NEVADA POWER COMPANY
$130,000,000
6.20% Senior Unsecured Notes, Series A due April 15, 2004
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 30, 1999
PRUDENTIAL SECURITIES INCORPORATED
PAINEWEBBER INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
c/o Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, New York 10292
Ladies and Gentlemen:
Nevada Power Company, a Nevada corporation (the "COMPANY"), proposes
to issue and sell to Prudential Securities Incorporated ("PSI"), PaineWebber
Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (together
with PSI, the "INITIAL PURCHASERS"), upon the terms and subject to the
conditions set forth in a purchase agreement dated March 25, 1999 (the "PURCHASE
AGREEMENT"), $130,000,000 aggregate principal amount of its 6.20% Senior
Unsecured Notes, Series A due April 15, 2004 (the "SERIES A NOTES"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company agrees with the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Series A Notes,
the Exchange Notes (as defined herein) and the Private Exchange Notes (as
defined herein) (collectively, the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. The Company shall (i) prepare and,
not later than 90 days following the date of original issuance of the Series A
Notes (the "ISSUE DATE"), file with the Commission a registration statement (the
"EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the
Securities Act with respect to a proposed offer to the Holders of the Series A
Notes (the "REGISTERED EXCHANGE OFFER") to issue and deliver to such Holders, in
exchange for the Series A Notes, a like aggregate principal amount of debt
securities of the Company (the "EXCHANGE NOTES") that are identical in all
material respects to the Series A Notes, except for the transfer restrictions
relating to the Series A Notes, (ii) use its reasonable efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act no
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later than 180 days after the Issue Date and the Registered Exchange Offer to be
consummated no later than 210 days after the Issue Date (such later date, the
"CONSUMMATION DEADLINE") and (iii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "EXCHANGE OFFER
REGISTRATION PERIOD"). The Exchange Notes will be issued under the Indenture or
an indenture (the "EXCHANGE NOTES INDENTURE" ) among the Company and the Trustee
or such other bank or trust company that is reasonably satisfactory to the
Initial Purchasers, as trustee (the "EXCHANGE NOTES TRUSTEE"), such indenture to
be identical in all material respects to the Indenture, except for the transfer
restrictions relating to the Series A Notes (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of the Registered Exchange Offer to enable each Holder electing to
exchange Series A Notes for Exchange Notes (assuming that such Holder (i) is not
an affiliate of the Company or an Exchanging Dealer (as defined herein) that
fails to comply with the requirements of the next sentence, (ii) is not an
Initial Purchaser holding Series A Notes that have, or that are reasonably
likely to have, the status of an unsold allotment in an initial distribution,
(iii) acquires the Exchange Notes in the ordinary course of such Holder's
business and (iv) has no arrangements or understandings with any person to
participate in the distribution of the Exchange Notes) and to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Company,
the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, each Holder that is a broker-dealer electing to exchange Series A Notes,
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Notes (an "EXCHANGING DEALER") is required to
deliver a prospectus containing substantially the information set forth in Annex
A hereto on the cover, in Annex B hereto in the "The Exchange Offer" section and
in Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Series A Notes acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Company shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Series
A Notes held by such Holder (the "PRIVATE EXCHANGE"), a like aggregate principal
amount of debt securities of the Company (the "PRIVATE EXCHANGE NOTES") that are
identical in all material respects to the Exchange Notes, except for the
transfer restrictions relating to such Private Exchange Notes. The Private
Exchange Notes will be issued under the same indenture as the Exchange Notes,
and the Company shall use its reasonable efforts to cause the Private Exchange
Notes to bear the same CUSIP number as the Exchange Notes.
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In connection with the Registered Exchange Offer, the Company shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer if required by applicable law) after the date on which notice of
the Registered Exchange Offer is mailed to the Holders;
(c) use the services of a depositary for the Registered Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Series A Notes at any time
prior to the close of business, New York City time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Series A Notes properly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancellation all Series A Notes so
accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to
the Series A Notes of such Holder so accepted for exchange.
The Company shall use its reasonable efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; PROVIDED that (i) in the case where such
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Notes held by them and (ii)
the Company shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period of not less than 180 days after the consummation of
the Registered Exchange Offer.
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The Indenture or the Exchange Notes Indenture, as the case may be,
shall provide that the Series A Notes, the Exchange Notes and the Private
Exchange Notes shall vote and consent together on all matters as one class and
that none of the Series A Notes, the Exchange Notes or the Private Exchange
Notes will have the right to vote or consent as a separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and in the Private Exchange,
respectively, will accrue from the last interest payment date on which interest
was paid on the Series A Notes surrendered in exchange therefor or, if no
interest has been paid on the Series A Notes, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes to be received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Series A Notes or the Exchange Notes within the meaning of
the Securities Act, (iii) such Holder is not an affiliate of the Company or, if
it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of Exchange Notes and (v) if such
Holder is a broker-dealer that will receive Exchange Notes for its own account
in exchange for Series A Notes that were acquired as a result of market-making
or other trading activities, it will deliver a prospectus in connection with any
resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not as of the consummation of the
Registered Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
2. SHELF REGISTRATION. (a) If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof or (ii) any Holder of Series A Notes which are Transfer Restricted Notes
(as defined below) notifies the Company prior to the 20th business day following
the Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the Registered Exchange Offer, (B) such
Holder may not resell the Exchange Notes acquired by it in the Registered
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is a
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broker-dealer and holds the Series A Notes acquired directly from the Company or
any of its affiliates, then the Company shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above
and (ii) the date on which the Company receives the notice specified in
clause (a)(ii) above (such earlier date, the "FILING DEADLINE"), a shelf
registration statement on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Notes by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "SHELF
REGISTRATION STATEMENT" and, together with any Exchange Offer Registration
Statement, a "REGISTRATION STATEMENT"), and
(y) use its reasonable efforts to cause such Shelf Registration
Statement to become effective on or prior to 90 days after the Filing
Deadline (such 90th day, the "EFFECTIVENESS DEADLINE").
(b) The Company shall use its reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer
Restricted Notes for a period ending on the earlier of (i) two years from
the Issue Date or such shorter period that will terminate when all the
Transfer Restricted Notes covered by the Shelf Registration Statement have
been sold pursuant thereto and (ii) the date on which the Series A Notes
become eligible for resale without volume restrictions pursuant to Rule 144
under the Securities Act (in any such case, such period being called the
"SHELF REGISTRATION PERIOD"). The Company shall be deemed not to have used
its reasonable efforts to keep the Shelf Registration Statement effective
during the requisite period if the Company voluntarily takes any action
that would result in Holders of Transfer Restricted Notes covered thereby
not being able to offer and sell such Transfer Restricted Notes during that
period, unless such action is required by applicable law, PROVIDED,
HOWEVER, that the foregoing shall not apply to actions taken by the Company
in good faith and for valid business reasons (not including avoidance of
its obligations hereunder), including, without limitation, the acquisition
or divestiture of assets, so long as the Company within 60 days thereafter
complies with the requirements of Section 4(j) hereof. Any such period
during which the Company fails to keep the registration statement effective
and usable for offers and sales of Series A Notes and Exchange Notes or any
period during the pendency of any stop order, injunction or other order
prohibiting the sale of Series A Notes or Exchange Notes under the
registration statement is referred to as a "Suspension Period." A
Suspension Period shall commence on and include the date that the Company
gives notice that the Shelf Registration Statement is no longer effective
or the prospectus included therein is no longer usable for offers and sales
of Series A Notes and Exchange Notes and shall end on the date when each
Holder of Series A Notes and Exchange Notes covered by such registration
statement either receives the copies of the supplemented or amended
prospectus contemplated by Section 4(j) hereof or is advised in writing by
the Company that use of the prospectus may be resumed. If one or more
Suspension Periods occur, the
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two-year time period referenced above shall be extended by the number of
days in each such Suspension Period.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with
respect to information included therein in reliance upon or in conformity
with written information furnished to the Company by or on behalf of any
Holder specifically for use therein (the "HOLDERS' INFORMATION")) does 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 not misleading and (iii) any prospectus forming part of any Shelf
Registration Statement and any supplement to such prospectus (in either
case, other than with respect to Holders' Information) does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. LIQUIDATED DAMAGES. (a) The parties hereto agree that the
Holders of Transfer Restricted Notes will suffer damages if (i) the applicable
Registration Statement is not filed with the Commission on or prior to 90 days
after the Issue Date, (ii) the Exchange Offer Registration Statement is not
declared effective within 180 days after the Issue Date, (iii) the Registered
Exchange Offer is not consummated on or prior to the Consummation Deadline, (iv)
the Shelf Registration Statement is not declared effective on or prior to the
Effectiveness Deadline, or (v) the Shelf Registration Statement is filed and
declared effective on or prior to the Effectiveness Deadline but shall
thereafter cease to be effective (at any time that the Company is obligated to
maintain the effectiveness thereof) without being succeeded within 60 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (v), a "REGISTRATION DEFAULT"). The parties
hereto agree that it would not be feasible to ascertain the extent of such
damages. Accordingly, the parties agree that the Company will be obligated to
pay liquidated damages to each Holder of Transfer Restricted Notes, during the
period of one or more such Registration Defaults, in an amount determined by
multiplying .25% by the principal amount of Transfer Restricted Notes,
multiplied by a fraction, the numerator of which is the number of days such
amount accrued during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360. Such
period shall commence (i) on the 91st day after the Issue Date, (ii) the 181st
day after the Issue Date, (iii) the day after the Consummation Deadline, (iv)
the day after the Effectiveness Deadline, or (v) the 61st day after the Shelf
Registration Statement ceases to be effective and the Company has failed to
comply with Section 2(b), as the case may be, and shall end on the date (i) the
applicable Registration Statement is filed, (ii) the Exchange Offer Registration
Statement is declared effective, (iii) the Registered Exchange Offer is
consummated, (iv) the Shelf Registration Statement is declared effective or (v)
the Shelf Registration Statement again becomes effective, as the case may be.
Following the cure of all Registration Defaults, the accrual of liquidated
damages will cease.
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As used herein, the term "'Transfer Restricted Notes" means (i) each Series
A Note until the date on which such Series A Note has been exchanged for a
freely transferable Exchange Note in the Registered Exchange Offer, (ii) each
Series A Note or Private Exchange Note until the date on which it has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) each Series A Note or Private
Exchange Note until the date on which it is distributed to the public pursuant
to Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k)
under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Company
shall not be required to pay liquidated damages to a Holder of Transfer
Restricted Notes if such Holder failed to comply with its obligations to make
the representations set forth in the penultimate paragraph of Section 1 or
failed to provide the information required to be provided by it, if any,
pursuant to Section 4(n).
(b) The Company shall notify the Trustee and the Paying Agent under
the Indenture promptly upon the happening of each and every Registration
Default. The Company shall pay the liquidated damages due on the Transfer
Restricted Notes by depositing with the Paying Agent (which may not be the
Company for these purposes), in trust, for the benefit of the Holders thereof,
prior to 10:00 a.m., New York City time, on the next interest payment date
specified by the Indenture and the Series A Notes, sums sufficient to pay the
liquidated damages then due. The liquidated damages due shall be payable on each
interest payment date specified by the Indenture and the Series A Notes to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Notes by reason of a Registration Default.
4. REGISTRATION PROCEDURES. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall use its reasonable efforts to reflect
in each such document, when so filed with the Commission, such comments as
any Initial Purchaser may reasonably propose; (ii) include substantially
the information set forth in Annex A hereto on the cover, in Annex B hereto
in the "The Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include substantially the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and (iii) if requested by any Initial
Purchaser, include the information required by Item 507 or 508 of
Regulation S-K, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement.
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(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Series A Notes,
the Exchange Notes or the Private Exchange Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do
not 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.
(c) The Company will use its reasonable efforts to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if any such Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Notes included within the
coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the
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Company consents to the use of such prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Notes in connection with the offer and sale of the Transfer Restricted
Notes covered by such prospectus or any amendment or supplement thereto.
(f) The Company will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge,
at least one conformed copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules and, if any Initial Purchaser or Exchanging Dealer or any
such Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each
Initial Purchaser, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement or the Shelf Registration Statement
and any amendment or supplement thereto as such Initial Purchaser,
Exchanging Dealer or other persons may reasonably request; and the Company
consents to the use of such prospectus or any amendment or supplement
thereto by any such Initial Purchaser, Exchanging Dealer or other persons,
as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company will use its reasonable efforts to register or qualify, or
cooperate with the Holders of Series A Notes, Exchange Notes or Private
Exchange Notes included therein and their respective counsel in connection
with the registration or qualification of, such Series A Notes, Exchange
Notes or Private Exchange Notes for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Holder reasonably requests
in writing and do any and all other acts or things reasonably necessary to
enable the offer and sale in such jurisdictions of the Series A Notes,
Exchange Notes or Private Exchange Notes covered by such Registration
Statement; PROVIDED that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process or to taxation in any such jurisdiction where it is not then so
subject.
(i) The Company will cooperate with the Holders of Series A Notes,
Exchange Notes or Private Exchange Notes to facilitate the timely
preparation and delivery of certificates representing Series A Notes,
Exchange Notes or Private Exchange Notes to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders thereof may
request in writing prior to sales of Series A Notes, Exchange Notes or
Private Exchange Notes pursuant to such Registration Statement.
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(j) If (i) any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company is required to maintain an
effective Registration Statement or (ii) any Suspension Period remains in
effect for more than 60 days after the occurrence thereof, the Company will
promptly prepare and file with the Commission a post-effective amendment to
the Registration Statement or a supplement to the related prospectus or
file any other required document so that, as thereafter delivered to
purchasers of the Series A Notes, Exchange Notes or Private Exchange Notes
from a Holder, the prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Series A Notes,
the Exchange Notes and the Private Exchange Notes, as the case may be, and
provide the applicable trustee with certificates for the Series A Notes,
the Exchange Notes or the Private Exchange Notes, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Company will comply in all material respects with all
applicable rules and regulations of the Commission and the Company will
make generally available to its security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earning statement satisfying the provisions of Section 11(a) of the
Securities Act; PROVIDED that in no event shall such earning statement be
delivered later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Company will cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture
Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted Notes
to be registered pursuant to any Shelf Registration Statement to furnish to
the Company such information concerning the Holder and the distribution of
such Transfer Restricted Notes as the Company may from time to time
reasonably request for inclusion in such Shelf Registration Statement, and
the Company may exclude from such registration the Transfer Restricted
Notes of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Notes to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Notes that, upon receipt of any
notice from the Company pursuant to Section 2(b) or 4(b)(ii) through (v),
such Holder will discontinue disposition of such Transfer Restricted Notes
until such Holder's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"ADVICE") by the
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Company that the use of the applicable prospectus may be resumed. If the
Company shall give any notice under Section 2(b) or 4(b)(ii) through (v)
during the period that the Company is required to maintain an effective
Registration Statement (the "EFFECTIVENESS PERIOD"), such Effectiveness
Period shall be extended by the number of days during such period from and
including the date of the giving of such notice to and including the date
when each seller of Transfer Restricted Notes covered by such Registration
Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company shall
enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action,
if any, as Holders of a majority in aggregate principal amount of the
Series A Notes, Exchange Notes and Private Exchange Notes being sold or the
managing underwriters (if any) shall reasonably request in order to
facilitate any disposition of Series A Notes, Exchange Notes or Private
Exchange Notes pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection at the location where they are
normally kept and during normal business hours by a representative of, and
Special Counsel (as defined below) acting for, Holders of a majority in
aggregate principal amount of the Series A Notes, Exchange Notes and
Private Exchange Notes being sold and any underwriter participating in any
disposition of Series A Notes, Exchange Notes or Private Exchange Notes
pursuant to such Shelf Registration Statement, all relevant financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use its reasonable efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or
any such underwriter (an "INSPECTOR") in connection with such Shelf
Registration Statement. Each Inspector shall agree in writing to keep
confidential all information received pursuant to this Section 4(q) (the
"INFORMATION"), except that each Inspector and Holder shall be permitted to
disclose Information (i) that has generally been made available to the
public, (ii) that has become available to such Inspector or Holder on a
nonconfidential basis from a source other than the Company, its affiliates
or its accountants or counsel, (iii) if such Inspector or Holder reasonably
believes upon the advice of counsel that disclosure of such Information is
necessary or advisable to insure compliance by such Inspector or Holder
with the Securities Act or any other securities laws, (iv) to the extent
otherwise required by applicable laws and regulations or by subpoena or
similar legal process, (v) in connection with any suit, action or
proceeding to which it is a party relating to the Series A Notes or any
securities laws, (vi) to any regulatory authority having jurisdiction over
such Inspector or Holder upon the request of such regulatory authority or
(vii) to its officers, directors, employees, agents or representatives on a
confidential and need-to-know basis.
12
(r) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Series A Notes, Exchange Notes and Private Exchange Notes being sold, their
Special Counsel or the managing underwriters (if any) in connection with
such Shelf Registration Statement, use its reasonable efforts to cause (i)
its counsel to deliver an opinion relating to the Shelf Registration
Statement and the Series A Notes, Exchange Notes or Private Exchange Notes,
as applicable, in customary form and substance, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Series A Notes,
Exchange Notes and Private Exchange Notes being sold, their Special Counsel
or the managing underwriters (if any) and (iii) its independent public
accountants to provide a comfort letter or letters in customary form and
substance, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. REGISTRATION EXPENSES. The Company will bear all expenses
incurred in connection with the performance of its obligations under Sections 1,
2, 3 and 4 and the Company will reimburse the Initial Purchasers and the Holders
for the reasonable fees and disbursements of one firm of attorneys (in addition
to any local counsel) chosen by the Holders of a majority in aggregate principal
amount of the Series A Notes, the Exchange Notes and the Private Exchange Notes
to be sold pursuant to each Registration Statement (the "SPECIAL COUNSEL")
acting for the Initial Purchasers or Holders in connection therewith.
6. INDEMNIFICATION. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company shall indemnify and hold harmless each Holder
(including, without limitation, any such Initial Purchaser or Exchanging
Dealer), its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (collectively
referred for purposes of this Section 6 and Section 7 as a Holder) from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Series A Notes, Exchange
Notes or Private Exchange Notes), to which that Holder may become subject,
whether commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each Holder promptly upon demand for any legal or other expenses reasonably
incurred by that Holder in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action 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, liability or action arises
out of, or is based upon,
13
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Holders' Information; and PROVIDED, FURTHER, that with respect to any such
untrue statement in or omission from any related preliminary prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim,
damage, liability or action received Series A Notes, Exchange Notes or Private
Exchange Notes to the extent that such loss, claim, damage, liability or action
of or with respect to such Holder results from the fact that both (A) a copy of
the final prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Series A Notes, Exchange Notes or
Private Exchange Notes to such person and (B) the untrue statement in or
omission from the related preliminary prospectus was corrected in the final
prospectus unless such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Company and its respective affiliates, officers,
directors, employees, representatives and agents, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 6(b) and Section 7 as
the Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any Holders' Information furnished to the Company by such
Holder, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Series A Notes, Exchange Notes or
Private Exchange Notes pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and PROVIDED, FURTHER, that the failure to
notify the indemnifying party shall not relieve it from any
14
liability which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than the reasonable costs of investigation;
PROVIDED, HOWEVER, that an indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (iii) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (iv)
the indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or reasonably could be expected to be a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
7. CONTRIBUTION. If the indemnification provided for in Section 6
is unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b) otherwise than as a result of the limitations therein
contained, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof,
15
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Series A Notes, on the
one hand, and a Holder with respect to the sale by such Holder of Series A
Notes, Exchange Notes or Private Exchange Notes, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and such Holder, on the other, with respect to the actions,
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and a Holder, on the other, with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Series A Notes (before deducting expenses) received by or on behalf of
the Company as set forth in the table on the cover of the Offering Memorandum,
on the one hand, bear to the total proceeds received by such Holder with respect
to its sale of Series A Notes, Exchange Notes or Private Exchange Notes, on the
other. 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 the Company or
information supplied by the Company, on the one hand, or to any Holders'
Information supplied by such Holder, on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by PRO RATA allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Series A Notes, Exchange Notes or Private
Exchange Notes shall not be required to contribute any amount in excess of the
amount by which the total price at which the Series A Notes, Exchange Notes or
Private Exchange Notes sold by such indemnifying party to any purchaser exceeds
the amount of any damages which such indemnifying party has otherwise paid or
become liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. RULES 144 AND 144A. The Company shall use its reasonable efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the written request of any Holder of
Transfer Restricted Notes, make publicly available other information required to
be made available by Rule 144 or 144A so long as necessary to permit sales of
such Holder's securities pursuant to Rules 144 and 144A. The Company covenants
that it will take such further action as any Holder of Transfer Restricted Notes
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions
16
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer
Restricted Notes, the Company shall deliver to such Holder a written statement
as to whether they have complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Notes covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Notes
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company so agrees and has obtained the written consent of Holders of a majority
in aggregate principal amount of the Series A Notes, the Exchange Notes and the
Private Exchange Notes, taken as a single class. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Series A Notes,
Exchange Notes or Private Exchange Notes are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Series A Notes, the Exchange Notes and the Private
Exchange Notes being sold by such Holders pursuant to such Registration
Statement.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to each of the Initial Purchasers;
(2) if to an Initial Purchaser, initially at its address set forth in
the Purchase Agreement; and
17
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
facsimile machine, if sent by facsimile.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its respective successors and assigns.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by facsimile) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) DEFINITION OF TERMS. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW.
(1) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF.
(2) Any legal action or proceeding relating in any way to this
Agreement, may be brought and enforced in the federal courts of the United
States for the Southern District of New York, and the Company accepts for
itself and in respect of its property, generally, irrevocably and
unconditionally, the jurisdiction of each such court in respect of any such
action or proceeding but only such action or proceeding; PROVIDED that, if
for whatever reason the federal courts of the United States for the
Southern District of New York will not or cannot hear such action or
proceeding, it may be brought and enforced in the courts of the State of
New York in The City of New York, Borough of Manhattan. The Company agrees
that a judgment, after exhaustion of all available appeals, in any such
action or proceeding shall be conclusive and binding upon, and may be
enforced in any other jurisdiction by a suit upon such judgment, a
certified copy of which shall be conclusive evidence of the judgment. The
Company further irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
18
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to such party, at its address as set forth in the
Purchase Agreement, such service to become effective 30 days after such
mailing. Nothing herein shall affect the right of any Initial Purchaser to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company in any other
jurisdiction.
(h) REMEDIES. In the event of a breach by the Company or by any
Holder of any of its obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of its obligations under Sections 1 or 2
hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by each such
person of any of the provisions of this Agreement and hereby further agree that,
in the event of any action for specific performance in respect of such breach,
each such person shall waive the defense that a remedy at law would be adequate.
(i) NO INCONSISTENT AGREEMENTS. The Company represents, warrants and
agrees that, except as described in the Offering Memorandum, (i) it has not
entered into, shall not, on or after the date of this Agreement, enter into any
agreement that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof, (ii) it has not
previously entered into any agreement which remains in effect granting any
registration rights with respect to any of its debt securities to any person and
(iii) (with respect to the Company) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount of the then outstanding Transfer Restricted Notes, it shall not
grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of this Agreement.
(j) NO PIGGYBACK ON REGISTRATIONS. Except as described in the
Offering Memorandum, neither the Company nor any of its security holders (other
than the Holders of Transfer Restricted Notes in such capacity) shall have the
right to include any securities of the Company in any Shelf Registration or
Registered Exchange Offer other than Transfer Restricted Notes.
(k) SEVERABILITY. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that
19
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
[Remainder of this page is intentionally left blank]
20
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Initial Purchasers.
Very truly yours,
NEVADA POWER COMPANY
By:
---------------------------
Name:
Title:
Accepted:
PRUDENTIAL SECURITIES INCORPORATED
PAINEWEBBER INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: Prudential Securities Incorporated
By:
---------------------------
Authorized Signatory
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Series A Notes, where such Series A Notes were acquired by the
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Series A
Notes where such Series A Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. [In addition, until [ ] 199[ ], all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.]
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Series A Notes) other than commissions or concessions of
any broker-dealers and will indemnify the Holders of the Series A Notes
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Series A Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
