EXHIBIT 99.7
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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This Amended and Restated Registration Rights Agreement (the
"Agreement") is entered into as of April 26, 2000 by and among Orion Power
Holdings, Inc. (the "Company"), GS Capital Partners II, L.P. ("GSCP II,"
and together with any Affiliate (as defined below) (including without
limitation, the Other GSCP Entities, as defined below) to which it assigns
any rights and obligations under the Agreement, "GSCP"), GS Capital
Partners III, L.P. ("GSCP III"), GS Capital Partners II Offshore, L.P.
("GSCP Offshore"), GS Capital Partners III Offshore, L.P. ("GSCP III
Offshore"), Xxxxxxx, Xxxxx & Co. Verwaltungs GmbH, as nominee for GS
Capital Partners II Germany C.L.P. ("GS Germany") and as nominee for GS
Capital Partners III Germany C.L.P. ("GS III Germany"), Stone Street Fund
1998, L.P. ("Stone") Bridge Street Fund 1998, L.P. ("Bridge"), Stone Street
Fund 2000, L.P. ("Stone 2000") and Bridge Street Fund 2000, L.P. ("Bridge
2000," and collectively with GSCP III, GSCP Offshore, GSCP III Offshore, GS
Germany, GS III Germany, Stone, Bridge and Stone 2000, the "Other GS
Entities"), Constellation Enterprises, Inc. ("Constellation"),
Constellation Operating Services, Inc. ("COSI"), Diamond Generating
Corporation ("DGC"), Diamond Cayman, Inc. ("DCI"), Mitsubishi International
Corporation ("MIC," and collectively with DGC and DCI, "Mitsubishi") and
Tokyo Electric Power Company International B.V. ("TEPCO International").
Each of GSCP, Constellation, Mitsubishi, TEPCO International and COSI is
referred to herein as a "Holder," and GSCP, Constellation, Mitsubishi,
TEPCO International and COSI are referred to collectively herein as
"Holders."
R E C I T A L S:
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WHEREAS, pursuant to the terms of that certain Subscription Agreement,
dated as of September 29, 1999, by and between the Company and Mitsubishi
and that certain Subscription Agreement, dated as of October 4, 1999, by
and between the Company and TEPCO International, the Company, GSCP,
Constellation, Mitsubishi Corporation and TEPCO International entered into
a registration rights agreement (the "Original Registration Rights
Agreement"), dated as of November 5, 1999.
WHEREAS, pursuant to the terms of that certain Stock Purchase
Agreement (the "COSI Purchase Agreement"), dated as of April 26, 2000, by
and between the Company and COSI, the execution and delivery of this
Agreement by the parties hereto is a condition to the purchase by the
Company of various assets from COSI.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" shall mean, with respect to any person, any other
person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person; provided, however,
that, for purposes hereof, neither the Company nor any person controlled by
the Company shall be deemed to be an Affiliate of any Stockholder.
"Approved Underwriter" shall have the meaning set forth in
Section 2.
"Business Day" shall mean any day excluding Saturday, Sunday and
any day on which banks in the State of New York are authorized or required
by law or other governmental action to close.
"COSI Shares" shall mean the 12,193.548 Shares acquired by COSI
pursuant to the COSI Purchase Agreement, including any Shares acquired upon
any stock split, stock dividend or recapitalization with respect to such
Shares.
"Damages" shall have the meaning set forth in Section 8.
"Demanding Holder" shall have the meaning set forth in Section 2.
"Demand Registration" shall have the meaning set forth in Section 2.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated
thereunder.
"Incidental Registration" shall have the meaning set forth in
Section 3.
"Initial Public Offering" means an underwritten offering or
series of underwritten offerings pursuant to which the Shares becomes
registered under Section 12 of the Exchange Act (a) in which either (i) the
Shares issued constitute at least 20% of the Shares or (ii) the gross
proceeds to the Company and any selling stockholders, in the aggregate, is
at least $75 million before deducting underwriting discounts, commissions
and offering expenses and (b) which results in the Common Stock being held
by at least 500 holders of record within the meaning of Rule 12g5-1 under
the Exchange Act.
"Litigation" shall have the meaning set forth in Section 21.
"Participating Holder" shall have the meaning set forth in
Section 3.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement and by all
other amendments and supplements to the prospectus, including
post-effective amendments and all material incorporated by reference in
such Prospectus.
"Register," "registered" and "registration" shall mean and refer
to a registration effected by preparing and filing a Registration Statement
and taking all other actions that are necessary or appropriate in
connection therewith, and the declaration or ordering of effectiveness of
such Registration Statement by the SEC.
"Registration Expenses" shall have the meaning set forth in
Section 7.
"Registrable Securities" shall mean all Shares held by the
Holders as of the date hereof or acquired after the date hereof (including,
without limitation, Shares acquired pursuant to preemptive rights and
Shares subsequently transferred to a permitted transferee under Section 12
hereof), provided that such term shall not include any such Shares sold to
the public by the Holders pursuant to a Registration Statement under the
Securities Act or sold by the Holders in a private transaction in which the
selling Holder's rights hereunder were not assigned to the purchasers
thereof or Shares which may be sold without restriction under Rule 144(k)
of the Securities Act or any successor rule thereto.
"Registration Statement" shall mean any registration statement of
the Company in compliance with Section 5 of the Securities Act and the
rules and regulations thereunder that covers Registrable Securities
pursuant to the provisions of this Agreement, including, without
limitation, the Prospectus, all amendments and supplements to such
Registration Statement, including all post-effective amendments, all
exhibits and all material incorporated by reference in such Registration
Statement.
"Rights Holder" shall have the meaning set forth in Section 6.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, and the rules and regulations promulgated
thereunder.
"Shares" shall mean the outstanding common stock of the Company,
par value $.01 per Share.
"Underwritten registration" or "underwritten offering" shall mean
a registration in which common equity securities of the Company are sold to
an underwriter or through an underwriter as agent for reoffering to the
public.
2. Demand Registration.
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(a) Request for Demand Registration. At any time after the
Company's Initial Public Offering, each of the Holders shall be entitled to
request in writing that the Company effect the registration under the
Securities Act of Registrable Securities in accordance with this Section 2
(each, a "Demand Registration"). Any such request for a Demand Registration
by a Holder (the "Demanding Holder") shall specify the amount of
Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon receiving a request for a Demand Registration,
the Company will, as provided in this Section 2, use its reasonable best
efforts to effect the registration under the Securities Act of the
Registrable Securities which the Company has been so requested by the
Demanding Holder to register. Notwithstanding anything in the Section 2 to
the contrary, the Company shall not be obligated to effect a registration
unless the anticipated aggregate gross offering price with respect thereto
would equal or exceed $35 million ($35,000,0000) (including the offering
price of Registrable Securities as to which other holders of Registrable
Securities are also seeking registration pursuant to such request). Any
such request for a Demand Registration may be a request for a shelf
registration, if the Company is eligible to use a shelf registration at the
time of such request.
(b) Limitation on Demand Registrations. Notwithstanding anything
to the contrary set forth in Section 2(a) but subject to Sections 7 and 11,
the Company shall not be obligated to file a Registration Statement with
respect to a Demand Registration upon a request by a Demanding Holder under
Section 2(a), (i) if two Demand Registrations initiated by the Demanding
Holder have become effective as specified in paragraph (c) below or (ii) if
the Holder requests a Demand Registration prior to six months following the
date on which any of the Company's common equity securities were first sold
pursuant to any Registration Statement declared effective by the SEC (or in
the case of a shelf registration, prior to six months following the date on
which any Registration Statement with respect to the Company's common
equity securities is declared effective).
(c) Effective Demand Registration. A registration shall not
constitute a Demand Registration until the Registration Statement has
become effective and remains continuously effective for the lesser of (i)
the period during which all Registrable Securities of the Demanding Holder
registered in the Demand Registration are sold and (ii) 90 days; provided,
however, that a registration shall not constitute a Demand Registration if
(x) after such Demand Registration has become effective, such registration
or the related offer, sale or distribution of Registrable Securities
thereunder is interfered with by any stop order, injunction or other order
or requirement of the SEC or other governmental agency or court for any
reason not attributable to the Demanding Holder and such interference is
not thereafter eliminated or (y) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such Demand
Registration are not satisfied or waived, other than by reason of a failure
by the Demanding Holder.
(d) Underwriting Procedures. If the Demanding Holder so elects,
the offering of Registrable Securities pursuant to a Demand Registration
shall be in the form of a firm commitment underwritten offering and the
managing underwriter or underwriters selected for such offering shall be
the Approved Underwriter (as hereinafter defined) selected in accordance
with Section 2(e). With respect to any firm commitment underwritten
offering, the Company shall enter into a reasonable and customary
underwriting agreement with the Approved Underwriter. If the Approved
Underwriter advises the Company in writing that in its opinion the
aggregate amount of Shares requested to be included in such offering is
sufficiently large to have a material adverse effect on the success of such
offering, then the Company shall include in such registration only the
aggregate amount of Shares that in the opinion of the Approved Underwriter
may be sold without any such material adverse effect and shall allocate the
amount of the Shares to be included in such registration as follows: the
Company, the Demanding Holder, the Participating Holders (as defined
herein) and any other stockholder exercising piggyback registration rights
shall be allowed to include such amount of Registrable Securities in the
aggregate as the managing underwriter(s) deems appropriate prior to any
Shares being included on behalf of any other person; provided, however,
that (i) if the request for a Demand Registration occurs on or prior to the
date which is the one year anniversary of the Company's Initial Public
Offering, prior to any reduction of the amount of Shares intended to be
included in the offering by the Company pursuant to the exercise of its
rights under Section 2(f) herein, the aggregate amount of Shares intended
to be included in the offering by the former Demanding Holder, the
Participating Holders and any other stockholder exercising piggyback
registration rights shall be reduced in its entirety (which Shares shall be
cut back on a pro rata basis in accordance with the number of Shares
proposed to be registered by the Demanding Holder, the Participating
Holders and any other stockholder exercising piggyback registration rights)
and (ii) if the request for a Demand Registration occurs after the one year
anniversary of the Company's Initial Public Offering, the amount of Shares
intended to be included in the offering by the Company shall be reduced in
its entirety prior to any reduction of the aggregate amount of Shares
intended to be included in the offering by the Demanding Holder, the
Participating Holders and any other stockholder exercising piggyback
registration rights intended to be included in such offering (which Shares,
after the elimination of Company Shares, shall be cut back on a pro rata
basis in accordance with the number of Shares proposed to be registered by
the Demanding Holder, the Participating Holders and any other stockholder
exercising piggyback registration rights).
(e) Selection of Underwriters. If any Demand Registration is in
the form of an underwritten offering, the Demanding Holder shall select and
obtain one or more investment banking firms of national reputation to act
as the managing underwriters of the offering (collectively, the "Approved
Underwriter"); provided, however, that the Approved Underwriter shall, in
any case, be acceptable to the Company in its reasonable judgment.
(f) Company Participation. If, in the case of a Demand
Registration requested on or prior to the date which is the one year
anniversary of the Company's Initial Public Offering, the Company gives
notice to the Demanding Holder and the managing underwriter, if any, within
20 Business Days of the Company's receipt of the request for a Demand
Registration, that the Company wishes to include shares in such
registration, such registration shall not be deemed a Demand Registration
and the Demanding Holder shall be deemed a Participating Holder.
(g) Demanding Holder Cutback. If, in the case of any Demand
Registration, the shares to be included by the Demanding Holder in such
registration are reduced by the Approved Underwriter by one-third (1/3) or
more of the amount of shares the Demanding Holder requested to include in
such registration, such registration shall not be deemed a Demand
Registration.
3. Incidental Registration. At any time after the Company's Initial
Public Offering, if the Company shall determine to register any Shares, or
any securities convertible into or exchangeable or exercisable for Shares,
for its own account or for the account of any stockholder (other than a
registration on Forms S-4 or S-8 or any replacement or successor form
thereof), the Holders shall be entitled to include Registrable Securities
in such registration (and related underwritten offering, if any) (each, an
"Incidental Registration") on the terms and conditions set forth in this
Section 3.
(a) The Company shall promptly give written notice of such
determination to the Holders, and each Holder shall have the right to
request, by written notice given to the Company within twelve (12) Business
Days of the receipt by such Holder of such notice of determination, that a
specific number of Registrable Securities held by such Holder be included
in such Registration Statement (such participating Holders are referred to
herein as "Participating Holders");
(b) If the proposed registration relates to an underwritten
offering, the notice called for by Section 3(a) shall specify the name of
the managing underwriter for such offering;
(c) If the proposed registration relates to an underwritten
offering, each Participating Holder must (i) sell all or a portion of its
Registrable Securities on the same basis provided in the underwriting
arrangements approved by the Company and (ii) complete and execute all
questionnaires, powers of attorney, underwriting agreements and other
documents on the same basis as other similarly situated selling
stockholders (or, if there are no other selling stockholders, as would be
customary in a transaction of this type) reasonably required under the
terms of such underwriting arrangements or by the SEC;
(d) If the managing underwriter for the underwritten offering
under the proposed registration to be made by the Company determines that
inclusion of all or any portion of the Registrable Securities in such
offering would adversely affect the ability of the underwriter for such
offering to sell all of the securities requested to be included for sale or
the price per share in such offering, the number of shares that may be
included in such registration in such offering shall be allocated as
follows:
(i) if the Company initiated the registration, the Company,
all Participating Holders and any other stockholder exercising
piggyback registration rights shall be allowed to include such
amount of Registrable Securities as the managing underwriter(s)
deems appropriate prior to any Shares being included on behalf of
any other person; provided, however, that, prior to any reduction
of the amount of Shares intended to be registered by the Company,
the aggregate amount of Shares intended to be included in the
offering by all Participating Holders and any other stockholder
exercising piggyback registration rights shall be reduced in its
entirety (which Shares shall be cut back on a pro rata basis in
accordance with the number of Shares proposed to be registered by
the Participating Holders and any other stockholder exercising
piggyback registration rights);
(ii) if, on or prior to the date which is the one year
anniversary of the Company's Initial Public Offering, a Demanding
Holder requests a Demand Registration, the Demanding Holder, the
Company, all Participating Holders and any other stockholder
exercising piggyback registration rights shall be allowed to
include such amount of Registrable Securities as the managing
underwriter(s) deems appropriate prior to any Shares being
included on behalf of any other person; provided, however, that,
prior to any reduction of the amount of Shares intended to be
registered by the Company pursuant to exercise of its rights
under Section 3(e) herein, the aggregate amount of Shares
intended to be included in such offering by the former Demanding
Holder, all Participating Holders and any other stockholder
exercising piggyback registration rights shall be reduced in its
entirety (which Shares shall be cut back on a pro rata basis in
accordance with the number of Shares proposed to be registered by
the Demanding Holder, the Participating Holders and any other
stockholder exercising piggyback registration rights);
(iii) if, after the date which is the one year anniversary
of the Company's Initial Public Offering, a Demanding Holder
requests a Demand Registration, the Demanding Holder, the
Company, all Participating Holders and any other stockholder
exercising piggyback registration rights shall be allowed to
include such amount of Registrable Securities as the managing
underwriter(s) deems appropriate prior to any Shares being
included on behalf of any other person; provided, however, that
the amount of Shares intended to be registered by the Company
shall be reduced in its entirety prior to any reduction of the
aggregate amount of Shares intended to be included in such
offering by the Demanding Holder, all Participating Holders and
any other stockholder exercising piggyback registration rights
(which Shares, after the elimination of Company Shares, shall be
cut back on a pro rata basis in accordance with the number of
Shares proposed to be registered by the Demanding Holder, the
Participating Holders and any other stockholder exercising
piggyback registration rights);
(e) If, in the case of a Demand Registration requested on or
prior to the date which is the one year anniversary of the Company's
Initial Public Offering, the Company gives notice to the Demanding Holder
and the managing underwriter, if any, within 20 Business Days of the
Company's receipt of the request for a Demand Registration, that the
Company wishes to include shares in such registration, such registration
shall not be deemed a Demand Registration and the Demanding Holder shall be
deemed a Participating Holder;
(f) Each Participating Holder shall have the right to withdraw
its Registrable Securities from the Registration Statement at any time
prior to the effective date thereof, but if the same relates to an
underwritten offering and the initial filing thereof has been made, it may
only withdraw its Registrable Securities during the time period and on
terms deemed appropriate by the underwriters for such underwritten
offering; and
(g) The Company or any other stockholder exercising Demand
Registration rights shall have the right to terminate or withdraw any
registration statement filing under this Section 3 prior to the effective
date of such registration for any reason without liability to any
Participating Holder as a result thereof, whether or not such Participating
Holder has elected to include such securities in such registration. In such
event, the Company or a Participating Holder, as applicable, may elect to
continue the registration; provided, however, that, except as provided in
Sections 2(f), 2(g) and 3(e) hereof, if a Participating Holder makes such
election, the election shall be deemed a request for a Demand Registration
and shall be subject to the limits on Demand Registration requests set
forth in this Agreement.
3A. Initial Public Offering Registration. At the Company's Initial
Public Offering, COSI shall be entitled to include the COSI shares in such
registration on the terms and conditions set forth in this Section 3A (the
"Special COSI Rights").
(a) The Company shall promptly give written notice of its
determination to effect an Initial Public Offering to COSI, and COSI shall
have the right to request, by written notice given to the Company within
twelve (12) Business Days of the receipt by such Holder of such notice of
determination, that a specific number of COSI Shares held by COSI, be
included in such Registration Statement ;
(b) The notice called for by Section 3A(a) shall specify the name
of the managing underwriter for the Initial Public Offering;
(c) COSI must (i) sell all or a portion of its COSI Shares on the
same basis provided in the underwriting arrangements approved by the
Company and (ii) complete and execute all questionnaires, powers of
attorney, underwriting agreements and other documents on the same basis as
other similarly situated selling stockholders (or, if there are no other
selling stockholders, as would be customary in a transaction of this type)
reasonably required under the terms of such underwriting arrangements or by
the SEC;
(d) If the managing underwriter for the Initial Public Offering
determines that inclusion of all or any portion of the COSI Shares in such
offering would adversely affect the ability of the underwriter for such
offering to sell all of the securities requested to be included for sale or
the price per share in such offering, the number of shares that may be
included in such registration in such offering shall be allocated so that
the Company and COSI shall be allowed to include such amount of COSI Shares
and Registrable Securities as the managing underwriter(s) deems appropriate
prior to any Shares being included on behalf of any other person; provided,
however, that, prior to any reduction of the amount of Shares intended to
be registered by the Company, the aggregate amount of Shares intended to be
included in the offering by COSI shall be reduced in its entirety;
(e) COSI shall have the right to withdraw COSI Shares from the
Registration Statement at any time prior to the effective date thereof, but
if the initial filing of the Initial Public Offering has been made, COSI
may only withdraw the COSI Shares during the time period and on terms
deemed appropriate by the underwriters.
4. Blockage Periods. Prior to and for the one hundred eighty (180) day
period following the date of the Company's Initial Public Offering, the
Company shall not be obligated to file any Registration Statement under
Section 2. Notwithstanding any other provision of this Agreement, the
Company shall not be obligated to file any Registration Statement under
Section 2 at any time that (after having had discussions with the Demanding
Holder) the Company's Board of Directors determines in good faith, as
certified to the Demanding Holder in writing by the Company's President,
Chief Executive Officer, Chief Financial Officer, Chief Legal Officer or
Chief Operating Officer that the filing of such a Registration Statement
would be seriously detrimental (including, without limitation, if the
filing of a Registration Statement would require disclosure of a pending
material transaction where such disclosure could impair the Company's
ability to complete such transaction) to the business of the Company. The
Company may decline to file any Registration Statement for this reason only
twice in any 12-month period and only for a maximum period of 90 days at
any one time. If the Company declines to file any Registration Statement
pursuant to this Section 4, it shall not file any Registration Statement
(other than a Form S-4 or Form S-8) without the prior written approval of
the Demanding Holder, which approval may be withheld at the Demanding
Holder's sole discretion, unless and until it files a Registration
Statement including Registrable Securities under Section 2 hereof.
5. Restrictions on Public Sale by Holders of Registrable Securities.
If Registrable Securities are included (in whole or in part) in a
Registration Statement filed by the Company under Section 2 for sale in an
underwritten offering, each Holder of Registrable Securities agrees, if
requested by the managing underwriter(s) of such offering, not to sell,
make any short sale of, loan, grant any option for the purchase of, dispose
of or effect any public sale or distribution of common equity securities of
the same series and class as (or securities exchangeable or exercisable for
or convertible into common equity securities of the same series and class
as) its Registrable Securities, including a sale pursuant to Rule 144 under
the Securities Act (except as part of such underwritten registration),
during the five (5) day period prior to, and during the one hundred eighty
(180) day period in the case of an Initial Public Offering for all Holders
of Registrable Securities or, solely with respect to Demanding Holders and
Participating Holders, during the ninety (90) day period in the case of all
other registrations (or, in either case, during the shorter period
requested or consented by the managing underwriter(s) with respect to the
Company or any other holder of common stock of the Company) beginning on
the closing date of such underwritten offering, to the extent timely
notified in writing by the Company or the managing underwriter(s).
6. Registration Procedures. In connection with the Company's
registration obligations pursuant to Sections 2, 3 and 3A hereof, the
Company will use its reasonable best efforts to effect such registration to
permit the sale of the Registrable Securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
(a) with respect to registrations made pursuant to Section 2
only, prepare and file with the SEC a Registration Statement with respect
to such Registrable Securities and use its reasonable best efforts to cause
such Registration Statement to become effective as soon as practicable,
and, upon the request of any Holder of Registrable Securities to be sold
under such Registration Statement (a "Rights Holder"), keep such
Registration Statement effective for up to ninety (90) days, provided that,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company will furnish to the Rights Holders and
their counsel, copies of all such documents proposed to be filed at least
three (3) days prior thereto, provided, further, that the Company will not
name or otherwise provide any information with respect to any Rights Holder
in any Registration Statement or Prospectus without the express written
consent of such Rights Holder, which consent shall not be unreasonably
withheld, unless required to do so by the Securities Act and the rules and
regulations thereunder;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus
as may be necessary to comply with the provisions of the Securities Act and
the rules and regulations thereunder with respect to the disposition of all
securities covered by such Registration Statement;
(c) promptly notify the Rights Holders (i) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the SEC for
amendments or supplements to the Registration Statement or the Prospectus
or for additional information, (iii) of the issuance by the SEC of any stop
order suspending the effectiveness of the 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 Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (v) of
the happening of any event which makes any statement made in the
Registration Statement, the Prospectus or any document incorporated therein
by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus or any document incorporated therein
by reference so that such documents will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible time;
(e) if requested by the Approved Underwriter or Rights Holder,
(i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the Approved Underwriter and such Rights
Holder agree should be included therein as required by applicable law and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment promptly after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or such post-effective amendment; provided, however, that the
Company shall not be required to take any of the actions of this Section
6(e) which it determines are not, on the advice of counsel for the Company,
required under applicable law;
(f) furnish to each Rights Holder, without charge, at least one
copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(g) deliver to the Rights Holders, without charge, such
reasonable number of conformed copies of the Registration Statement (and
any post-effective amendment thereto) and such number of copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto (and any documents incorporated by reference therein) as
the Rights Holders may reasonably request, all in full conformity with the
Securities Act; the Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Rights Holders in connection with
the offer and sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto;
(h) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with the Rights
Holders in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any Rights Holder reasonably requests, and
use its reasonable best efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such Registration Statement is required to be
kept effective pursuant to the terms of this Agreement; and do any and all
other acts or things necessary or advisable to enable the disposition in
all such jurisdictions reasonably requested by such Rights Holder, provided
that under no circumstances shall the Company be required in connection
therewith or as a condition thereof to qualify to do business, to become
subject to taxation or to file a general consent to service of process in
any such states or jurisdictions;
(i) cooperate with the Rights Holders and the managing
underwriter or underwriters to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
free of any and all restrictive legends, such certificates to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or the Rights Holders may request;
(j) upon the occurrence of any event contemplated by Section
6(c)(v) above, prepare a supplement or post-effective amendment to the
Registration Statement or the Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
(k) make generally available to the holders of the Company's
outstanding securities earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days
after the end of any twelve (12) month period (or ninety (90) days, if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm or best
efforts underwritten offering, or, if not sold to underwriters in such an
offering, (ii) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement,
which statements shall cover said twelve (12) month period;
(l) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration
Statement from and after a date not later than the effective date of such
Registration Statement;
(m) use its reasonable best efforts to cause all Registrable
Securities covered by each Registration Statement to be listed, subject to
notice of issuance, prior to the date of the first sale of such Registrable
Securities pursuant to such Registration Statement, on each securities
exchange on which the Shares issued by the Company are then listed, and
admitted to trading on the Nasdaq Stock Market or other national exchange,
if the Shares are then admitted to trading on the Nasdaq Stock Market or
such national exchange;
(n) enter into such agreements (including underwriting agreements
in customary form containing, among other things, reasonable and customary
indemnities) and take such other actions as the Rights Holders shall
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities; and
(o) furnish, at the request of the Rights Holders, on the date
that Registrable Securities are delivered to an underwriter for sale in
connection with an underwritten registration, or, in connection with any
other registration, on the date that the Registration Statement with
respect to such registration becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purpose of such
registration, in form and substance as is customarily given to underwriters
in an underwritten public offering, addressed to the underwriters, if any,
and to the Rights Holders, (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Rights Holders, subject to such
Rights Holders' provision of information reasonably requested by such
independent certified public accountants to comply with the rules governing
delivery of such letters, and (iii) cause the underwriting agreement to
contain indemnification provisions and procedures no less favorable than
those set forth in Section 8 hereof (or such other provisions and
procedures acceptable to the Rights Holders) with respect to all parties to
be indemnified pursuant to such Section.
Each Rights Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
6(c)(v) hereof, such Rights Holder will forthwith discontinue disposition
of Registrable Securities under the Prospectus related to the applicable
Registration Statement until such Rights Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(j) hereof,
or until it is advised in writing by the Company that the use of the
Prospectus may be resumed. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 6
with respect to the Registrable Securities of a Rights Holder that such
Rights Holder shall furnish to the Company such information regarding
itself and the Registrable Securities held by it as shall be required by
the Securities Act to effect the registration of the Rights Holder's
Registrable Securities and as typically provided by similarly situated
selling stockholders.
7. Registration Expenses. All expenses incident to any registration to
be effected hereunder (whether or not the Registration Statement is filed
or declared effective) and incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, National Association of Securities Dealers, Inc., stock exchange
and qualification fees, fees and disbursements of the Company's counsel and
of independent certified public accountants of the Company (including the
expenses of any special audit required by or incident to such performance),
the fees of one counsel reasonably acceptable to the Company representing
the Rights Holders in such offering, expenses of the underwriters that are
customarily requested in similar circumstances by such underwriters
(excluding discounts, commissions or fees of underwriters, qualified
independent underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities), all such expenses being herein called
"Registration Expenses," will be borne by the Company. The Company will
also pay its internal expenses, the expense of any annual audit and the
fees and expenses of any person retained by the Company. Notwithstanding
the foregoing, the Company will not be obligated to pay Registration
Expenses for more than two Demand Registrations by the same Demanding
Holder effected pursuant to Section 2 of this Agreement. Registration
Expenses incurred in connection with Registration Statements requested
under Section 2 that are not filed or declared effective by the SEC will be
paid by the Company and will not count against such limit; provided,
however, if such Registration Statement not being filed or declared
effective is the result of the actions of the Demanding Holder, then the
Demanding Holder will bear the Registration Expenses of such Demand
Registration in which case such registration shall not be counted as a
Demand Registration under Section 2.
8. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Rights Holder, its officers, directors,
partners, employees and agents and each person who controls such Rights
Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, partners, employees
and agents of any such controlling person from and against any and all
losses, claims, damages and liabilities (including any investigation, legal
or other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted) (collectively, "Damages") to which such Rights Holder may become
subject under the Securities Act, the Exchange Act or other federal or
state securities law or regulation, at common law or otherwise, insofar as
such Damages arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or any amendment or
supplement thereto, (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading and (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or any state securities or
blue sky laws in connection with the Registration Statement, Prospectus or
preliminary prospectus or any amendment or supplement thereto, provided
that the Company will not be liable to such Rights Holder to the extent
that such Damages arise from or are based upon any untrue statement or
omission (x) based upon written information furnished to the Company by the
Rights Holder expressly for the inclusion in such Registration Statement,
(y) made in any preliminary prospectus if the Rights Holder failed to
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by the Rights Holder to the party asserting the
claim underlying such Damages and such Prospectus would have corrected such
untrue statement or omission and (z) made in any Prospectus if such untrue
statement or omission was corrected in an amendment or supplement to such
Prospectus delivered to the Rights Holder prior to the sale of Registrable
Securities and the Rights Holder failed to deliver such amendment or
supplement prior to or concurrently with the sale of Registrable Securities
to the party asserting the claim underlying such Damages. The Company shall
also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution
customarily indemnified by issuers in underwritten public offerings, their
officers, directors, agents and employees and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) to the same extent as provided above with respect
to the indemnification of the Rights Holders.
(b) Indemnification by Rights Holder. If Registrable Securities
are sold under a Prospectus which is a part of a Registration Statement,
each Demanding Holder and Participating Holder agrees to indemnify and hold
harmless the Company, its directors and each officer who signed such
Registration Statement and each person who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, partners, employees and agents of any
such controlling person under the same circumstances as the foregoing
indemnity from the Company to such Demanding Holder or Participating
Holder, as applicable, to the extent that such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
of a material fact or omission of a material fact that was made in the
Prospectus, the Registration Statement, or any amendment or supplement
thereto, in reliance upon and in conformity with information relating to
the Demanding Holder or Participating Holder, as applicable, furnished in
writing to the Company by the Demanding Holder or Participating Holder, as
applicable, expressly for use therein, provided that in no event shall the
aggregate liability of the Demanding Holder or Participating Holder, as
applicable exceed the amount of the net proceeds received by such Demanding
Holder or Participating Holder, as applicable upon the sale of the
Registrable Securities giving rise to such indemnification obligation. Each
Demanding Holder and Participating Holder shall indemnify the underwriters
under terms customary to such underwritten offerings as reasonably
requested by such underwriters. The Company and Rights Holder shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as customarily furnished by such persons
in similar circumstances.
(c) Conduct of Indemnification Proceedings. Any person entitled
to indemnification hereunder will (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party, provided, however, that any person entitled to
indemnification hereunder shall have the right to employ separate counsel
and to participate in the defense of such claim, but the fees and expenses
of such counsel shall be at the expense of such person and not of the
indemnifying party unless (A) the indemnifying party has agreed to pay such
fees or expenses, (B) the indemnifying party shall have failed to assume
the defense of such claim and employ counsel reasonably satisfactory to
such person or (C) in the reasonable judgment of such person and the
indemnifying party, based upon advice of their respective counsel, a
conflict of interest may exist between such person and the indemnifying
party with respect to such claims (in which case, if the person notifies
the indemnifying party in writing that such person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on
behalf of such person). No settlement in respect of any third party claim
may be effected by the indemnifying party without the indemnified party's
prior written consent (which consent shall not be unreasonably withheld)
unless the settlement involves only the payment of money by the
indemnifying party, provides for a full and unconditional release of the
indemnified party and does not include a statement as to, or any admission
of, fault, culpability or a failure to act by, or on behalf of, the
indemnified party. Any indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim. As used in this Section
8(c), the terms "indemnifying party," "indemnified party" and other terms
of similar import are intended to include only the Company (and its
officers, directors and control persons and the officers, directors,
partners, employees and agents of such control persons as set forth above)
on the one hand, and the Rights Holder (and its officers, directors,
partners, employees, agents and control persons and the officers,
directors, partners, employees and agents of such control persons as set
forth above) on the other hand, as applicable.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
indemnifying parties on the one hand and the indemnified party on the other
in connection with the statements or omissions which resulted in such
losses, claims, demands, liabilities or expenses as well as any other
relevant equitable considerations. With respect to contribution required
pursuant to this Section 8(d), the relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or
indemnifying parties on the one hand or the indemnified party on the other,
and the parties' relative, intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
Notwithstanding the provisions of this Section 8(d), an indemnified holder
of Registrable Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds to such holder of
Registrable Securities from the sale thereof exceed the amount of damages
which such indemnified holder has otherwise been required to pay pursuant
to Section 8(b) 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 of the Securities Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) Timing of Payments. An indemnifying party shall make payments
of all amounts required to be made pursuant to the foregoing provisions of
this Section 8 to or for the account of the indemnified party from time to
time promptly upon receipt of bills or invoices relating thereto or when
otherwise due or payable.
(f) Survival. The indemnity and contribution agreements contained
in this Section 8 shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of the Holders, their respective
officers, directors, partners, attorneys, agents or any person, if any, who
controls any Holder as aforesaid, and shall survive the transfer of such
Registrable Securities by any Holder.
9. Preparation; Reasonable Investigation. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of
this Agreement:
(a) the Company shall, with respect to a Registration Statement
filed by the Company, give the Rights Holders, the underwriters, if any,
and their respective counsel and accountants the opportunity to participate
in the preparation of such Registration Statement (other than reports and
proxy statements incorporated therein by reference and lawfully and
properly filed with the SEC) and each Prospectus included therein or filed
with the SEC, and each amendment thereof or supplement thereto; and
(b) the Company shall give the Rights Holders, the underwriters,
if any, and their respective counsel and accountants such reasonable access
to its books and records and such opportunities to discuss the business of
the Company with its officers and the independent public accountants who
have certified its financial statements as shall be necessary, in the
opinion of such Rights Holders, as the case may be, or such underwriters,
to conduct a reasonable investigation within the meaning of Section
11(b)(3) of the Securities Act.
10. Rule 144 and Rule 144A. At all times during which the Company is
subject to the periodic reporting requirements of the Exchange Act, the
Company covenants that it will file, on a timely basis, the reports
required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and it will
take such further action as any Holder may reasonably request (including,
without limitation, compliance with the current public information
requirements of Rule 144(c) and Rule 144A under the Securities Act), all to
the extent required from time to time to enable the Holders to sell
Registrable Securities without registration under the Securities Act within
the limitation of the conditions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, (b) Rule
144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rule or regulation hereafter adopted by the SEC.
Upon the request of a Holder, the Company will provide reasonable and
customary assistance to facilitate such Holder's sale of Registrable
Securities in block trades or other similar transactions. Notwithstanding
the foregoing, nothing in this Section 10 shall be deemed to require the
Company to register any of it securities pursuant to the Exchange Act.
11. No Inconsistent Agreements. The Company will not enter into any
agreement offering registration rights of the nature set forth herein
without the consent of the holders of a majority of the Registrable
Securities, which consent may be withheld, in their sole discretion.
Notwithstanding anything in this Agreement to the contrary, the Company
shall be allowed to grant demand registration rights and piggyback
registration rights on terms substantially similar to those provided in
this Agreement to new stockholders of the Company prior to an IPO.
12. Assignment of Rights. Except for the Special COSI Rights, any
Holder may assign its rights under the Agreement to (a) any transferee of
the Registrable Securities of such Holder, if such transferee has executed
this Agreement and agreed to be bound by the terms hereof (it being
understood, however, that such Holder shall retain all of such Holder's
rights hereunder with respect to all Registrable Securities not so
transferred thereby) or (b) any stockholder, subsidiary, partner, nominee
or affiliate of such Holder or any such transferee. The transferor shall,
within twenty (20) days after such transfer, furnish the Company with
written notice of the name and address of such transferee and the
securities with respect to which such registration rights are being
assigned. No such transfer may increase the aggregate number of rights to
request a Demand Registration. The Special COSI Rights may not be assigned
to any party except Constellation and its Affiliates unless otherwise
agreed in writing by each of the Company, GSCP, Constellation, Mitsubishi
and TEPCO International.
13. Duration of Agreement. Subject to Section 12, the rights and
obligations of a Holder under this Agreement shall terminate at such time
as such Holder no longer is the beneficial owner of any Shares. All terms
of this Agreement shall survive until, by their respective terms, they are
no longer operative.
14. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall
be effective against the Company or any Holder unless such modification,
amendment or waiver is approved in writing signed by the Company and
holders of a majority of the Registrable Securities.
15. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
16. Entire Agreement. This Agreement and the other writings referred
to herein or delivered pursuant hereto which form a part hereof contain the
entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any
way.
17. Successors and Assigns. Subject to Section 12, this Agreement
shall bind and inure to the benefit of and be enforceable by the Holders
and their respective successors, assigns, heirs and personal
representatives, such that the rights under this Agreement shall inure to
the benefit of and be binding upon subsequent holders of Registrable
Securities. This Agreement shall inure to the benefit of and be binding
upon the Company and any corporation resulting from the merger or
consolidation of the Company with or into such corporation (in which the
Company is not the surviving corporation) or any corporation whose
securities are issued in exchange for Shares.
18. Counterparts. This Agreement may be executed in separate
counterparts each of which, when executed and delivered to the other
parties, shall be an original and all of which taken together shall
constitute one and the same agreement.
19. Remedies. Each party hereto shall be entitled to enforce its
rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other
rights existing in its favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that each party may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of
this Agreement.
20. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered or sent by facsimile or
reputable overnight courier service (charges prepaid) to the Company, GSCP,
Constellation, COSI, Mitsubishi and TEPCO International at the addresses
set forth below and to any subsequent holder of Stock subject to this
Agreement at such address as the Company maintains on its books and
records, or at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder when delivered
personally or on receipt.
The Company's address is: Orion Power Holdings, Inc.
0 Xxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
GSCP's address is: GS Capital Partners II, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxx, Esq.
Constellation's address is: 000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
COSI's address is: Constellation Operating Services, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
DGC's address is: Diamond Generating Corporation
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: President
with a copy to:
Mitsubishi Corporation
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx
Xxxxx 000-0000, Xxxxx
Facsimile: 00-0-0000-0000
Attention: Power & Traffic Project
Development Department
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
DCI's address is: Diamond Cayman, Inc.
c/o Mitsubishi Corporation
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx
Xxxxx 000-0000, Xxxxx
Facsimile: 00-0-0000-0000
Attention: MC/TOK (MD-B)
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
MIC's address is: Mitsubishi International Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Legal Department
Facsimile: 000-000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
TEPCO International's
address is: Tokyo Electric Power Company
International B.V.
Xxxxxxx 0, Xx Xxxxxxxxx 0, 0000XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
Facsimile: 31-20-642-7675
Attention: BTM Trust (Holland) B.V.
with a copy to: The Tokyo Electric Power Co., Inc.
0-0 Xxxxxxxxxx-xxx 0-xxxxx Xxxxxxx-xx
Xxxxx 000-0000 Xxxxx
Facsimile: 00-0-0000-0000
Attention: Business Development Group
International Affairs Department
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
21. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America, in
each case located in the County of New York, for any action, proceeding or
investigation in any court or before any governmental authority
("Litigation") arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any Litigation
relating thereto except in such courts), and further agrees that service of
any process, summons, notice or document by U.S. registered mail to its
respective address set forth in this Agreement shall be effective service
of process for any Litigation brought against it in any such court. Each of
the parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any Litigation arising out of this
Agreement or the transactions contemplated hereby in the courts of the
State of New York or the United States of America, in each case located in
the County of New York, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such
Litigation brought in any such court has been brought in an inconvenient
forum. Each of the parties irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any and all rights to trial by
jury in connection with any Litigation arising out of or relating to this
Agreement or the transactions contemplated hereby.
22. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
23. Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall
not be deemed to modify, limit or restrict in any manner the construction
of the general statement to which it relates. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto
to express their mutual intent, and no rule of strict construction shall be
applied against any party.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement on the day and year first above
written.
ORION POWER HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By:
-----------------------------------------
CONSTELLATION ENTERPRISES, INC.
By:
-----------------------------------------
Name:
Title:
CONSTELLATION OPERATING SERVICES, INC.
By:
-----------------------------------------
Name:
Title:
OTHER GS ENTITIES
-----------------
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.P., its general partner
By: GS Advisors III, Inc., its general partner
By:
-----------------------------------------
STONE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp.,
its general partner
By:
-----------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Advantage Corp.,
its managing general partner
By:
-----------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
By:
By:
-----------------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
By:
By:
-----------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.,
its general partner
By: GS Advisors II, Inc., its general partner
By:
-----------------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III (Cayman), L.P.,
its general partner
By: GS Advisors III, Inc., its general partner
By:
-----------------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO. VERWALTUNGS GmbH
(as nominee for GS Capital
Partners II Germany C.L.P.)
By:
-----------------------------------------
Name:
Title:
and
By:
-----------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
(as nominee for GS Capital
Partners III Germany C.L.P.)
By:
-----------------------------------------
Name:
Title:
and
By:
-----------------------------------------
Name:
Title:
DIAMOND GENERATING CORPORATION
By:
-----------------------------------------
Name:
Title:
DIAMOND CAYMAN, INC.
By:
-----------------------------------------
Name:
Title:
MITSUBISHI INTERNATIONAL CORPORATION
By:
-----------------------------------------
Name:
Title:
TOKYO ELECTRIC POWER COMPANY INTERNATIONAL B.V.
By:
-----------------------------------------
Name:
Title: