Exhibit 1.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 16, 1998 (this
"Agreement"), among CINERGY CORP., a Delaware corporation (the "Company") and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, ABN AMRO Incorporated and Chase Securities
Inc. as the initial purchasers (the "Initial Purchasers") of the 6.53%
Debentures due 2008 of the Company.
This Agreement is made pursuant to the Purchase Agreement, dated as of
December 9, 1998, among the Company and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase agreement, the Company has agreed to provide the registration rights
provided for in the Agreement to the Initial Purchasers and their respective
direct and indirect transferees. The execution of the Agreement is a condition
to the closing of the transactions contemplated by the Purchase Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following
terms shall have the following respective meanings:
(a) "Closing Date" means the date on which the Debentures
are initially issued.
(b) "Commission" means the Securities and Exchange
Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
(c) "Debentures" means the 6.53 % Debentures due 2008, to be
issued under the Indenture and sold by the Company to the Initial
Purchasers, and Debentures (other than Exchange Debentures) issued
in exchange therefor or in lieu thereof pursuant to the Indenture.
(d) "Effectiveness Period" means the period commencing with
the date hereof and ending on the date that all Debentures have
ceased to be Registrable Debentures.
(e) "Effective Time", in the case of (i) an Exchange Offer,
means the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the
Exchange Offer Registration Statement otherwise becomes effective
and
(ii) a Shelf Registration, means the time and date as of
which the Commission declares the Shelf Registration effective or
as of which the Shelf Registration otherwise becomes effective.
(f) "Exchange Act" means the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time
to time.
(g) "Exchange Offer" has the meaning assigned thereto in
Section 2(a).
(h) "Exchange Offer Registration Statement" has the meaning
assigned thereto in Section 2(a).
(i) "Exchange Registration" has the meaning assigned thereto
in Section 3(f).
(j) "Exchange Debentures" has the meaning assigned thereto
in Section 2(a).
(k) "Holder" means each Initial Purchaser for so long as it
owns any Registrable Debentures, and such of its respective
successors and assigns who acquire Registrable Debentures,
directly or indirectly, from such person or from any successor or
assign of such person, in each case for so long as such person
owns any Registrable Debentures.
(l) "Indenture" means the Indenture, dated as of December
16, 1999, between the Company and The Fifth Third Bank, as
Trustee, as the same shall be amended from time to time.
(m) "Initial Purchasers" mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, Chase Securities Inc., and ABN AMRO Incorporated.
(n) "Person" means a corporation, association, partnership,
limited liability company, business, individual, or any other
entity or organization, including any government or political
subdivision thereof or governmental agency.
(o) "Purchase Agreement" means the Purchase Agreement dated
as of December 9, 1998 among the Company and the Initial
Purchasers.
(p) "Registrable Debentures" means the Debentures; provided,
however, that the Debentures shall cease to be Registrable
Debentures
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when (i) the Debentures have been exchanged for Exchange Debentures in
an Exchange Offer as contemplated in Section 2(a); (ii) in the
circumstances contemplated by Section 2(b), a registration statement
registering the Debentures under the Securities Act has been declared
or becomes effective and the Debentures have been sold or otherwise
transferred by the holder thereof pursuant to such effective
registration statement; (iii) the Debentures are sold pursuant to Rule
144 under circumstances in which any legend borne by the Debentures
relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or the Debentures are eligible
to be sold pursuant to paragraph (k) of Rule 144; or (iv) the
Debentures shall cease to be outstanding.
(q) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(r) "Additional Interest" has the meaning assigned thereto
in Section 2(c).
(s) "Registration Expenses" has the meaning assigned thereto
in Section 4.
(t) "Resale Period" means the period beginning on the date
the Shelf Registration becomes effective and ending on the earlier
of (i) the Shelf Registration ceasing to be effective or (ii) the
second anniversary of the Closing Date.
(u) "Restricted Holder" means (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a
holder who acquires Exchange Debentures outside the ordinary
course of such holder's business, (iii) a holder who has
arrangements or understandings with any person to participate in
the Exchange Offer for the purpose of distributing Exchange
Debentures, or (iv) a broker-dealer who receives Debentures for
its own account but did not acquire the Debentures as a result of
market-making activities or other trading activities.
(v) "Rule 144," "Rule 405" and "Rule 415" means, in each
case, such rule promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
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(w) "Securities Act" means the Securities Act of 1933 and
the rules and regulations promulgated by the SEC thereunder, all
as the same shall be amended from time to time.
(x) "Shelf Registration Statement" has the meaning assigned
thereto in Section 2(b).
(y) "Trust Indenture Act" means the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended
from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise requires,
any reference to a statute, rule or regulation refers to the same (including
any successor statute, rule or regulation thereto) as it may be amended from
time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company agrees
to use its reasonable best efforts to file under the Securities
Act a registration statement (the "Exchange Offer Registration
Statement") relating to an offer to exchange (the "Exchange
Offer") any and all of the Debentures for a like aggregate amount
of Debentures issued by the Company, which have the same terms as
the Debentures (and are entitled to the benefits of a trust
indenture which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective
registration statement under the Securities Act, do not contain
restrictions on transfers and do not contain provisions for the
additional interest contemplated in Section 2(c) below (such new
Debentures hereinafter called "Exchange Debentures"). The Company
agrees to use its reasonable best efforts to cause the Exchange
Offer Registration Statement to become effective under the
Securities Act within 180 days after the Closing Date. The
Company agrees to use its reasonable best efforts to register the
Exchange Offer under the Securities Act on the appropriate form
and to comply with all applicable requirements of the Securites
Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Company further agrees to use its
reasonable best efforts to commence and complete the Exchange
Offer promptly after the Exchange Offer Registration Statement has
become effective for all Debentures that have
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been properly tendered and not withdrawn on or prior to the expiration
of the Exchange Offer. The Exchange Offer will be deemed completed
only (i) if the Exchange Debentures received by holders (other than
Restricted Holders) in the Exchange Offer for Debentures are, upon
receipt, transferable by each such holder without restriction imposed
thereon by the Securities Act or the Exchange Act and without material
restrictions imposed thereon by the blue sky or securities laws of a
substantial majority of the States of the United States of America and
(ii) upon the Company having exchanged, pursuant to the Exchange
Offer, Exchange Debentures for all Debentures that have been properly
tendered and not withdrawn before the expiration of the Exchange
Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer.
(b) If (i) because of any change in law or in applicable
interpretations by the staff of the Commission, the Company is not
permitted to effect the Exchange Offer or (ii) in the case of any
holder, other than a Restricted Holder, that participates in the
Exchange Offer, such holder does not receive Exchange Debentures
on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of the Company within
the meaning of the Securities Act), then in addition to or in lieu
of conducting the Exchange Offer contemplated by Section 2(a), the
Company shall file under the Securities Act as promptly as
practicable a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by
the holders of, all of the Registrable Debentures, pursuant to
Rule 415 or any similar rule that may be adopted by the Commission
(the "Shelf Registration Statement"). The Company agrees to use
its reasonable best efforts to cause the Shelf Registration
Statement to become or be declared effective and to keep such
Shelf Registration Statement continuously effective for a period
ending on the earlier of (i) the second anniversary of the Closing
Date or (ii) such time as there are no longer any Registrable
Debentures outstanding. The Company further agrees to supplement
or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable
to the registration form used for such Shelf Registration
Statement or by the Securities Act or rules and regulations
thereunder for shelf registrations, and the Company agrees to
furnish to the holders of the Registrable Debentures copies of any
such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
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(c) If any of the following events (any such event a
"Registration Default") shall occur, then, as liquidated damages,
additional interest (the "Additional Interest") shall become
payable in respect of the Debentures as follows:
(i) if the Exchange Offer Registration Statement or a
Shelf Registration Statement is not filed with the Commission
within 150 days following the Closing Date, then commencing
on the 151st day after the Closing Date, Additional Interest
shall accrue on the principal amount of the Debentures at a
rate of 0.25% per annum; or
(ii) if neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by
the Commission on or prior to the 180th day following the
Closing Date, then commencing on the 181st day after the
Closing Date, Additional Interest shall accrue on the
principal amount of the Debentures at a rate of 0.25% per
annum; or
(iii) if either (A) the Company has not exchanged Exchange
Debentures for all Debentures validly tendered and not
withdrawn, in accordance with the terms of the Exchange
Offer, on or prior to 35 days after the date on which the
Exchange Offer Registration Statement was declared effective,
or (B) if applicable, the Shelf Registration Statement has
been declared effective but such Shelf Registration Statement
ceases to be effective at any time prior to two years from
the Closing Date, then commencing on (x) the 36th day after
such effective date, in the case of (A) above, or (y) the day
such Shelf Registration Statement ceases to be effective, in
the case of (B) above, Additional Interest shall accrue on
the principal amount of Debentures at a rate of 0.25% per
annum.
provided, however, that the Additional Interest rate on the Debentures, shall
not exceed in the aggregate 0.25% per annum; provided further, however, that
(1) upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Debentures for all Debentures validly tendered and not
withdrawn (in the case of clause (iii) (A) above), or upon the effectiveness of
the Shelf Registration Statement which had ceased to remain effective (in the
case of clause (iii) (B) above), or (4) upon the termination of certain
transfer restrictions on the Debentures as a result of the
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application of Rule 144(k), Additional Interest on the Debentures as a result
of such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(d) Any reference herein to a registration statement shall
be deemed to include any document incorporated therein by
reference as of the applicable Effective Time and any reference
herein to any post-effective amendment to a registration statement
shall be deemed to include any document incorporated therein by
reference as of a time after such Effective Time.
(e) Notwithstanding any other provision of this Agreement,
no holder of Registrable Debentures who does not comply with the
provisions of Section 3(d), if applicable, shall be entitled to
receive Additional Interest unless and until such holder complies
with the provisions of such section, if applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer
or the Shelf Registration Statement, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with
respect to the Shelf Registration Statement, if applicable, the
Company shall, as soon as reasonably practicable (or as otherwise
specified herein):
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration Statement on
any form which may be utilized by the Company and which shall
permit the disposition of the Registrable Debentures in
accordance with the intended method or methods thereof, as
specified in writing by the holders of the Registrable
Debentures, and use its reasonable best efforts to cause such
registration statement to become effective as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for
the
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period specified in Section 2(b) and as may be required by
the applicable rules and regulations of the Commission and
the instructions applicable to the form of such registration
statement, and furnish to the holders of the Registrable
Debentures copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with
the Commission;
(iii) comply, as to all matters within the Company's
control, with the provisions of the Securities Act with
respect to the disposition of all of the Registrable
Debentures covered by such registration statement in
accordance with the intended methods of disposition by the
holders thereof provided for in such registration statement;
(iv) provide to any of (A) the holders of the Registrable
Debentures to be included in such registration statement, (B)
the underwriters (which term, for purposes of this Agreement,
shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any,
thereof, (C) the sales or placement agent, if any, therefor,
(D) counsel for such underwriters or agent and (E) not more
than one counsel for all the holders of such Registrable
Debentures who so request of the Company in writing the
opportunity to participate in the preparation of such
registration statement, each prospectus included therein or
filed with the Commission and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the Resale Period,
make available at reasonable times at the Company's principal
place of business or such other reasonable place for
inspection by the persons referred to in Section 3(b)(iv),
who shall certify to the Company that they have a current
intention to sell their Registrable Debentures pursuant to
the Shelf Registration Statement, such financial and other
information and books and records of the Company, and cause
the officers, employees, counsel and independent certified
public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that
each such party shall be required to maintain in confidence
and not to disclose to any other person any information or
records reasonably designated
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by the Company in writing as being confidential, until such
time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to
a subpoena or order of any court or other governmental agency
or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall
have given the Company prompt prior written notice of such
requirement and the opportunity to contest the same or seek
an appropriate protective order), or (C) such information is
required to be set forth in such registration statement or
the prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such
prospectus in order that such registration statement,
prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(vi) promptly notify the selling holders of Registrable
Debentures, the sales or placement agent, if any, therefor
and the managing underwriter or underwriters, if any, thereof
named in the Shelf Registration Statement or a supplement
thereto, and confirm such notice in writing, (A) when such
registration statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when
the same has become effective, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of
such registration statement or the initiation or written
threat of any proceedings for that purpose, (C) of the
receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable
Debentures for sale in any jurisdiction or the initiation or
written threat of any proceeding for such purpose, or (D) at
any time when a prospectus is required to be delivered under
the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder;
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(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment
thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder of
Registrable Debentures, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the
Commission relating to the terms of the sale of such
Registrable Debentures, including information with respect to
the principal amount of Registrable Debentures being sold by
such holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the
offering price of such Registrable Debentures and any
discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the
offering of the Registrable Debentures to be sold by such
holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or
post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(ix) furnish to each holder of Registrable Debentures,
each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel
referred to in Section 3(b)(iv) an executed copy (or, in the
case of a holder of Registrable Debentures, a conformed copy)
of such registration statement, each such amendment or
supplement thereto (in each case including all exhibits
thereto) and such number of copies of such registration
statement (excluding exhibits thereto) and of the prospectus
included in such registration statement (including each
preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission
thereunder; and the Company hereby consents to the use of
such prospectus (including any such preliminary or summary
prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each
case in the form most recently provided to such person by the
Company in connection with the offering and sale of the
Registrable Debentures covered by the prospectus (including
any
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such preliminary or summary prospectus) or any supplement or
amendment thereto; and
(x) use its reasonable best efforts to (A) register or
qualify the Registrable Debentures to be included in such
registration statement under such securities laws or blue sky
laws of such United States jurisdictions as any holder of
such Registrable Debentures and each placement or sales
agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, and (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf
Registration Statement is required to remain effective under
Section 2(b) and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its
distribution of Debentures pursuant to such registration
statement but in any event not later than the date through
which the Company is required to keep the Shelf Registration
Statement effective pursuant to Section 2(b); provided,
however, that the Company shall not be required for any such
purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(b)(x), (2)
consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders.
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company, such obligation shall be
subject to the provision of such information by such party; provided that the
Company shall use its reasonable best efforts to obtain the necessary
information from any party responsible for providing such information.
(c) In the event that the Company would be required,
pursuant to Section 3(b)(vi)(D), to notify the selling holders of
Registrable Debentures, the placement or sales agent, if any,
therefor or the managing underwriters, if any, thereof named in
the Shelf Registration Statement or a supplement thereto of the
existence of the circumstances described therein, the Company
shall promptly prepare and furnish to each such holder, to each
placement or sales agent, if any, and to each such underwriter, if
any, a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of
Registrable Debentures, such prospectus shall conform in all
material
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respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder. Each holder of Registrable Debentures agrees that upon
receipt of any notice from the Company, pursuant to Section
3(b)(vi)(D), such holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Debentures pursuant to the
registration statement applicable to such Registrable Debentures until
such holder (i) shall have received copies of such amended or
supplemented prospectus and, if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's
possession of the prospectus covering such Registrable Debentures at
the time of receipt of such notice or (ii) shall have received notice
from the Company that the disposition of Registrable Debentures
pursuant to the Shelf Registration Statement may continue.
(d) The Company may require each holder of Registrable
Debentures as to which any registration pursuant to Section 2(b)
is being effected to furnish to the Company such information
regarding such holder and such holder's intended method of
distribution of such Registrable Debentures as the Company may
from time to time reasonably request in writing, but only to the
extent that such information is required in order to comply with
the Securities Act. Each such holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Company or
of the occurrence of any event in either case as a result of which
any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such
holder or such holder's intended method of disposition of such
Registrable Debentures or omits to state any material fact
regarding such holder or such holder's intended method of
disposition of such Registrable Debentures required to be stated
therein or necessary to make the statements therein not
misleading, and promptly to furnish to the Company any additional
information required to correct and update any previously
furnished information or required so that such prospectus shall
not contain, with respect to such holder or the disposition of
such Registrable Debentures, 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.
(e) Until the expiration of two years after the Closing
Date, the Company will not, and will not permit any of its
"affiliates" (as defined in Rule 144) to resell any of the
Debentures that have been reacquired by any
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of them except pursuant to an effective registration statement
under the Securities Act.
(f) In connection with the Company's obligations with
respect to the registration of Exchange Debentures as contemplated
by Section 2(a) (the "Exchange Registration"), if applicable, the
Company shall, as soon as reasonably practicable (or as otherwise
specified):
(i) prepare and file with the Commission such amendments
and supplements to the Exchange Offer Registration Statement
and the prospectus included therein as may be necessary to
effect and maintain the effectiveness thereof for the periods
and purposes contemplated in Section 2(a) hereof and as may
be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of the
Exchange Offer Registration Statement, and promptly provide
each broker-dealer holding Exchange Debentures with such
number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request for use in connection with resales of Exchange
Debentures;
(ii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
the Exchange Offer Registration Statement, and confirm such
advice in writing, (A) when any prospectus amendment or
supplement or post-effective amendment to the Exchange Offer
Registration Statement has been filed, and, with respect to
any post-effective amendment to the Exchange Offer
Registration Statement, when the same has become effective,
(B) of the issuance by the Commission of any stop order
suspending the effectiveness of the Exchange Offer
Registration Statement or the initiation or threatening of
any proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Exchange Debentures for sale in any
United States jurisdiction or the initiation or threatening
in writing of any proceeding for such purpose, or (D) at any
time when a prospectus is required to be delivered under the
Securities Act, that the Exchange Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of
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the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder;
(iii) in the event that the Company would be required,
pursuant to Section 3(f)(ii)(D), to notify any broker-dealers
holding Exchange Debentures, promptly prepare and furnish to
each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Debentures, such
prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or notify such broker-dealers that the offer and
sale of Exchange Debentures pursuant to the Exchange Offer
Registration Statement may continue;
(iv) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Exchange Offer Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(v) use its reasonable best efforts to register or
qualify the Exchange Debentures under the securities laws or
blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(f)(v), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders; and
(vi) make generally available to its security holders as
soon as practicable but no later than eighteen months after
the effective date of such registration statement, an earning
statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option
of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company, such obligation shall be
subject to the provision of such information; provided that the Company shall
use
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its reasonable best efforts to obtain the necessary information from any party
responsible for providing such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Debentures or Exchange
Debentures for offering and sale under the State securities and blue sky laws
referred to in Section 3(b)(x) and Section 3(f)(v) hereof, including reasonable
fees and disbursements of one counsel for the placement or sales agent or
underwriters, if any, in connection with such qualifications, (c) all expenses
relating to the preparation, printing, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Debentures and
all other documents relating hereto, (d) fees and expenses of the Trustee under
the Indenture, and of any escrow agent or custodian, (e) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (f) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance) and (g) reasonable fees, disbursements and
expenses of one counsel for the holders of Registrable Debentures retained in
connection with a Shelf Registration Statement, as selected by the holders of
at least a majority in aggregate principal amount of the Registrable Debentures
being registered and approved by the Company, and fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Debentures or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a documented request therefor. Notwithstanding the
foregoing, the holders of the Registrable Debentures being registered shall pay
all agency fees and commissions and underwriting discounts and commissions
attributable to the sale of such Registrable Debentures and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.
15
5. Representations and Warranties
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Debentures
that:
(a) Each registration statement covering Registrable
Debentures and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(f) hereof and any further amendments or
supplements to any such registration statement or prospectus, when
it becomes effective or is filed with the Commission, as the case
may be, and, in the case of an underwritten offering of
Registrable Debentures, at the time of the closing under the
underwriting agreement relating thereto, will conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and will 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 at all times subsequent to the Effective Time when
a prospectus would be required to be delivered under the
Securities Act, other than from such time as a notice has been
given to holders of Registrable Debentures pursuant to Section
3(b)(vi)(D) or Section 3(f)(ii)(D) hereof until such time as the
Company furnishes an amended or supplemented prospectus pursuant
to Section 3(c) or Section 3(f)(iii) hereof or such time as the
Company provides notice that offers and sales pursuant to the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, may continue, each such
registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section
3(b) or Section 3(f) hereof, as then amended or supplemented, will
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder; 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 or on behalf of
a holder of Registrable Debentures expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the
case may be, will conform or conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents will contain or contained
an untrue statement of a material fact
16
or will omit or omitted 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 a
holder of Registrable Debentures expressly for use therein.
(c) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not contravene any provision
of applicable law or the certificate of incorporation or by-laws
of the Company or, except to the extent that any such
contravention would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, any indenture or
instrument relating to indebtedness for money borrowed or any
agreement to which the Company is a party or any order, rule,
regulation or decree of any court or governmental agency or
authority located in the United States having jurisdiction over
the Company or any property of the Company; and, to the best
knowledge of the Company, no consent, authorization or order of,
or filing or registration with, any court or governmental agency
or authority is required for the consummation by the Company of
the transactions contemplated by this Agreement, except the
registration under the Securities Act contemplated hereby,
qualification of the Indenture, under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue
sky laws.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
6. Indemnification
(a) In connection with an Exchange Offer Registration
Statement or a Shelf Registration Statement, the Company agrees to
indemnify and hold harmless each of the holders of Registrable
Debentures included in such Exchange Offer Registration Statement
or Shelf Registration Statement, and each person who is named in
such Exchange Offer Registration Statement or Shelf Registration
Statement or a supplement thereto as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable
Debentures and each person who controls any such person (each, a
"Participant") from and against any and all losses, claims,
damages and liabilities (including the fees and expenses of
counsel in connection with any governmental or regulatory
investigation or proceeding) caused by any untrue statement or
alleged
17
untrue statement of a material fact contained in any registration
statement under which such Registrable Debentures were registered
under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished
in writing to the Company by any Participant expressly for use
therein.
(b) In case any action shall be brought against any Participant, based
upon any registration statement under which the Registrable Debentures were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto and in respect of which
indemnity may be sought against the Company, such Participant shall promptly
notify the Company in writing, and the Company, upon the request of such
Participant, shall assume the defense thereof on behalf of such Participant,
including the employment of counsel and payment of all expenses. In any such
action, any Participant shall have the right to employ its own counsel but the
fees and expenses of such counsel shall be at the expense of such Participant
unless (i) the employment of such counsel has been specifically authorized in
writing by the Company or (ii) the named parties to any such action (including
any impleaded parties) include both such Participant and the Company and such
Participant shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Company (it being understood, however, that the Company
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to one firm
of local counsel) for all such Participants, which firm shall be designated in
writing by you, and that such fees and expenses shall be reimbursed as they are
incurred). The Company shall not be liable for indemnification (or contribution
as provided below) with respect to the settlement of any such action effected
without its written consent, but if settled with the written consent of the
Company or if there be a final judgment for the plaintiff in any such action,
the Company agrees to indemnify and hold harmless any Participant from and
against any loss or liability by reason of such settlement or judgment (or to
make contribution as provided below).
18
(c) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Participant, but only with reference to information relating to
such Participant furnished in writing by such Participant expressly for use in
any registration statement under which such Registrable Debentures were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto. In case any action shall
be brought against the Company, any of its directors or any such officer or
controlling person based on any registration statement under which such
Registrable Debentures were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company to any such Participant, or any amendment or supplement thereto and in
respect of which indemnity may be sought against any Participant, each
Participant shall have the rights and duties given to the Company, and the
Company, its directors or any such officer or controlling person shall have the
rights and duties given to each Participant, by Section 6(b).
(d) If the indemnification provided for in Section 6(a) is unavailable
to any Participant or other indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then the Company, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Participants
on the other from the offering of the Registrable Debentures 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 of the Participants on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Participants
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total purchasing discounts and commissions received by the
Participants, in each case as set forth in any registration statement under
which such Registrable Debentures were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or furnished by
the Company to any such Participant, or any amendment or supplement thereto.
The relative fault of the Company and of the Participants shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
19
relates to information supplied by the Company or by the Participants and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) If the indemnification provided for in this Section 6 is sought
solely by the Company under Section 6(c) hereof and there is no claim for
indemnification by any Participant arising out of the same misstatement or
omission and if such indemnification is unavailable to the Company in respect
of any losses, claims, damages or liabilities referred to in Section 6(c), then
the Participants, in lieu of indemnifying the Company, shall contribute to the
amount paid or payable by the Company as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Participants on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Participants on the other 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 or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company and the Participants agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Participants 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 in the two immediately preceding
paragraphs. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in such paragraphs
shall be deemed to include, subject to the limitations set forth above, any
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 Section 6, no Participant shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Debentures purchased by it and distributed to
the public were offered to the public in connection with the initial offering
of the Debentures exceeds the amount of any damages which such Participant has
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 Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. The Participants' obligations to contribute
pursuant to this Section 6 are several in proportion to their respective
purchasing percentages and not joint.
20
(g) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Participant or by or on behalf of the Company, its directors or
officers or any person controlling the Company and (iii) acceptance of and
payment for any of the Registrable Debentures.
7. Rule 144.
The Company covenants to the holders of Registrable Debentures that
the Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such holder
to sell Registrable Debentures without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
or successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Debentures in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable
Debentures which would be inconsistent with the terms contained in
this Agreement.
(b) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being
deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested) as follows: If to the Company,
to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn:
Vice President and Treasurer; if to an Initial Purchaser, to it at
the address for the Initial Purchasers set forth in the Purchase
Agreement; and if to a holder, to the address of such holder set
forth in the security register
21
or other records of the Company or to such other address as the
Company or any such holder may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors and
assigns of the parties hereto. In the event that any transferee
of any holder of Registrable Debentures shall acquire Registrable
Debentures, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto
for all purposes and such Registrable Debentures shall be held
subject to all of the terms of this Agreement, and by taking and
holding such Registrable Debentures such transferee shall be
entitled to receive the benefits of, and be conclusively deemed to
have agreed to be bound by and to perform, all of the applicable
terms and provisions of this Agreement.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in
this Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Debentures, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof,
or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Debentures
pursuant to the Purchase Agreement and the transfer and
registration of Registrable Debentures by such holder and the
consummation of an Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for
convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this
Agreement.
(g) Entire Agreement; Amendments. This Agreement and the
other writings referred to herein (including the Indenture) or
delivered pursuant hereto which form a part hereof contain the
entire understanding
22
of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the
Company and the holders of at least a majority in aggregate principal
amount of the Registrable Debentures at the time outstanding. Each
holder of any Registrable Debentures at the time or thereafter
outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 8(g), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such
Registrable Debentures or is delivered to such holder.
(h) Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and
addresses of all the holders of Registrable Debentures shall be
made available for inspection and copying on any business day by
any holder of Registrable Debentures for proper purposes only
(which shall include any purpose related to the rights of the
holders of Registrable Debentures under the Debentures, the
Indenture and this Agreement) at the offices of the Company at the
address thereof set forth in Section 8(b) above, or at the office
of the Trustee under the Indenture.
(i) Counterparts. This Agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
(j) Remedies. In the event of a breach by the Company of
its obligations under this Agreement, each Holder of Registrable
Debentures, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement; provided
that the sole damages payable for a violation of the terms of this
Agreement for which liquidated damages are expressly provided
pursuant to Section 2(c) hereof shall be such liquidated damages.
The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
23
(k) Successors and Assigns. Any person who purchases any
Registrable Debentures from an Initial Purchaser shall be deemed,
for purposes of this Agreement, to be an assignee of such Initial
Purchaser. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and
shall inure to the benefit of and be binding upon each Holder of
any Registrable Debentures.
(l) Severability. If any term, provision, covenant or
restriction of this Agreement is held 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 thereby, and the parties hereto shall use their best
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 they would
have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter
declared invalid, illegal, void or unenforceable.
(m) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(n) Further Assurances. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all
appropriate action, do or cause to be done all things reasonably
necessary, proper or advisable under applicable law, and execute
and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and the other documents
contemplated hereby and consummate and make effective the
transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the
Effectiveness Period, except for any liabilities or obligations
under Sections 4 or 5 hereof and the obligations to make payments
of and provide for liquidated damages under Section 2(c) hereof to
the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
24
Agreed to and accepted as of the date referred to above.
CINERGY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
ABN AMRO INCORPORATED
CHASE SECURITIES INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Cinergy Corp.
Certificate
-----------
I, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and Treasurer of Cinergy Corp., a
Delaware corporation (the "Company"), hereby certify that I have authorized the
issuance by the Company of $200,000,000 aggregate principal amount of 6.53%
Debentures due 2008 (the "Debentures") pursuant to the resolutions of the Board
of Directors of the Company adopted July 29, 1998 with terms and provisions as
set forth in the Purchase Agreement, dated December 9, 1998, between the
Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ABN AMRO Incorporated and Chase
Securities Inc.
December 16, 1998
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
