected to
that director or officer position and held that position when such action
was taken. In addition, we have relied without any independent verification
upon: (i) information contained in certificates and approvals obtained from
governmental authorities; (ii) factual information contained in
applications to governmental authorities, the Underwriting Agreement; and
(iii) factual information we have obtained from such other sources as we
have deemed reasonable. We have assumed without investigation that there
has been no relevant change or development between the dates as of which
the information cited in the preceding sentence was given and the date of
this letter and that the information upon which we have relied is accurate
and does not omit disclosures necessary to prevent such information from
being misleading. For purposes of each opinion, we have relied upon
decisions issued by governmental authorities in each relevant jurisdiction,
and such opinion is not intended to provide any conclusion or assurance
beyond that conveyed by that decision.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about
which this letter advises you, we confirm that we do not have any actual
knowledge which has caused us to conclude that our reliance and assumptions
cited in the preceding paragraph are unwarranted or that any information
supplied in this letter is wrong. The term "knowledge" whenever it is used
in this letter with respect to our firm means conscious awareness at the
time this letter is delivered on the date it bears by the following
Xxxxxxxx & Xxxxx lawyers who have reviewed the Underwriting Agreement
(herein called "our Designated Transaction Lawyers"): Xxxxxxxx X. Xxxxx and
Xxxxxxxxx X. Xxxxxxxxxxx.
Our advice on every legal issue addressed in this letter is based
exclusively on the specific federal or New York, Pennsylvania and Ohio
energy regulatory statutes and orders, rules or regulations regarding (a)
the generation, transmission, marketing or sale of electricity or (b) the
ownership or operation of power plants. We advise you that issues addressed
by this letter may be governed in whole or in part by other laws, but we
express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may
actually govern. We also advice you that we are members of the bars of the
District of Columbia and New York State and are not members of the bars of
Pennsylvania or Ohio. We are not providing this opinion letter except in
our capacity as special energy regulatory legal counsel to the Company on
issues relating to the Federal Energy Regulatory Commission ("FERC"), the
New York Public Service Commission ("NYPSC"), the Pennsylvania Public
Utilities Commission ("PPUC") and the Public Utilities Commission of Ohio
("PUCO") and offer no opinions on environmental or other matters relating
to (a) the generation, transmission, marketing or sale of electricity or
(b) the ownership or operation of power plants, whether or not addressed in
the Prospectus or the Underwriting Agreement.
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by
the highest court of the jurisdiction upon whose law our opinion on that
issue is based. The manner in which any particular issue would be treated
in any actual court case would depend in part on facts and circumstances
particular to the case, and this letter is not intended to guarantee the
outcome of any legal dispute which may arise in the future.
This letter speaks as of the time of its delivery on the date it
bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact about which our Designated
Transaction Lawyers did not have actual knowledge at that time, by reason
of any change subsequent to that time in any law covered by any of our
opinions, or for any other reason.
You may rely upon this letter only for the purpose served by the
provisions in the Underwriting Agreement cited in the initial paragraph of
this letter in response to which it has been delivered. Without our written
consent: (i) no person other than you may rely on this letter for any
purpose; (ii) this letter may not be cited or quoted in any financial
statement, prospectus, private placement memorandum or other similar
document; (iii) this letter may not be cited or quoted in any other
document or communication which might encourage reliance upon this letter
by any person or for any purpose excluded by the restrictions in this
paragraph; and (iv) except as required by law, copies of this letter may
not be furnished to anyone (except to the Underwriters) for purposes of
encouraging such reliance; provided that any Person who becomes an
Underwriter on or after the date hereof may rely on this opinion as if it
were addressed to such Person on and as of the Time of Delivery, subject to
the limitations contained in this paragraph.
Sincerely,
-------------------------------
ANNEX IV
FORM OF XXXXXX XXXX & PRIEST LLP OPINION
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This firm has acted as special environmental counsel to Orion Power
Holdings, Inc., a Delaware corporation (the "Company") on certain limited
matters with regard to the issuance and sale by the Company of Common
Stock, par value $.01 per share (the "Stock") pursuant to the Underwriting
Agreement, dated as of [ ], 2000 (the "Underwriting Agreement") between the
Company and the Underwriters named in Schedule I thereto (the
"Underwriters"). This opinion is being delivered to you pursuant to Section
8(d) of the Underwriting Agreement. In our review, we have assumed the
accuracy and completeness of all statements of fact relating to the Company
and its operations and products and have made no independent investigation
for purposes of rendering this opinion. This opinion relates solely to
matters of environmental law.
We are licensed and authorized to practice law under the laws of the
United States and the states of New York and California. This opinion
relates solely to environmental laws and legal documents or proceedings
promulgated under the laws of the United States and the state of New York
and we do not offer any opinions regarding laws or legal proceedings
outside those jurisdictions.
We express no opinion regarding the requirements, status or need for
FERC certification or compliance with FERC's guidelines, rules or
regulations.
Based on and subject to the foregoing, we are of the opinion that the
statements in the Prospectus under the captions "Risk Factors-The costs of
compliance with existing and future environmental regulations could
adversely affect our cash flow and profitability" and "Risk Factors-We are
subject to stringent governmental regulation, which may be burdensome or
lead to significant costs or liabilities" and [under the caption]
"Business-Regulation-Environmental Regulation," solely insofar as such
statements purport to describe the laws or legal documents or legal
proceedings referred to therein, are fair and accurate summaries of such
laws and regulations and such legal documents and proceedings in all
material respects.
This opinion speaks only as of the date hereof and not to any prior or
subsequent date, and we assume no obligation to advise you of any changes
in the foregoing subsequent to the delivery of this opinion. This opinion
has been prepared solely for your use in connection with the offering of
the securities and may not be used, quoted or otherwise referred to or
relied upon by any person or entity without the prior written consent of
this firm.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
-------------------------------
ANNEX V
------------------, 2000
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As representatives of the several Underwriters named in
Schedule I to the Underwriting Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
I am Associate General Counsel of Constellation Power Source Holdings,
Inc. and certain of its affiliates, including Constellation Operating
Services, Inc., a Maryland corporation ("COSI"). I and lawyers assisting me
have acted as counsel to COSI, in connection with the sale by COSI of an
aggregate of ______ shares of common stock, par value $.01 per share of
Orion Power Holdings, Inc. (the "Stock"), pursuant to the Underwriting
Agreement, dated as of ______, 2000 (the "Underwriting Agreement"), by and
among Orion Power Holdings, Inc., the selling stockholders named in
Schedule II thereto including COSI (the "Selling Stockholders") and you, as
representatives of the several Underwriters named in Schedule I thereto
(the "Underwriters).
We are rendering this opinion to you pursuant to Section 8(e) of the
Underwriting Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Underwriting
Agreement.
We have examined copies of each of (i) the Underwriting Agreement,
(ii) the Registration Statement and exhibits thereto, (iii) Orion Power
Holding, Inc.'s Prospectus, and (vi) the Articles of Incorporation (the
"Articles of Incorporation") and Bylaws (the "Bylaws") of COSI, as in
effect on the date hereof. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such corporate
records of COSI, and such documents, records, agreements, instruments and
certificates of officers and representatives of COSI and others, and have
made such examinations of law, as we have deemed necessary to form the
basis of the opinion hereinafter expressed. In such examinations, we have
assumed the genuineness of all signatures of parties other than COSI, the
authenticity of all documents submitted to us as originals and the
conformity to originals of all documents submitted to us as copies thereof,
in each case as submitted by any person other than COSI. As to various
questions of fact material to the opinions expressed below, we have relied
upon (i) the representations and warranties of COSI contained in the
Underwriting Agreement or made pursuant thereto or in connection with the
closing thereunder and (ii) statements by and certificates of officers and
representatives of COSI and others. In particular, in rendering
subparagraph (v) we have relied upon a certificate of COSI in respect of
matters of fact as to ownership of, and liens, encumbrances, equities or
claims on the Shares sold by COSI which we believe that we are justified in
relying upon.
For purposes of this letter, we have assumed that the Underwriting
Agreement is a valid and binding obligation of each of you, the other
Underwriters and Orion Power Holdings, Inc. and is enforceable against each
of you, Orion Power Holdings, Inc. and the other Underwriters in accordance
with its terms.
When reference is made in this opinion to "our knowledge" or to what
is "known to us," it means, unless otherwise indicated, the actual
knowledge attributable to my representation of COSI and that of in-house
attorneys who have given substantive attention to the Underwriting
Agreement and the sale of the Shares in coordination with me.
Based on the foregoing, we are of the opinion that:
(i) COSI has been duly incorporated and is validly existing and in
good standing under the laws of the State of Maryland.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of COSI and the sale of the
Shares to be sold by COSI thereunder and the compliance by COSI
with all of the provisions of the Underwriting Agreement and
the consummation of the transactions therein contemplated will
not conflict with or result in any breach or violation of any
terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to us to which COSI is a
party or by which COSI is bound, or to which any of the
property or assets of COSI is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or By-laws of COSI, or any order, rule or
regulation known to us of any court or governmental agency or
body having jurisdiction over COSI or the property of COSI;
(iii) Noconsent, approval, authorization or order of any court or
governmental agency or body is required under federal or
Maryland law for the sale of COSI's Shares contemplated by the
Underwriting Agreement. We express no opinion regarding any
approval (a) of the FERC under the Federal Power Act with
respect to the transactions contemplated by the Underwriting
Agreement or (b) required under the Act, state securities laws
or Blue Sky Laws;
(iv) Immediately prior to the First Time of Delivery COSI had good
and valid title to the Shares to be sold at the First Time of
Delivery by COSI under the Underwriting Agreement, free and
clear of all liens, encumbrances, equities or claims, and full
right power and authority to sell, assign, transfer and deliver
the Shares to be sold by COSI under the Underwriting Agreement;
and
(v) Good and valid title to COSI's Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred
to each of the several Underwriters, as the case may be, who
have purchased such Shares in good faith and without notice of
any such lien, encumbrance, equity or claim or any other
adverse claim within the meaning of the Uniform Commercial
Code.
This opinion is limited to the law of the State of Maryland (without
regard to the application of any principles of conflict of laws) and the
Federal law of the United States, all as in effect as of the date hereof.
The opinions in this letter are being furnished to you for your
benefit and may not be relied upon by any other Person.
Very truly yours,
Xxx X. Xxxxxxxxxx
ANNEX VI
------------------, 2000
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As representatives of the several Underwriters named in
Schedule I to the Underwriting Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
I am Associate General Counsel of Constellation Power Source Holdings,
Inc. a Maryland corporation and certain of its affiliates ("CPS"). I and
lawyers assisting me have acted as counsel to CPS, in connection with the
sale by CPS of an aggregate of ______ shares of common stock, par value
$.01 per share of Orion Power Holdings, Inc. (the "Stock"), pursuant to the
Underwriting Agreement, dated as of ______, 2000 (the "Underwriting
Agreement"), by and among Orion Power Holdings, Inc., the selling
stockholders named in Schedule II thereto including CPS (the "Selling
Stockholders") and you, as representatives of the several Underwriters
named in Schedule I thereto (the "Underwriters).
We are rendering this opinion to you pursuant to Section 8(e) of the
Underwriting Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Underwriting
Agreement.
We have examined copies of each of (i) the Underwriting Agreement,
(ii) the Registration Statement and exhibits thereto, (iii) Orion Power
Holding, Inc.'s Prospectus, and (vi) the Articles of Incorporation (the
"Articles of Incorporation") and Bylaws (the "Bylaws") of CPS, as in effect
on the date hereof. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records of CPS,
and such documents, records, agreements, instruments and certificates of
officers and representatives of CPS and others, and have made such
examinations of law, as we have deemed necessary to form the basis of the
opinion hereinafter expressed. In such examinations, we have assumed the
genuineness of all signatures of parties other than CPS, the authenticity
of all documents submitted to us as originals and the conformity to
originals of all documents submitted to us as copies thereof, in each case
as submitted by any person other than CPS. As to various questions of fact
material to the opinions expressed below, we have relied upon (i) the
representations and warranties of CPS contained in the Underwriting
Agreement or made pursuant thereto or in connection with the closing
thereunder and (ii) statements by and certificates of officers and
representatives of CPS and others. In particular, in rendering subparagraph
(v) we have relied upon a certificate of CPS in respect of matters of fact
as to ownership of, and liens, encumbrances, equities or claims on the
Shares sold by CPS which we believe that we are justified in relying upon.
For purposes of this letter, we have assumed that the Underwriting
Agreement is a valid and binding obligation of each of you, the other
Underwriters and Orion Power Holdings, Inc. and is enforceable against each
of you, Orion Power Holdings, Inc. and the other Underwriters in accordance
with its terms.
When reference is made in this opinion to "our knowledge" or to what
is "known to us," it means, unless otherwise indicated, the actual
knowledge attributable to my representation of CPS and that of in-house
attorneys who have given substantive attention to the Underwriting
Agreement and the sale of the Shares in coordination with me.
Based on the foregoing, we are of the opinion that:
(i) CPS has been duly incorporated and is validly existing and in
good standing under the laws of the State of Maryland.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of CPS and the sale of the Shares
to be sold by CPS thereunder and the compliance by CPS with all
of the provisions of the Underwriting Agreement and the
consummation of the transactions therein contemplated will not
conflict with or result in any breach or violation of any terms
or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to us to which CPS is a party or
by which CPS is bound, or to which any of the property or
assets of CPS is subject, nor will such action result in any
violation of the provisions of the Articles of Incorporation or
By-laws of CPS, or any order, rule or regulation known to us of
any court or governmental agency or body having jurisdiction
over CPS or the property of CPS;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required under federal or
Maryland law for the sale of CPS's Shares contemplated by the
Underwriting Agreement. We express no opinion regarding any
approval (a) of the FERC under the Federal Power Act with
respect to the transactions contemplated by the Underwriting
Agreement or (b) required under the Act, state securities laws
or Blue Sky Laws;
(iv) Immediately prior to the First Time of Delivery CPS had good
and valid title to the Shares to be sold at the First Time of
Delivery by CPS under the Underwriting Agreement, free and
clear of all liens, encumbrances, equities or claims, and full
right power and authority to sell, assign, transfer and deliver
the Shares to be sold by CPS under the Underwriting Agreement;
and
(v) Good and valid title to CPS's Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred
to each of the several Underwriters, as the case may be, who
have purchased such Shares in good faith and without notice of
any such lien, encumbrance, equity or claim or any other
adverse claim within the meaning of the Uniform Commercial
Code.
This opinion is limited to the law of the State of Maryland (without
regard to the application of any principles of conflict of laws) and the
Federal law of the United States, all as in effect as of the date hereof.
The opinions in this letter are being furnished to you for your
benefit and may not be relied upon by any other Person.
Very truly yours,
Xxxxx X. Xxxx
ANNEX VII
FORM OF XXXXXX XXXXXXXX LLP COMFORT LETTER
This draft is furnished solely for the purpose of indicating the form of
letter that we would expect to be able to furnish Xxxxxxx, Sachs & Co. in
response to their request, the matters expected to be covered in the
letter, and the nature of the procedures that we would expect to carry out
with respect to such matters. Based on our discussions with Xxxxxxx, Xxxxx
& Co., it is our understanding that the procedures outlined in this draft
letter are those they wish us to follow. Unless Xxxxxxx, Sachs & Co.
informs us otherwise, we shall assume that there are no additional
procedures they wish us to follow. The text of the letter itself will
depend, of course, on the results of the procedures, which we would not
expect to complete until shortly before the letter is given and in no event
before the cutoff date indicated therein.
, 2000
---------
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxx & Co., Inc.
Credit Suisse First Boston
Deutsche Banc Alex. Xxxxx
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have audited the consolidated balance sheets of Orion Power
Holdings, Inc. ("Orion Power Holdings") and subsidiaries as of December 31,
1998 and 1999, and the consolidated statements of income, changes in
stockholders' equity and cash flows for the period from March 10, 1998
(date of inception) to December 31, 1998 and for the year ended December
31, 1999, and the related financial statement schedules all included in the
registration statement (no. 333-44118) on Form S-1 filed by Orion Power
Holdings under the Securities Act of 1933 (the Act); our reports with
respect thereto are also included in that registration statement. The
registration statement, as amended on ___________, is herein referred to as
the registration statement.
In connection with the registration statement--
1. We are independent certified public accountants with respect to Orion
Power Holdings within the meaning of the Act and the applicable rules
and regulations thereunder adopted by the SEC.
2. In our opinion, the consolidated financial statements and financial
statement schedules audited by us and included in the registration
statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules
and regulations adopted by the SEC.
3. We have not audited any financial statements of Orion Power Holdings
as of any date or for any period subsequent to December 31, 1999;
although we have conducted an audit for the year ended December 31,
1999, the purpose (and therefore the scope) of the audit was to enable
us to express our opinion on the consolidated financial statements as
of December 31, 1999, and for the year then ended, but not on the
financial statements for any interim period within that year.
Therefore, we are unable to and do not express any opinion on the
unaudited consolidated balance sheet as of June 30, 2000, and the
unaudited consolidated statements of income, changes in stockholders'
equity and cash flows for the six-month periods ended June 30, 1999 and
2000, included in the registration statement, or on the financial
position, results of operations, or cash flows as of any date or for
any period subsequent to December 31, 1999.
4. For purposes of this letter we have read the minutes of meetings of
the stockholders and the board of directors of Orion Power Holdings
and subsidiaries as of _______, 2000, officials of Orion Power
Holdings having advised us that the minutes of all such meetings
through that date were set forth therein; we have carried out other
procedures to _______, 2000, as follows (our work did not extend to
the period from _______ , 2000 to _______, 2000, inclusive):
a. With respect to the six-month periods ended June 30, 1999 and
2000, we have -
(i) Performed the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71,
Interim Financial Information, on the unaudited consolidated
balance sheet as of June 30, 2000, and unaudited
consolidated statements of income, changes in stockholders'
equity and cash flows for the six-month periods ended June
30, 1999 and 2000, included in the registration statement.
(ii) Inquired of certain officials of Orion Power Holdings
who have responsibility for financial and accounting matters
whether the unaudited consolidated financial statements
referred to in a(i) comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the
SEC.
b. With respect to the period from July 1, 2000 to _______,
2000, we have -
(i) Read the unaudited consolidated financial statements of
Orion Power Holdings and subsidiaries for ________ of both
1999 and 2000, furnished us by Orion Power Holdings,
officials of Orion Power Holdings having advised us that no
such financial statements as of any date or for any period
subsequent to _______, 2000, were available.
(ii) Inquired of certain officials of Orion Power Holdings
who have responsibility for financial and accounting matters
whether the unaudited consolidated financial statements
referred to in b(i) are stated on a basis substantially
consistent with that of the audited consolidated financial
statements included in the registration statement.
The foregoing procedures do not constitute an audit conducted in
accordance with generally accepted auditing standards. Also, they
would not necessarily reveal matters of significance with respect
to the comments in the following paragraph. Accordingly, we make
no representations regarding the sufficiency of the foregoing
procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing
procedures, however, that caused us to believe that -
a. (i) Any material modifications should be made to the
unaudited consolidated financial statements described in
4a(i), included in the registration statement, for them to
be in conformity with generally accepted accounting
principles.
(ii) The unaudited consolidated financial statements
described in 4a(i) do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the
SEC.
b. (i) At ________, 2000, there was any change in the capital
stock, increase in long-term debt, or decrease in
consolidated net current assets of stockholders' equity of
the consolidated companies as compared with amounts shown in
the June 30, 2000 unaudited consolidated balance sheet
included in the registration statement, or
(ii) for the period from July 1, 2000 to ____, 2000, there
were any decreases, as compared to the corresponding period
in the preceding year, in consolidated net sales or in the
total or per-share amounts of income before extraordinary
items or of net income, except in all instances for changes,
increases, or decreases that the registration statement
discloses have occurred or may occur.
6. As mentioned in 4b, Orion Power Holdings' officials have advised
us that no consolidated financial statements as of any date or
for any period subsequent to _______, 2000, are available;
accordingly, the procedures carried out by us with respect to
changes in financial statement items after ______, 2000, have, of
necessity, been even more limited than those with respect to the
periods referred to in 4. We have inquired of certain officials
of Orion Power Holdings who have responsibility for financial and
accounting matters whether (a) at _______, 2000, there was any
change in the capital stock, increase in long-term debt or any
decreases in consolidated net current assets or stockholders'
equity of Orion Power Holdings and subsidiaries as compared with
amounts shown on the June 30, 2000, unaudited consolidated
balance sheet included in the registration statement or (b) for
the period from July 1, 2000 to ______, 2000, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated net sales or in the total or
per-share amounts of net income. On the basis of these inquiries
and our reading of the minutes as described in 4, nothing came to
our attention that caused us to believe that there was any such
change, increase, or decrease, except in all instances for
changes, increases, or decreases that the registration statement
discloses have occurred or may occur.
7. Our audit of the consolidated financial statements for the
periods referred to in the introductory paragraph of this letter
comprised audit tests and procedures deemed necessary for the
purpose of expressing an opinion on such financial statements
taken as a whole. For none of the periods referred to therein, or
any other period, did we perform audit tests for the purpose of
expressing an opinion on individual balances of accounts or
summaries of selected transactions and, accordingly, we express
no opinion thereon.
8. For purposes of this letter, we have also read the items
identified by you on the attached copy of the registration
statement and have performed the following procedures, which were
applied as indicated with respect to the letters explained below:
A. Compared indicated financial dollar amounts, share or per
share amounts with the corresponding amount in the audited
Orion Power Holdings consolidated financial statements and
footnotes thereto included in the registration statement on
pages F-__ through F-__, and found the amounts to be in
agreement.
B. Recomputed/compared indicated amounts, dates and/or
percentages based upon audited Orion Power Holdings
consolidated financial data and found them to be in
agreement.
C. Compared indicated amounts and/or percentages to applicable
amounts reflected in various unaudited schedules and
financial statements prepared by officials of Orion Power
Holdings, having responsibility for financial and accounting
matters, compared those unaudited schedules and financial
statements to the applicable regularly maintained accounting
books and records of Orion Power Holdings and found the
amounts and percentages to be in agreement.
D. Recomputed indicated amounts and/or percentages based upon
unaudited financial data prepared by officials of Orion
Power Holdings, having responsibility for financial and
accounting matters, and found them to be in agreement.
E. Compared indicated financial dollar amounts, share or per
share amounts or percentages which we recomputed based on
the given assumptions described in the registration
statement and from the June 30, 2000 unaudited consolidated
financial statements included in the registration statement
to the unaudited pro forma schedules prepared by officials
of Orion Power Holdings, having responsibility for financial
and accounting matters, and found them to be in agreement.
In connection with the "Use of Proceeds," we make no
representation as to the reasonableness of the "Use of
Proceeds" or whether that use will actually take place.
F. Compared Orion Power Holdings' payroll records, noting the
following:
Location Pay Periods Ending Number of Employees
-------- ------------------- -------------------
MidWest Assets 6/23/00,6/24/00, 436
6/25/00,6/30/00
New York Assets 6/18/00,6/24/00, 348
6/25/00,7/l/00
Corporate 6/18/00 42
G. We compared the dollar amounts of compensation for each
individual listed in the table "Summary Compensation Table"
with the corresponding amounts shown by the individual
employee earnings records for the year 1999 and 1998 and
found them to be in agreement.
H. Compared indicated "as adjusted" consolidated financial
data, which we recomputed from the June 30, 2000 unaudited
consolidated financial statements of the Company presented
in the registration statement, to an unaudited schedule
prepared by officials of the Company, having responsibility
for financial and accounting matters, and found the amounts
to be in agreement.
I. Compared indicated dilution, which we recomputed based on
the given assumptions described in the registration
statement and from the June 30, 2000 unaudited consolidated
financial statements included in the registration statement,
to an unaudited schedule prepared by officials of the
Company, having responsibility for financial and accounting
matters, and found the amounts to be in agreement.
J. We compared amounts to executed agreements provided by the
Company and found them to be in agreement.
K. We compared amounts to unexecuted agreements provided by the
Company and found them to be in agreement.
9. It should be understood that we make no representations regarding
questions of legal interpretation or regarding the sufficiency
for your purposes of the procedures enumerated in the preceding
paragraph; also, such procedures would not necessarily reveal any
material misstatement of the amounts or percentages listed above.
Further, we have addressed ourselves solely to the foregoing data
as set forth in the registration statement and make no
representations regarding the adequacy of disclosure or regarding
whether any material facts have been omitted.
10. This letter is solely for the information of the addressees and
to assist the underwriters in conducting and documenting their
investigation of the affairs of Orion Power Holdings in
connection with the offering of the securities covered by the
registration statement, and it is not to be used, circulated,
quoted, or otherwise referred to within or without the
underwriting group for any purpose, including but not limited to
the registration, purchase, or sale of securities, nor is it to
be filed with or referred to in whole or in part in the
registration statement or any other document, except that
reference may be made to it in the underwriting agreement or in
any list of closing documents pertaining to the offering of the
securities covered by the registration statement.
ANNEX VIII
FORM OF STOCKHOLDERS' LOCK-UP AGREEMENT
Orion Power Holdings, Inc.
Lock-up Agreement
November __, 2000
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Orion Power Holdings, Inc. - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that Xxxxxxx, Xxxxx & Co., Credit Suisse
First Boston Corporation, Deutsche Bank Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated,
as representatives (the "Representatives"), propose to enter into an
underwriting agreement (the "Underwriting Agreement") on behalf of the
several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Orion Power Holdings, Inc., a Delaware
corporation (the "Company"), providing for a public offering of the Common
Stock of the Company (the "Shares") pursuant to a Registration Statement on
Form S-1 filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and
sell the Shares, and of other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the undersigned agrees
that, during the period beginning from the date of the final Prospectus
covering the public offering of the Shares and continuing to and including
the date 180 days after the date of such final Prospectus, the undersigned
will not offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of any shares of Common
Stock of the Company, or any options or warrants to purchase any shares of
Common Stock of the Company, or any securities convertible into,
exchangeable for or that represent the right to receive shares of Common
Stock of the Company, whether now owned or hereinafter acquired, owned
directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules
and regulations of the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is
designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the Undersigned's Shares even if such Shares would
be disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any short
sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of the Undersigned's
Shares or with respect to any security that includes, relates to, or
derives any significant part of its value from such Shares.
Notwithstanding the foregoing, the undersigned may (a) exercise stock
options and warrants and acquire shares with respect thereto, provided that
such shares are subject to the provisions of this Lock-Up Agreement, and
(b) transfer the Undersigned's Shares (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in writing by
the restrictions set forth herein, (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, or (iii) with the
prior written consent of Xxxxxxx, Xxxxx & Co. on behalf of the
Underwriters. For purposes of this Lock-Up Agreement, "immediate family"
shall mean any relationship by blood, marriage or adoption, not more remote
than first cousin. In addition, notwithstanding the foregoing, if the
undersigned is a corporation, the corporation may transfer the capital
stock of the Company to any wholly-owned subsidiary of such corporation;
provided, however, that in any such case, it shall be a condition to the
transfer that the transferee execute an agreement stating that the
transferee is receiving and holding such capital stock subject to the
provisions of this Agreement and there shall be no further transfer of such
capital stock except in accordance with this Agreement, and provided
further that any such transfer shall not involve a disposition for value.
The undersigned now has, and, except as contemplated by clause (a) or (b)
above, for the duration of this Lock-Up Agreement will have, good and
marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever other than as described in the
Prospectus (as defined in the Underwriting Agreement). The undersigned also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the
Undersigned's Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of
the offering. The undersigned further understands that this Lock-Up
Agreement is irrevocable and shall be binding upon the undersigned's heirs,
legal representatives, successors, and assigns.
[signature page attached]
Very truly yours,
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[Exact Name of Shareholder]
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Authorized Signature
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