EXHIBIT 1.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 22, 2001 (this
"AGREEMENT"), among PSI ENERGY, INC., an Indiana corporation (the "COMPANY") and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, ABN AMRO ROTHSCHILD LLC, AND
X.X. XXXXXX SECURITIES INC. as the initial purchasers (the "INITIAL PURCHASERS")
of the First Mortgage Bonds, Series EEE, 6.65%, Due June 15, 2006 of the
Company.
This Agreement is made pursuant to the Purchase Agreement, dated as of June
15, 2001, among the Company and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
provided for in the Agreement to the Initial Purchasers and their respective
direct and indirect transferees. The execution of the Agreement is a condition
to the closing of the transactions contemplated by the Purchase Agreement.
1. CERTAIN DEFINITIONS.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "ADDITIONAL INTEREST" has the meaning assigned thereto in Section
2(c).
(b) "AFFILIATE" has the meaning given thereto in Rule 405.
(c) "CLOSING DATE" means the date on which the Bonds are initially
issued.
(d) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(e) "BONDS" means the First Mortgage Bonds, Series EEE, 6.65%, Due
June 15, 2006, to be issued under the Indenture and sold by the Company to
the Initial Purchasers, and First Mortgage Bonds (other than Exchange
Bonds) issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(f) "EFFECTIVENESS PERIOD" means the period commencing with the date
hereof and ending on the date that all Bonds have ceased to be Registrable
Bonds.
(g) "EFFECTIVE TIME," in the case of (i) an Exchange Offer, means the
time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and
(ii) a "SHELF REGISTRATION" means the time and date as of which the
Commission declares the Shelf Registration Statement effective or as of
which the Shelf Registration Statement otherwise becomes effective.
(h) "EXCHANGE ACT" means the Securities Exchange Act of 1934 and the
rules and regulations promulgated by the SEC thereunder, all as the same
shall be amended from time to time.
(i) "EXCHANGE BONDS" has the meaning assigned thereto in Section
2(a).
(j) "EXCHANGE OFFER" has the meaning assigned thereto in Section
2(a).
(k) "EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning assigned
thereto in Section 2(a).
(l) "HOLDER" means each Initial Purchaser for so long as it owns any
Registrable Bonds, and such of its respective successors and assigns who
acquire Registrable Bonds, directly or indirectly, from such person or from
any successor or assign of such person, in each case for so long as such
person owns any Registrable Bonds.
(m) "INDENTURE" means the Company's Indenture of Mortgage and Deed of
Trust dated September 1, 1939, under which LaSalle National Bank is the
successor trustee, as amended or supplemented by fifty-two supplemental
First Mortgage Indentures thereto and as to be further amended and
supplemented by a Fifty-Third Supplemental Indenture, as the same shall be
amended from time to time.
(n) "INITIAL PURCHASERS" mean Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, ABN AMRO Rothschild LLC, and X.X. Xxxxxx Securities Inc.
(o) "PERSON" means a corporation, association, partnership, limited
liability company, business, individual, or any other entity or
organization, including any government or political subdivision thereof or
governmental agency.
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(p) "PARTICIPATING BROKER-DEALER" has the meaning assigned thereto in
Section 6(a).
(q) "PURCHASE AGREEMENT" means the Purchase Agreement dated as of
June 15, 2001 among the Company and the Initial Purchasers.
(r) "REGISTRABLE BONDS" means the Bonds; PROVIDED, HOWEVER, that the
Bonds shall cease to be Registrable Bonds when (i) the Bonds have been
exchanged for Exchange Bonds in an Exchange Offer as contemplated in
Section 2(a); (ii) in the circumstances contemplated by Section 2(b), a
registration statement registering the Bonds under the Securities Act has
been declared or becomes effective and the Bonds have been sold or
otherwise transferred by the holder thereof pursuant to such effective
registration statement; (iii) the Bonds are sold pursuant to Rule 144 under
circumstances in which any legend borne by the Bonds relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed or the Bonds are eligible to be sold pursuant to
paragraph (k) of Rule 144; or (iv) the Bonds shall cease to be outstanding.
(s) "REGISTRATION DEFAULT" has the meaning assigned thereto in
Section 2(c).
(t) "REGISTRATION EXPENSES" has the meaning assigned thereto in
Section 4.
(u) "REGISTRATION STATEMENT" has the meaning assigned thereto in
Section 2(b).
(v) "RESALE PERIOD" means the period beginning on the date the Shelf
Registration Statement becomes effective and ending on the earlier of (i)
the Shelf Registration Statement ceasing to be effective or (ii) the second
anniversary of the Closing Date.
(w) "RESTRICTED HOLDER" means (i) a holder that is an Affiliate of
the Company, (ii) a holder who acquires Exchange Bonds outside the ordinary
course of such holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Bonds, or (iv) a broker-dealer who
receives Bonds for its own account but did not acquire the Bonds as a
result of market-making activities or other trading activities.
(x) "RULE 144," "RULE 405" and "RULE 415" means, in each case, such
rule promulgated under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
SEC.
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(y) "SECURITIES ACT" means the Securities Act of 1933 and the rules
and regulations promulgated by the SEC thereunder, all as the same shall be
amended from time to time.
(z) "SHELF REGISTRATION STATEMENT" has the meaning assigned thereto
in Section 2(b).
(aa) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b), the Company agrees to use
its reasonable best efforts to file under the Securities Act a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to an
offer to exchange (the "EXCHANGE OFFER") any and all of the Bonds for a
like aggregate amount of Bonds issued by the Company, which have the same
terms as the Bonds (and are entitled to the benefits of a trust indenture
which has been qualified under the Trust Indenture Act), except that they
have been registered pursuant to an effective registration statement under
the Securities Act, do not contain restrictions on transfers and do not
contain provisions for the additional interest contemplated in Section 2(c)
below (such new Bonds hereinafter called "EXCHANGE BONDS"). The Company
agrees to use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act within
180 days after the Closing Date. The Company agrees to use its reasonable
best efforts to register the Exchange Offer under the Securities Act on the
appropriate form and to comply with all applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection
with the Exchange Offer. The Company further agrees to use its reasonable
best efforts to commence and complete the Exchange Offer promptly after the
Exchange Offer Registration Statement has become effective for all Bonds
that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed
completed only (i) if the Exchange Bonds received by holders (other than
Restricted Holders) in the Exchange Offer for Bonds are, upon receipt,
transferable by each such holder without restriction
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imposed thereon by the Securities Act or the Exchange Act and without
material restrictions imposed thereon by the blue sky or securities laws of
a substantial majority of the States of the United States of America and
(ii) upon the Company having exchanged, pursuant to the Exchange Offer,
Exchange Bonds for all Bonds that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange
Offer.
(b) If (i) because of any change in law or in applicable
interpretations by the staff of the Commission, the Company is not
permitted to effect the Exchange Offer or (ii) in the case of any holder,
other than a Restricted Holder, that participates in the Exchange Offer,
such holder does not receive Exchange Bonds on the date of the exchange
that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such holder as an Affiliate of
the Company), then in addition to or in lieu of conducting the Exchange
Offer contemplated by Section 2(a), the Company shall file under the
Securities Act as promptly as practicable a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed
basis by the holders of, all of the then Registrable Bonds, pursuant to
Rule 415 or any similar rule that may be adopted by the Commission (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT"). The Company agrees to
use its reasonable best efforts to cause the Shelf Registration Statement
to become or be declared effective and to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of (i)
the second anniversary of the Closing Date or (ii) such time as there are
no longer any Registrable Bonds outstanding. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registrations,
and the Company agrees to furnish to the holders of the Registrable Bonds
copies of any such supplement or amendment promptly following its filing
with the Commission.
(c) If any of the following events (any such event a "REGISTRATION
DEFAULT") shall occur, then, as liquidated damages, additional interest
(the "ADDITIONAL INTEREST") shall become payable in respect of the Bonds as
follows:
(i) if the Exchange Offer Registration Statement or a Shelf
Registration Statement is not filed with the Commission within 120
days following the Closing Date, then commencing on the 121st day
after the Closing Date, Additional Interest shall accrue on the
principal amount of the Bonds at a rate of 0.25% per annum; or
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(ii) if neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the Commission
on or prior to the 180th day following the Closing Date, then
commencing on the 181st day after the Closing Date, Additional
Interest shall accrue on the principal amount of the Bonds at a rate
of 0.25% per annum; or
(iii) if either (A) the Company has not exchanged Exchange Bonds
for all Bonds validly tendered and not withdrawn, in accordance with
the terms of the Exchange Offer, on or prior to 35 days after the date
on which the Exchange Offer Registration Statement was declared
effective, or (B) if applicable, the Shelf Registration Statement has
been declared effective but such Shelf Registration Statement ceases
to be effective at any time prior to two years from the Closing Date,
then commencing on (x) the 36th day after such effective date, in the
case of (A) above, or (y) the day such Shelf Registration Statement
ceases to be effective, in the case of (B) above, Additional Interest
shall accrue on the principal amount of Bonds at a rate of 0.25% per
annum.
PROVIDED, HOWEVER, that the Additional Interest rate on the Bonds, shall
not exceed in the aggregate 0.25% per annum; AND PROVIDED FURTHER, that (1)
upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Bonds for all Bonds validly tendered and not withdrawn
(in the case of clause (iii) (A) above), or upon the effectiveness of the
Shelf Registration Statement which had ceased to remain effective (in the
case of clause (iii) (B) above), or (4) upon the termination of transfer
restrictions on the Bonds as a result of the application of Rule 144(k),
Additional Interest on the Bonds as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue.
(d) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the
applicable Effective Time and any reference herein to any post effective
amendment to a registration statement shall be deemed to include any
document incorporated therein by reference as of a time after such
Effective Time.
(e) Notwithstanding any other provision of this Agreement, no holder
of Registrable Bonds who does not comply with the provisions of Section
3(d), if applicable, shall be entitled to receive Additional Interest
unless and until such holder complies with the provisions of such section,
if applicable.
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3. REGISTRATION PROCEDURES.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, the Company shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to the
Shelf Registration Statement, if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration Statement on any form
which may be utilized by the Company and which shall permit the
disposition of the Registrable Bonds in accordance with the intended
method or methods thereof, as specified in writing by the holders of
the then Registrable Bonds, and use its reasonable best efforts to
cause such registration statement to become effective as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness
of such registration statement for the period specified in Section
2(b) and as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of such
registration statement, and furnish to the holders of the then
Registrable Bonds copies of any such supplement or amendment
simultaneously with its being filed with the Commission;
(iii) comply, as to all matters within the Company's control,
with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Bonds covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the holders of the Registrable Bonds
to be included in such registration statement, (B) the underwriters
(which term, for purposes of this Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement agent, if
any, therefor, (D) counsel for such underwriters or agent and (E)
counsel for the holders of
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such Registrable Bonds who so request of the Company in writing the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the Resale Period, make
available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the persons
referred to in (D) and (E) of Section 3(b)(iv), who shall certify to
the Company that they represent persons who have a current intention
to sell their Registrable Bonds pursuant to the Shelf Registration
Statement, such financial and other information and books and records
of the Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond to
such inquiries, as shall be reasonably necessary, in the judgment of
the representatives referred to above, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
PROVIDED, HOWEVER, that each representative and party represented
shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of
its inclusion in such registration statement or otherwise), or (B)
such person shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the requirements
of such order, and only after such person shall have given the Company
prompt prior written notice of such requirement and the opportunity to
contest the same or seek an appropriate protective order), or (C) such
information is required to be set forth in such registration statement
or the prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such
prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made;
(vi) promptly notify the selling holders of Registrable Bonds,
the sales or placement agent, if any, therefor and the managing
underwriter or underwriters, if any, thereof named in the Shelf
Registration Statement or a supplement thereto, and confirm such
notice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective
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amendment, when the same has become effective, (B) of the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or written threat of any
proceedings for that purpose, (C) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Bonds for sale in any jurisdiction or the initiation
or written threat of any proceeding for such purpose, or (D) at any
time when a prospectus is required to be delivered under the
Securities Act, if such registration statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act;
(vii) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement
or any post-effective amendment thereto at the earliest practicable
date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder of Registrable Bonds,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission relating to the terms of the sale of
such Registrable Bonds, including information with respect to the
principal amount of Registrable Bonds being sold by such holder or
agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Bonds and
any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters
and any other terms of the offering of the Registrable Bonds to be
sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Bonds, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(b)(iv) a conformed
copy of such registration statement, each amendment or supplement
thereto (in each case including all exhibits thereto) and such number
of copies of such registration statement (excluding exhibits thereto)
and of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), as
they may reasonably request; and the Company hereby consents to the
use of such
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prospectus (including any such preliminary or summary prospectus) and
any amendment or supplement thereto by each such holder and by any
such agent and underwriter, in each case in the form most recently
provided to such person by the Company in connection with the offering
and sale of the Registrable Bonds covered by the prospectus (including
any such preliminary or summary prospectus) or any supplement or
amendment thereto; and
(x) use its reasonable best efforts to (A) register or qualify
the Registrable Bonds to be included in such registration statement
under such securities laws or blue sky laws of such United States
jurisdictions as any holder of such Registrable Bonds and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, and (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration Statement is
required to remain effective under Section 2(b); PROVIDED, HOWEVER,
that the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this
Section 3(b)(x), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its Amended Articles of
Consolidation or by-laws or any agreement between it and its
stockholders.
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company, such obligation shall be
subject to the provision of such information by such party; provided that the
Company shall use its reasonable best efforts to obtain the necessary
information from any party responsible for providing such information.
(c) In the event that the Company would be required, pursuant to
Section 3(b)(vi)(D), to notify the selling holders of Registrable Bonds,
the placement or sales agent, if any, therefor or the managing
underwriters, if any, thereof named in the Shelf Registration Statement or
a supplement thereto of the existence of the circumstances described
therein, the Company shall promptly prepare and furnish to each such
holder, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Bonds, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act. Each holder of Registrable Bonds agrees that upon receipt of
any notice from the Company, pursuant to Section 3(b)(vi)(D), such holder
shall forthwith discontinue (and cause any placement or sales agent or
underwriters acting on their behalf to
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discontinue) the disposition of Registrable Bonds pursuant to the
registration statement applicable to such Registrable Bonds until such
holder (i) shall have received copies of such amended or supplemented
prospectus and, if so directed by the Company, such holder shall deliver to
the Company (at the Company's expense) all copies, other than permanent
file copies, then in such holder's possession of the prospectus covering
such Registrable Bonds at the time of receipt of such notice or (ii) shall
have received notice from the Company that the disposition of Registrable
Bonds pursuant to the Shelf Registration Statement may continue.
(d) The Company may require each holder of Registrable Bonds as to
which any registration pursuant to Section 2(b) is being effected to
furnish to the Company such information regarding such holder and such
holder's intended method of distribution of such Registrable Bonds as the
Company may from time to time reasonably request in writing, but only to
the extent that such information is required in order to comply with the
Securities Act. Each such holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such holder to the Company or of the occurrence of any event
in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material
fact regarding such holder or such holder's intended method of disposition
of such Registrable Bonds or omits to state any material fact regarding
such holder or such holder's intended method of disposition of such
Registrable Bonds required to be stated therein or necessary to make the
statements therein not misleading, and promptly to furnish to the Company
any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not
contain, with respect to such holder or the disposition of such Registrable
Bonds, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(e) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "Affiliates" to resell any
of the Bonds that have been reacquired by any of them except pursuant to an
effective registration statement under the Securities Act.
(f) In connection with the Company's obligations with respect to the
registration of Exchange Bonds as contemplated by Section 2(a), if
applicable, the Company shall, as soon as reasonably practicable (or as
otherwise specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness thereof for the periods and purposes contemplated in
Section
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2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of the Exchange Offer Registration Statement, and promptly
provide each broker-dealer holding Exchange Bonds with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, as
such broker-dealer reasonably may request for use in connection with
resales of Exchange Bonds;
(ii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in the Exchange Offer
Registration Statement, and confirm such advice in writing, (A) when
any prospectus amendment or supplement or post effective amendment to
the Exchange Offer Registration Statement has been filed, and, with
respect to any post-effective amendment to the Exchange Offer
Registration Statement, when the same has become effective, (B) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Exchange Offer Registration Statement or the
initiation or threatening of any proceedings for that purpose, (C) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Exchange Bonds for sale in any
United States jurisdiction or the initiation or threatening in writing
of any proceeding for such purpose, or (D) at any time when a
prospectus is required to be delivered under the Securities Act, if
the Exchange Offer Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act;
(iii) in the event that the Company would be required, pursuant
to Section 3(f)(ii)(D), to notify any broker-dealers holding Exchange
Bonds, promptly prepare and furnish to each such holder a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Bonds, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act or
notify such broker-dealers that the offer and sale of Exchange Bonds
pursuant to the Exchange Offer Registration Statement may continue;
(iv) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Exchange Offer
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
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(v) use its reasonable best efforts to register or qualify the
Exchange Bonds under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, PROVIDED, HOWEVER, that the
Company shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this Section
3(f)(v), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its Amended Articles of
Consolidation or by-laws or any agreement between it and its
stockholders; and
(vi) make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective date
of such registration statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company, such obligation shall be
subject to the provision of such information by such party; provided that the
Company shall use its reasonable best efforts to obtain the necessary
information from any party responsible for providing such information.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Bonds or Exchange Bonds for offering
and sale under the State securities and blue sky laws referred to in Section
3(b)(x) and Section 3(f)(v) hereof, including reasonable fees and disbursements
of one counsel for the placement or sales agent or underwriters, if any, in
connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the certificates representing the Bonds and all other documents
relating hereto, (d) fees and expenses of the Trustee under the Indenture, and
of any escrow agent or custodian, (e) internal expenses (including all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), (f) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance) and (g) reasonable fees, disbursements and expenses
of one counsel for the holders of Registrable Bonds retained in connection with
a Shelf
13
Registration Statement, as selected by the holders of at least a majority in
aggregate principal amount of the Registrable Bonds being registered and
approved by the Company, and fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "REGISTRATION EXPENSES"). To the extent
that any Registration Expenses are incurred, assumed or paid by any holder of
Registrable Bonds or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
documented request therefor. Notwithstanding the foregoing, the holders of the
Registrable Bonds being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Bonds and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Bonds that:
(a) Each registration statement covering Registrable Bonds and each
prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(f) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Bonds, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances under
which they were made; and at all times subsequent to the Effective Time
when a prospectus would be required to be delivered under the Securities
Act, other than from such time as a notice has been given to holders of
Registrable Bonds pursuant to Section 3(b)(vi)(D) or Section 3(f)(ii)(D)
hereof until such time as the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(c) or Section 3(f)(iii) hereof or such
time as the Company provides notice that offers and sales pursuant to the
Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, may continue, each such registration statement, and
each prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(b) or Section 3(f) hereof, as then amended
or supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or
14
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of a holder of
Registrable Bonds expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective or
are or were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made, PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by a holder of Registrable Bonds expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not contravene any provision of applicable law or the Amended Articles of
Consolidation or by-laws of the Company or, except to the extent that any
such contravention would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, any indenture or instrument
relating to indebtedness for money borrowed or any agreement to which the
Company is a party or any order, rule, regulation or decree of any court or
governmental agency or authority located in the United States having
jurisdiction over the Company or any property of the Company; and, to the
best knowledge of the Company, no consent, authorization or order of, or
filing or registration with, any court or governmental agency or authority
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except the Order (as defined in the
Purchase Agreement), the registration under the Securities Act contemplated
hereby, qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under State securities or blue sky laws.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
15
6. INDEMNIFICATION
(a) The Company will indemnify and hold harmless each Holder of the
Registrable Bonds included in a Registration Statement, and each person who
is named in such Registration Statement or a supplement thereto as a
placement or sales agent or as an underwriter (each a "PARTICIPATING
BROKER-DEALER") in any offering or sale of such Registrable Bonds and each
person who controls any such person (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, 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 Bonds) to which each 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 Statement, 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, in the light of the circumstances under which they were
made, not misleading, and shall reimburse, as incurred, the Indemnified
Parties 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) the
Company shall not be liable in any such case to the extent that such loss,
claim, damage, liability or action 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 Statement in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Indemnified Party or any Affiliate thereof specifically 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 Bonds
concerned (or any Affiliate of such Holder or Participating Broker-Dealer),
to the extent that a prospectus relating to such Registrable Bonds 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 or any Affiliate thereof 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 Bonds to such person, a copy of the final
prospectus if the
16
Company 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 the Company may
otherwise have to such Indemnified Party.
(b) Each Holder of the Registrable Bonds and Participating
Broker-Dealer, severally and not jointly, will indemnify and hold harmless
the Company and each person, if any, who controls the Company 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 the Company 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 Statement, 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, in the light of the
circumstances under which they were made, not misleading, but in each case
only to the extent that the untrue statement or omission or alleged untrue
statement or alleged omission was made in reliance upon and in conformity
with written information pertaining to such Holder or Participating
Broker-Dealer, as the case may be, and furnished to the Company by or on
behalf of such Holder or Participating Broker-Dealer, as the case may be,
specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company
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 or Participating Broker-Dealer, as the case may be, may otherwise
have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
6 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 6, notify the indemnifying party in writing 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 the indemnification obligation provided in
paragraph (a) or (b) above. 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
17
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party (which consent shall not
be unreasonably withheld), 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 6 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof.
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 failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (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 (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other
from the exchange of the Registrable Bonds, pursuant to the transactions
contemplated by the applicable Registration Statement or prospectus, or
(ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the 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 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 the
Company on the one hand or such Holder, Participating Broker-Dealer, or
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 untrue 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 6(d), the Holders of the Registrable Bonds shall
not be required to contribute any
18
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Registrable Bonds 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 the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 6 shall survive the sale
of the Registrable Bonds 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.
7. RULE 144.
The Company covenants to the holders of Registrable Bonds that the Company
shall use its reasonable best efforts to timely file the reports required to be
filed by it under the Exchange Act or the Securities Act, all to the extent
required from time to time to enable such holder to sell Registrable Bonds
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144. Upon the request of any holder of Registrable
Bonds in connection with that holder's sale pursuant to Rule 144, the Company
shall deliver to such holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company to register any of its securities under
any section of the Exchange Act.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Bonds which would be
inconsistent with the terms contained in this Agreement.
(b) NOTICES. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 0000 Xxxx
00
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attn: Treasurer; if to an Initial
Purchaser, to it at the address for the Initial Purchasers set forth in the
Purchase Agreement; and if to a holder, to the address of such holder set
forth in the security register or other records of the Company or to such
other address as the Company or any such holder may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(c) PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto.
In the event that any transferee of any holder of Registrable Bonds shall
acquire Registrable Bonds, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto for all
purposes and such Registrable Bonds shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Bonds
such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by and to perform, all of
the applicable terms and provisions of this Agreement.
(d) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Registrable Bonds, any director,
officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of
the foregoing, and shall survive delivery of and payment for the
Registrable Bonds pursuant to the Purchase Agreement and the transfer and
registration of Registrable Bonds by such holder and the consummation of an
Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
(f) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
20
(g) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein (including the Indenture) or delivered pursuant
hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least a
majority in aggregate principal amount of the Registrable Bonds at the time
outstanding. Each holder of any Registrable Bonds at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to
this Section 8(g), whether or not any notice, writing or marking indicating
such amendment or waiver appears on such Registrable Bonds or is delivered
to such holder.
(h) INSPECTION. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the
holders of Registrable Bonds shall be made available for inspection and
copying on any business day by any holder of Registrable Bonds for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Bonds under the Bonds, the Indenture and this
Agreement) at the offices of the Company at the address thereof set forth
in Section 8(b) above, or at the office of the Trustee under the Indenture.
(i) COUNTERPARTS. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
(j) REMEDIES. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Bonds, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement; PROVIDED that the sole damages payable for a
violation of the terms of this Agreement for which liquidated damages are
expressly provided pursuant to Section 2(c) hereof shall be such liquidated
damages. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of
the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
21
(k) SUCCESSORS AND ASSIGNS. Any person who purchases any Registrable
Bonds from an Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchaser. This Agreement
shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties and shall inure to the benefit of and be
binding upon each Holder of any Registrable Bonds.
(l) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to
be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, illegal, void or unenforceable.
(m) ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
(n) FURTHER ASSURANCES. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action,
do or cause to be done all things reasonably necessary, proper or advisable
under applicable law, and execute and deliver such documents and other
papers, as may be required to carry out the provisions of this Agreement
and the other documents contemplated hereby and consummate and make
effective the transactions contemplated hereby.
(o) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except
for any liabilities or obligations under Sections 4 or 5 hereof and the
obligations to make payments of and provide for liquidated damages under
Section 2(c) hereof to the extent such damages accrue prior to the end of
the Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
22
Agreed to and accepted as of the date referred to above.
PSI ENERGY, INC.
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
ABN AMRO ROTHSCHILD LLC
X.X. XXXXXX SECURITIES INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXXX XXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
23
