EXHIBIT 4.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of March 25, 2004 between DPL INC., an Ohio corporation
("DPL"), and the Purchasers. The term "Purchasers" as used herein shall be
deemed to mean the persons identified as Purchasers on the signature page
hereto, and the term "Purchaser" shall be deemed to mean one of such Purchasers.
All obligations of the Purchasers hereunder are several and not joint.
This Agreement is made pursuant to the Purchase Agreement dated March 24,
2004 (the "Purchase Agreement"), between DPL, as issuer of the 8% Senior Notes
due 2009 (the "Notes"), and the Purchasers, which provides for, among other
things, the sale by DPL to the Purchasers of $175,000,000 aggregate principal
amount of the Notes. In order to induce the Purchasers to enter into the
Purchase Agreement, DPL has agreed to provide to the Purchasers, for the benefit
of the Purchasers and each other Holder (as defined below), the registration
rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in Section 3(t)(D) hereof.
"Affiliate" shall have the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(t)(A)
hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday,
(ii) a day on which banks in New York City, New York are authorized or obligated
by law or executive order to remain closed or (iii) a day on which the Trustee's
principal corporate trust office is closed for business.
"Depositary" shall mean, with respect to Notes or Exchange Notes in global
registered form, The Depository Trust Company, or any other depositary appointed
by DPL; provided, however, that such depositary must have an address in the
Borough of Manhattan, The City of New York.
"DPL" shall have the meaning set forth in the preamble to this Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Eligible Holder" shall have the meaning set forth in Section 2(a)(i)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
and in effect from time to time.
"Exchange Notes" shall mean DPL's 8% Senior Notes due 2009 containing
terms identical to the Notes (except that they will not contain registration
rights, will not provide for any Additional Interest to be payable with respect
thereto and will not contain terms or legends with respect to transfer
restrictions under the Securities Act).
"Exchange Offer" shall mean the offer by DPL to the Holders to exchange
the Registrable Securities for a like principal amount of Exchange Notes
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus to be
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)(ii)(B)
hereof.
"Holder" shall mean each of the Purchasers, for so long as it owns
beneficial interests in any Registrable Securities, and each subsequent
registered holder of, or subsequent owner of beneficial interests in,
Registrable Securities.
"Indenture" shall mean the Indenture dated as of March 1, 2000 between DPL
and the Trustee, as the same may be amended from time to time in accordance with
the terms thereof.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean March 24, 2004, the date of original issuance of
the Notes.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Notes.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Notice" shall have the meaning set forth in Section 2(a)(ii)(A) hereof.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company or a government or agency
or political subdivision thereof.
"Prospectus" shall mean the prospectus to be included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble of
this Agreement.
"Purchasers" shall have the meaning set forth in the preamble of this
Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Notes; provided, however, that the
Notes shall cease to be Registrable Securities when (i) a Registration Statement
with respect to such Notes for the exchange or resale thereof, as the case may
be, has been declared effective under the Securities Act and such Notes have
been disposed of pursuant to such Registration Statement, (ii) such Notes have
been sold to the public pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act or are eligible to be sold
without restriction as contemplated by Rule 144(k), (iii) such Notes have ceased
to be outstanding or (iv) such Notes have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradable by the
holder thereof (other than an Affiliate of DPL).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by DPL with this Agreement, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
SEC or National Association of Securities Dealers, Inc. (the "NASD")
registration and filing fees, including, if applicable, the fees and expenses of
any "qualified independent underwriter" (and its counsel) that is required to be
retained by any Holder of Registrable Securities in accordance with the rules
and regulations of the NASD; (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Notes or Registrable
Securities) and compliance with the rules of the NASD, in an amount not
exceeding $15,000 in the aggregate, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement or any Prospectus, and in preparing or assisting in
preparing, printing and distributing any Registration Statement or any
Prospectus, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for DPL,
of Pillsbury Winthrop LLP, as counsel for the Holders hereunder in connection
with the Exchange Offer, and of the independent certified public accountants of
DPL, including the expenses of any "cold comfort" letters required by or
incident to such performance and compliance with this Agreement, (vi) the
reasonable fees and expenses of the Trustee and its counsel and any paying
agent, exchange agent or custodian, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities or the
Exchange Notes on any securities exchange or exchanges and (viii) the reasonable
fees and expenses of any special experts retained by DPL in connection with any
Registration Statement.
"Registration Statement" shall mean any registration statement of DPL
which covers any of the Exchange Notes or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be provided in Rule 144(k) under the Securities Act (or
similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended and in
effect from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of DPL pursuant to the provisions of Section 2(b) hereof which covers all of the
Registrable Securities, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended and in effect
from time to time.
"Trustee" shall mean X.X. Xxxxxx Trust Company, National Association and
any successor thereto, as trustee under the Indenture.
2. Registration under the Securities Act. (a) Exchange Offer. (i) To the
extent not prohibited by any applicable law or applicable interpretation of the
staff of the SEC, DPL shall, for the benefit of the Holders, at DPL's cost, use
its reasonable best efforts to (A) prepare and cause to be filed with the SEC,
not later than 120 days after the Issue Date, an Exchange Offer Registration
Statement on an appropriate form under the Securities Act relating to the
Exchange Offer, (B) cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the SEC not later than 180 days
after the Issue Date and (C) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law, and in any event through the Exchange Period) after the date the
Notice of the Exchange Offer is mailed to the Holders. Upon the effectiveness of
the Exchange Offer Registration Statement, DPL shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder so electing to exchange Registrable Securities for a like principal
amount of Exchange Notes (assuming that such Holder (w) is not an Affiliate of
DPL, (x) is not a broker-dealer tendering Registrable Securities acquired
directly from DPL for its own account, (y) acquires the Exchange Notes in the
ordinary course of such Holder's business and (z) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes and is not otherwise prohibited by
any law or policy of the SEC from participating in the Exchange Offer) (any
Holder meeting all such requirements, hereinafter an "Eligible Holder"), and to
transfer such Exchange Notes from and after their receipt without any
limitations or restrictions under the Securities Act and under state securities
or blue sky laws.
(ii) In connection with the Exchange Offer, DPL shall:
(A) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents
(together, the "Notice");
(B) use its reasonable best efforts to keep the Exchange
Offer open for acceptance for a period of not less than 30
calendar days after the date Notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(C) utilize the services of the Depositary for the Exchange
Offer;
(D) permit Holders to withdraw, at any time prior to the
close of business, New York time, on the last Business Day of the
Exchange Period, any Notes tendered for exchange by sending to the
institution specified in the Notice, a telegram, telex, facsimile
transmission or letter, received before the aforesaid time,
setting forth the name of such Holder, the principal amount of
Notes delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Notes exchanged;
(E) notify each Holder by means of the Notice that any Note
not tendered by such Holder in the Exchange Offer will remain
outstanding and continue to accrue interest, but will not retain
any rights under this Agreement (except in the case of
Participating Broker-Dealers as provided herein); and
(F) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
(iii) As soon as practicable after the close of the Exchange
Offer, DPL shall:
(A) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer;
(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for
exchange by DPL; and
(C) cause the Trustee to promptly authenticate and deliver
to the Depositary, Exchange Notes equal in principal amount to the
principal amount of the Notes surrendered by such Holder.
(iv) Interest on each Exchange Note issued pursuant to the
Exchange Offer will accrue from the last date on which interest was paid
on the Note surrendered in exchange therefor or, if no interest has been
paid on such Note, from the Issue Date. To the extent not prohibited by
any law or applicable interpretation of the staff of the SEC, DPL shall
use its reasonable best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the SEC
and that each Holder tendering Notes for exchange shall be an Eligible
Holder. Each Holder of Registrable Securities who wishes to exchange such
Registrable Securities for Exchange Notes in the Exchange Offer will be
required to make certain customary representations in connection
therewith, including representations that (A) it is not an Affiliate of
DPL, (B) it is not a broker-dealer tendering Registrable Securities
acquired directly from DPL, (C) the Exchange Notes to be received by it
will be acquired in the ordinary course of its business and (D) at the
time of the Exchange Offer, it has no arrangements or understandings with
any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes. Each Holder hereby acknowledges
and agrees that any Participating Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the Exchange
Notes: (1) could not under SEC policy as in effect on the date of this
Agreement rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the SEC's letter
to Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained based on the representations in
clause (A) above) and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with
the secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Items 507
and 508, as applicable, of Regulation S-K under the Securities Act, if
the resales are of Exchange Notes obtained by such Holder in exchange for
Notes acquired by such Holder directly from DPL.
(v) Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities
that are Exchange Notes held by Participating Broker-Dealers, and DPL
shall have no further obligation to register the Registrable Securities
(other than pursuant to Section 2(b)(iii) or Section 2(b)(iv)) pursuant
to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) DPL is not permitted to
effect the Exchange Offer because of any change in law or currently prevailing
interpretations of the staff of the SEC, (ii) the Exchange Offer is not
consummated within 210 days after the Issue Date, or (iii) any Holder (other
than a Participating Broker-Dealer), in the opinion of counsel to such Holder
reasonably acceptable to DPL, is not eligible to participate in the Exchange
Offer or in the case of any Holder (other than a Participating Broker-Dealer)
that participates in the Exchange Offer, such Holder does not receive freely
tradable Exchange Notes on the date of the exchange and any such Holder so
requests (any of the events specified in (i), (ii) or (iii) being a "Shelf
Registration Event" and the date of occurrence thereof, the "Shelf Registration
Event Date"), DPL shall promptly deliver to the Holders and the Trustee written
notice thereof and, at its cost, file as promptly as practicable after such
Shelf Registration Event Date, and, in any event, within 45 days after such
Shelf Registration Event Date (but no earlier than 120 days after the Issue
Date) a Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Securities, and shall use its reasonable best efforts to
have such Shelf Registration Statement declared effective by the SEC as soon as
practicable. No Holder of Registrable Securities shall be entitled to include
any of its Registrable Securities in any Shelf Registration pursuant to this
Agreement unless and until such Holder agrees in writing to be bound by all of
the provisions of this Agreement applicable to such Holder and furnishes to DPL
in writing, within 15 days after receipt of a request therefor, such information
as DPL may, after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected agrees to
promptly furnish to DPL all information with respect to such Holder necessary to
make the information previously furnished to DPL by such Holder not materially
misleading.
DPL agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and usable for resales for the
Rule 144(k) Period (subject to extension pursuant to Section 3(t)(D)) or for
such shorter period which will terminate when all of the securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities (the "Effectiveness
Period"). DPL shall not permit any securities other than Registrable Securities
to be included in the Shelf Registration. DPL will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement and notify each such Holder when the Shelf Registration
has become effective. DPL further agrees, if necessary, to supplement or amend
the Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by DPL for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and DPL agrees to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. DPL shall pay all Registration Expenses in connection
with any Registration Statement filed pursuant to Section 2(a) or 2(b) hereof
and will reimburse the Purchasers for the reasonable fees and disbursements of
Pillsbury Winthrop LLP, counsel for the Purchasers, or any other single counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Registrable Securities, incurred in connection with the Exchange Offer or
in connection with a Shelf Registration Statement. Except as provided herein,
each Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof (or a combination of the two) will not be deemed
to have become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective, the offering
of Registrable Securities pursuant to such Exchange Offer Registration Statement
or Shelf Registration Statement is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other governmental agency or
court, such Exchange Offer Registration Statement or Shelf Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. DPL will be deemed not to have used
its reasonable best efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if it voluntarily takes any action
that would result in any such Registration Statement not being declared
effective or that would result in the Holders of Registrable Securities covered
thereby not being able to exchange or offer and sell such Registrable Securities
during that period, unless such action is required by applicable law.
(e) Additional Interest. If DPL fails to comply with this Agreement
or if the Exchange Offer Registration Statement or the Shelf Registration
Statement fails to become or remain effective as required by this Agreement,
then, as liquidated damages, additional interest ("Additional Interest") shall
become payable in respect of the Notes as follows:
(i) if the Exchange Offer Registration Statement is not filed
with the SEC on or prior to the 120th day after the Issue Date or,
notwithstanding that DPL has consummated or will consummate an Exchange
Offer, DPL is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then, commencing on the day after the
applicable required filing date, Additional Interest shall accrue on the
principal amount of the Notes at a rate of .50% per annum; and
(ii) if (A) the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th day after the
Issue Date or (B) whether or not DPL has consummated or will consummate
an Exchange Offer, DPL is required to file a Shelf Registration Statement
and such Shelf Registration Statement is not declared effective by the
SEC on or prior to the 60th day after the date such Shelf Registration
Statement was required to be filed, then, commencing on the 181st day
after the Issue Date or the 61st day after the applicable required filing
date, as the case may be, Additional Interest shall accrue on the
principal amount of the Notes at a rate of .50% per annum; and
(iii) (A) if DPL has not exchanged the Exchange Notes for the Notes
validly tendered, in accordance with the terms of the Exchange Offer, on
or prior to the 210th day after the Issue Date or (B) during any time an
Exchange Offer Registration Statement or a Shelf Registration Statement
ceases to be effective as described in Section 2(d), then Additional
Interest shall accrue on the principal amount of Notes, at a rate of .50%
per annum, commencing on the 211th day after the Issue Date, in the case
of (A) above, or the day such Registration Statement ceases to be
effective, in the case of (B) above;
provided, however, that the Additional Interest rate on the Notes may not exceed
in the aggregate 1.0% per annum; provided, further, however, that (1) upon the
filing of the applicable 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 Notes for all Notes validly tendered (in the case of
clause (iii)(A) above), or upon the effectiveness of any Registration Statement
that had ceased to remain effective (in the case of clause (iii) (B) above), or
(4) upon the expiration of the Rule 144(k) Period, Additional Interest on the
Notes as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to Section 2(e)(i), (ii)
or (iii) above will be payable in cash on the relevant payment dates for the
payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, DPL acknowledges that any failure of DPL to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the obligations of DPL under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of DPL with
respect to the Registration Statements pursuant to Sections 2(a) and 2(b)
hereof, DPL shall:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified in Section 2 hereof on the appropriate
form(s) under the Securities Act, which form(s) (i) shall be selected by DPL,
(ii) shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable Securities and
(iii) shall comply as to form in all material respects with the requirements of
the applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith; and use its reasonable
best efforts to cause such Registration Statement(s) to become effective and
remain effective (and, in the case of a Shelf Registration Statement, usable for
resales) in accordance with Section 2 hereof; provided, however, that if (1)
such filing is pursuant to Section 2(b), or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to resell Exchange Notes, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, DPL shall furnish to and
afford the Holders of the Registrable Securities and each such Participating
Broker-Dealer, as the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed. DPL shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, reasonably object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be, and cause each Prospectus to be supplemented, if so
determined by DPL or requested by the SEC, by any required prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the Effectiveness
Period or the Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advise such Holder that
the distribution of Registrable Securities will be made in accordance with the
method selected by the Majority Holders, (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
prospectus, and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities, (iii) consent to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the Shelf Registration
Statement in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto, (iv) after the
effective time of the Shelf Registration Statement, promptly upon the request of
any holder of Registrable Securities that is not then identified therein as a
selling securityholder, take any action reasonably necessary to enable such
Holder to use the Prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to identify such
Holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this clause (iv) shall relieve any such
Holder of the obligation to return a completed and signed questionnaire to DPL
in accordance with the terms hereof and (v) furnish to each Holder of
Registrable Securities upon request, a copy of this Agreement or, if so
requested, a summary thereof if requested by any such Holder;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions of the United States by the time the applicable
Registration Statement is declared effective by the SEC as any Holder of
Registrable Securities covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Securities shall reasonably request
in writing in advance of such date of effectiveness, and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Holder and underwriter to legally consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that DPL shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d) or (ii) file any general consent
to service of process in any jurisdiction where it would not otherwise be
subject to such service of process;
(e) (1) in the case of a Shelf Registration or (2) in the event that
Participating Broker-Dealers from whom DPL has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof are seeking to sell
Exchange Notes and are required to deliver Prospectuses, promptly notify each
Holder of Registrable Securities, or each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the Exchange
Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of DPL contained in any purchase agreement, securities sales
agreement or any underwriting agreement entered into as described in Section
3(m), cease to be true and correct in all material respects, (v) of the
happening of any event or the failure of any event to occur or the discovery of
any facts or otherwise, (A) which makes any statement made in such Registration
Statement untrue in any material respect or which causes such Registration
Statement to omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case, as of the
time such Registration Statement became effective or (B) which makes any
statement made in a Prospectus untrue in any material respect or which causes
such Prospectus to omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then existing, not
misleading, in each case, as of the date of such Prospectus or as of any date on
which a Prospectus is delivered at any time that the related Registration
Statement is required to be effective and (vi) when DPL reasonably determines
that a post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of such Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective amendment
thereto (including all financial statements and schedules, and, if so requested,
documents incorporated therein by reference or exhibits thereto);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders
or the underwriters, if any, may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified by Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading; and notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder hereby
agrees to suspend use of the Prospectus until DPL has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders; and make such of the representatives of DPL as shall be
reasonably requested by the Holders of Registrable Securities or the Purchasers
on behalf of such Holders available for reasonable discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes, no later than the
effective date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Notes or the Registrable Securities, as the case
may be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the TIA in connection
with the registration of the Exchange Notes or the Registrable Securities, as
the case may be, and effect such changes to such documents as may be required
for them to be so qualified in accordance with the terms of the TIA and execute,
and use its reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such documents to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and consistent with the terms of the Purchase Agreement and take all such other
appropriate actions in connection therewith as are reasonably requested in order
to expedite or facilitate the registration or the disposition of the Registrable
Securities, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is with respect to an
underwritten offering, if requested by Holders of Notes covered thereby: (i)
make such representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business of DPL
and its subsidiaries as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to DPL and updates thereof (which may
be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a majority
in principal amount of the Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such underwriters (it being agreed that the
matters to be covered by such opinions may be subject to customary
qualifications and exceptions); (iii) obtain "cold comfort" letters and updates
thereof in form and substance reasonably satisfactory to the managing
underwriters (if any) from the independent certified public accountants of DPL
(and, if necessary, any other independent certified public accountants of any
subsidiary of DPL or of any business acquired by DPL for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each of such underwriters, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, to cause said underwriting agreement to contain indemnification
provisions and procedures no less favorable than those set forth in Section 4
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities covered by such
Registration Statement and the managing underwriters or agents) with respect to
all parties to be indemnified pursuant to said Section, including, without
limitation, such underwriters and selling Holders (the above shall be done at
each closing under such underwriting agreement or, as and to the extent required
thereunder and consistent with the terms of the Purchase Agreement);
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of such Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of DPL and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of DPL and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration Statement;
provided, however, that the foregoing inspection and information gathering shall
be coordinated on behalf of all such parties by DPL's designated Holders'
counsel, at the expense of such parties as described in Section 2(c) hereof.
Records of DPL and its subsidiaries which DPL determines in good faith to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or omission in
such Registration Statement; provided that DPL shall be consulted prior to any
such disclosure, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding or (iii) the information in
such Records has been made available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it or any Inspector
retained by it as a result of such inspections shall be deemed confidential and
shall not be used by it or any Inspector retained by it as the basis for any
market transactions in the securities of DPL unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to DPL and allow DPL
(at DPL's expense) to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(o) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement is applicable and make generally
available to its security holders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act), no later than 60 days after the end
of any 12-month period (or 120 days after the end of any 12-month period 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 commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of DPL
after the effective date of a Registration Statement, which statements shall
cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain an opinion (or reliance letter) of counsel to DPL addressed to
the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer which restates the opinions delivered
pursuant to the Purchase Agreement (with such changes as are customary to
address the Registration Statement and the transfer of the registered Exchange
Notes) and which, without limitation, includes an opinion that (A) DPL has duly
authorized, executed and delivered the Exchange Notes, (B) each of the Exchange
Notes constitutes a legal, valid and binding obligation of DPL, enforceable
against DPL in accordance with its terms (with customary exceptions), and (C)
the Indenture has been duly qualified under the TIA or no such qualification is
required by the TIA;
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Securities by Holders to DPL (or to such other Person as directed by
DPL), in exchange for the Exchange Notes, xxxx, or cause to be marked, on such
Registrable Securities delivered by such Holders that such Registrable
Securities are being canceled in exchange for the Exchange Notes, and in no
event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement,
(i) (a) indicate in a "Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that any broker or dealer
registered under the Exchange Act who holds Notes that are Registrable
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Registrable
Securities acquired directly from DPL) (such broker or dealer, a "Participating
Broker-Dealer"), may exchange such Notes pursuant to the Exchange Offer;
however, such Participating Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Notes received by such Participating Broker-Dealer in
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Participating Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement and (b) include in such "Plan of
Distribution" section all other information with respect to such resales by
Participating Broker-Dealers that the SEC may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Participating Broker-Dealer or disclose the amount of Exchange Notes held
by any such Participating Broker-Dealer except to the extent required by the
Commission as a result of a change in policy announced after the date of this
Agreement, (ii) furnish to each Participating Broker-Dealer who has delivered to
DPL the notice referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement, including
any preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (DPL hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment or supplement thereto), (iii) use its
reasonable best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein in order
to permit such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, for such period of time as such Persons must
comply with such requirements under the Securities Act and applicable rules and
regulations in order to resell the Exchange Notes; provided, however, that such
period shall not be required to exceed 90 days (or such longer period if
extended pursuant to the last sentence of Section 3(t)(D) hereof) (the
"Applicable Period") and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it is required to deliver a prospectus meeting
the requirements of the Securities Act in connection with
any resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer,"
and (y) a statement to the effect that, by a Participating Broker-Dealer making
the acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act;
(B) in the case of any Exchange Offer Registration
Statement, deliver to a representative of any Participating Broker-Dealer, if
requested by the Participating Broker-Dealer, upon consummation of the Exchange
Offer and (in the case of clause (iii) below) upon the effectiveness of the
Exchange Offer Registration Statement, (i) an opinion of counsel in form and
substance reasonably satisfactory to such representative of such Participating
Broker-Dealer, covering the matters customarily covered in opinions requested in
connection with Exchange Offer Registration Statements and such other matters as
may be reasonably requested (it being agreed that the matters to be covered by
such opinion may be subject to customary qualifications and exceptions), (ii) an
officer's certificate containing certifications substantially similar to those
set forth in a certificate delivered pursuant to Section 8(a) of the Purchase
Agreement and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) a comfort letter, in each case, in
customary form as permitted by Statement on Auditing Standards No. 72;
(C) DPL may require each seller of Registrable Securities as
to which any registration is being effected to furnish to DPL such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. DPL may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. DPL shall not
have any obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information; and
(D) (1) In the case of a Shelf Registration Statement or (2)
in the event that Participating Broker-Dealers have previously notified DPL in
writing that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof and are seeking
to sell Exchange Notes and are required to deliver Prospectuses, each Holder
agrees that, upon receipt of any notice from DPL of the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by DPL that the use of the applicable
Prospectus may be resumed, and, if so directed by DPL, such Holder will deliver
to DPL (at DPL's expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If DPL gives any such notice to
suspend the disposition of Registrable Securities or Exchange Notes, as the case
may be, pursuant to a Registration Statement, DPL shall use its best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
and usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when DPL has made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or (y)
the Advice; and
(u) In the event that any broker-dealer registered under the
Exchange Act underwrites any Notes or participates as a member of an
underwriting syndicate or selling group or "assists in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the NASD) thereof, whether as
a Holder of such Notes or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, DPL will assist such
broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating to such
Notes, to exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Notes, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 4 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules.
4. Indemnification and Contribution. (a) DPL agrees to indemnify and hold
harmless each Holder of the Registrable Securities or Exchange Notes, any
Participating Broker-Dealer (and its partners, directors and officers) and each
person, if any, who controls such Holder or such Participating Broker-Dealer
(and its partners, directors and officers) within the meaning of the Securities
Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Registrable Securities or Exchange Notes) to which each such Indemnified Party
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, each Indemnified Party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) DPL shall not be liable to a Holder in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to DPL by or on behalf of such Holder expressly for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder or Participating Broker-Dealer from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Registrable Securities or Exchange Notes concerned, to the extent
that a prospectus relating to such Registrable Securities or Exchange Notes was
required to be delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Registrable Securities or Exchange Notes to
such person, a copy of the final prospectus if DPL had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any liability
which DPL may otherwise have to such Indemnified Party. DPL shall also indemnify
underwriters, their partners, officers and directors and each person who
controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Registrable Securities or Exchange Notes
if requested by such Holders.
(b) Each Holder of the Registrable Securities or Exchange Notes,
severally and not jointly, will indemnify and hold harmless DPL and each person,
if any, who controls DPL within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which DPL or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to DPL by or on behalf of such Holder expressly for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, DPL for any legal or other expenses reasonably incurred
by DPL or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to DPL or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than to
the extent the indemnifying party is prejudiced thereby, and in any event shall
not relieve it from liability that it may have otherwise on account of this
indemnity agreement. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who may, subject to the terms hereof, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof. The indemnifying party
shall not be liable for any settlement of any action effected without its
consent, but if any such action is settled with the consent of the indemnifying
party or if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, and does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 4(d) were determined by pro rata allocation (even if
the Holders or any agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 4(d). The
relative fault of the parties 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 DPL on the one hand or such Holder or such other indemnified party,
as the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
any other provision of this Section 4(d), the Holders of the Registrable
Securities or Exchange Notes shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Registrable Securities or Exchange Notes pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such indemnified
party and each person, if any, who controls DPL within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as
DPL.
(e) The agreements contained in this Section 4 shall survive the
sale of the Registrable Securities or Exchange Notes pursuant to a Registration
Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
(f) The remedies provided for in this Section 4 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
5. Participation in Underwritten Registrations. No Holder may participate
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
covered by the Shelf Registration Statement who desire to do so may sell the
securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(m) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to DPL.
7. Miscellaneous. (a) Rule 144A. For so long as any Registrable Securities
remain outstanding, if DPL ceases to be required to file, or fails to timely
file, reports required pursuant to Section 13 or 15(d) of the Exchange Act, it
will, upon the request of any Holder of Registrable Securities (a) deliver such
information to purchasers and prospective purchasers as is necessary to permit
sales of their Registrable Securities pursuant to Rule 144A under the Securities
Act and take such further action as any Holder of Registrable Securities may
reasonably request and (b) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144A
under the Securities Act, as such rule may be amended and in effect from time to
time. Upon the request of any Holder of Registrable Securities, DPL will deliver
to such Holder a written statement as to whether it has complied with such
requirements. Without limiting the foregoing, DPL will provide a copy of this
Agreement upon request to any purchaser or prospective purchaser of Notes.
(b) No Inconsistent Agreements. DPL has not entered into, nor will
DPL on or after the date of this Agreement enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or that otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of DPL's other issued
and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of Holders of a majority in
aggregate principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder.
Each Holder of Registrable Securities shall be bound by any amendment or waiver
effected pursuant to this Section 7(c), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such security or is
delivered to such Holder. The Company shall bear any reasonable expense of each
Holder of Registrable Securities in connection with any action pursuant to, or
enforcement of, this Section 7(c).
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to DPL by means
of a notice given in accordance with the provisions of this Section 7(d) or in
the absence of such notice, as specified in the Indenture for registered holders
of Notes, which address initially is, with respect to the Purchasers, the
address set forth in the Purchase Agreement and (ii) if to DPL, initially at
DPL's address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders, and DPL; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder acquires Registrable Securities
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be a third party beneficiary of the agreements made
hereunder among DPL and the Purchasers and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) Consent to Jurisdiction. DPL irrevocably submits to the
non-exclusive jurisdiction of any federal or state court of competent
jurisdiction in the City, County and State of New York, United States of
America, in any legal suit, action or proceeding based on or arising under this
Agreement and agrees that all claims in respect of such suit or proceeding may
be determined in any such court. Subject to the ability of a federal court of
competent jurisdiction to raise the issue on its own motion, DPL irrevocably
waives the defense of an inconvenient forum or objections to personal
jurisdiction with respect to the maintenance of such legal suit, action or
proceeding. DPL agrees that service of process at its principal executive
offices shall be deemed in every respect effective service of process upon DPL
in any such legal suit, action or proceeding. Nothing herein shall affect the
right of the Purchasers or any person controlling the Purchasers to serve
process in any other manner permitted by law. The provisions of this subsection
(g) shall remain operative and in full force and effect regardless of any
termination of this Agreement, in whole or in part.
(h) Counterparts Facsimile. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, and
signature pages may be delivered by facsimile, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF NEW YORK. THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Securities Held by DPL or its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by DPL or any of its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage, but shall continue to be treated as
outstanding.
[SIGNATURE PAGES OMITTED]
