EXHIBIT 1
PPL CORPORATION
SALES AGENCY AGREEMENT
COMMON STOCK, PAR VALUE $0.01 PER SHARE
November 21, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
PPL Corporation, a Pennsylvania corporation (the "Company"), hereby
confirms its agreement with Xxxxxxx Xxxxx Barney Inc. (the "Agent") as follows:
1. Issuance and Sale of Common Stock. The Company has authorized by
appropriate corporate action and proposes to issue and sell in the manner
contemplated by this Agreement shares (the "Shares") of its Common Stock, par
value $0.01 per share (the "Common Stock"), with a market value of up to
$40,000,000. Subject to the terms and conditions stated in this Agreement, the
Company hereby (a) appoints the Agent as its exclusive sales agent for the
purpose of soliciting purchases of the Shares from the Company by others and (b)
agrees that whenever it determines to sell Shares directly to the Agent as
principal for resale to others, it will enter into a Terms Agreement (as defined
in Section 2(b) hereof) with the Agent relating to such sale in accordance with
Section 2(b) hereof.
2. Solicitations as Agent; Purchases as Principal. (a) Solicitations as
Agent. (i) On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, the Agent agrees, as
an agent of the Company, to use its reasonable best efforts to solicit offers to
purchase the Shares. The Agent and the Company agree that such solicitations,
and offers for the sale of the Shares, shall commence upon receipt of, and shall
be made in accordance with, written instructions from the Company to the Agent
(which may take the form of an exchange of any standard form of written
telecommunication between the Agent and the Company) and shall continue until
such time as the Company has instructed the Agent that such solicitations and
offers shall be suspended in accordance with Section 8 hereof. The Company
reserves the right, in its sole discretion, to instruct the Agent, at any time
and from time to time after the Commencement Date (as defined in Section 7
hereof), to so commence or suspend such solicitations and offers for any period
of time or permanently in accordance with the provisions of this Agreement.
(ii) In soliciting purchases of the Shares from the Company by others
(including customers of the Agent), the Agent will be acting for the Company and
not as
principal. The Agent, as the exclusive agent for the offer and sale of the
Shares, will use its reasonable best efforts to sell the Shares on behalf
of the Company as contemplated hereby; provided, however, that it is
understood by the Company that the Agent has no obligation to guarantee
purchases of Shares and that the Agent in its sole discretion upon notice
thereof to the Company, may suspend from time to time its efforts in
offering for sale, and soliciting purchases of, the Shares; provided,
however, that such suspension shall not affect or impair the parties'
respective obligations with respect to Shares sold hereunder prior to
giving such notice. The Agent shall provide written confirmation to the
Company following the close of trading on the NYSE each day in which Shares
are sold under this Agreement setting forth the number of Shares sold on
such day, the proceeds to the Company net of any amounts paid or incurred
pursuant to Section 3(a) hereof and the commissions payable by the Company
to the Agent with respect to such sales. In any transaction where the Agent
has acted as agent for the Company and has not purchased as principal, the
Agent will use its reasonable best efforts to obtain performance by each
purchaser of Shares from the Company, but the Agent will not have liability
to the Company in the event any such purchase is not consummated for any
reason except as may be otherwise provided by any applicable regulations
and rules of the Exchanges (as defined in Section 3(a)(i) hereof) on which
the transaction was executed and except that the Agent will complete the
purchase in accordance with the customs of the Exchanges in the case of
transactions in which the Agent has also acted as broker for the purchaser.
The Company also understands that under no circumstances shall the Agent be
obligated to purchase any Shares for its own account, except (1) pursuant
to a Terms Agreement, (2) as provided in the preceding sentence and (3) to
the extent that the Agent has acted as a principal in purchasing a portion
of a block as contemplated by Section 3(a)(ii) hereof, or has made a firm
commitment with the Company in connection with an offering or distribution
of the type contemplated by Section 3(a)(iii) hereof that has been
expressly authorized by the Company and agreed to by the Agent.
(b) Purchases as Principal. Each sale of Shares to the Agent
as principal for resale to others shall be made in accordance with the terms of
this Agreement and, except for purchases made in accordance with the customs of
the Exchanges in the case of transactions in which the Agent has also acted as
broker for a purchaser and in the case of transactions permitted by Section
3(a)(ii) hereof, a separate agreement that will provide for the sale of such
Shares to, and the purchase and reoffering thereof by, the Agent. Each such
separate agreement (which shall contain terms and conditions to be agreed upon
by the Company and Agent at the time of any such transaction and which may take
the form of an exchange of any standard form of written telecommunication
between the Agent and the Company) is herein referred to as a "Terms Agreement".
The Agent's commitment to purchase Shares pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and conditions
herein set forth. Unless expressly authorized by the Company in the Terms
Agreement, or as otherwise provided herein, the Agent will not be authorized to
utilize a selling or dealer group in connection with the resale of the Shares
purchased. Such Terms Agreement shall also specify the requirements for the
opinions of counsel, comfort letter and officer's certificate pursuant to
Sections 7(b), 7(c), 7(d) and 7(e), respectively, hereof.
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3. Manner of Offer and Sale. (a) Method of Offer and Sale. The Shares
may be offered and sold by any of the following methods:
(i) Ordinary Brokers' Transactions. The Shares may be offered and sold
by the Agent in ordinary regular-way transactions in the auction market on the
floor of the New York Stock Exchange (the "NYSE") or any other stock exchange on
which the Common Stock may be listed or admitted to trading (the NYSE, together
with such other stock exchanges, the "Exchanges").
(ii) Block Transactions. The Agent may solicit offers to purchase
Shares and offer Shares for sale in transactions on the Exchanges in "crosses"
of blocks where the Agent acts as broker for the buyers in addition to acting as
agent for the Company. It is understood that on occasion the Agent may also act
as a principal and purchase for its own account, with the prior written consent
of the Company, a portion of the Shares being sold in the cross of a block. The
Agent may also offer and sell Shares in block transactions on the Exchanges in
which other broker-dealers are acting as brokers for all or some of the buyers
of the Shares being sold in such transactions. The Agent may also sell Shares in
block transactions to one or more broker-dealers purchasing such Shares, or a
portion of such Shares, as principal for their own account, with the prior
written consent of the Company. Any of the transactions contemplated by this
Section 3(a)(ii) may be executed in the over-the-counter market, with
broker-dealers who are not members of the Exchanges or otherwise; provided that
the Agent has obtained any necessary permission from officials of the Exchanges
or such transactions are otherwise in compliance with the rules of the
Exchanges.
(iii) Fixed Price Offerings. With the prior written authorization of
the Company, and any necessary permission from officials of the Exchanges, the
Agent may conduct fixed price offerings off the floor of the Exchanges, in which
the Agent, has committed to purchase as principal the Shares involved in such
offerings and dealers selected by the Agent participate in the resale of such
Shares. With the prior written authorization of the Company, the Agent may also
conduct "special offerings" or "exchange distributions" of Shares on the NYSE in
accordance with Rule 391 and Rule 392, respectively, of the NYSE or on any one
or more of the other Exchanges in accordance with the appropriate rules of such
other Exchanges. It is understood that the terms of "fixed price offerings,"
"special offerings" and "exchange distributions" contemplated by this Section
3(a)(iii) will in each case be subject to the prior written approval of the
Company.
(b) Market Prices. The Company understands that sales of shares will be
made at market prices prevailing at the time of sale in the case of transactions
on the Exchanges and at prices negotiated by the Agent and related to prevailing
market prices in the case of over-the-counter transactions; provided, however,
that the price per share to be paid to the Company for the Shares shall be in
compliance with the terms of this Agreement and, provided, further, that the
Company shall not authorize the issuance and sale of, and the Agent shall not
sell, any Shares at a price lower than the minimum price therefor designated
from time to time by the Company's Executive Vice President and Chief Financial
Officer or the Vice President-Finance and Treasurer and communicated to the
Agent in writing.
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(c) Discounts, Commissions, Concessions, Etc. The Company will (i) pay
to the Agent, on each Settlement Date (as defined in Section 4) in respect of
the sale of any Shares solicited by the Agent, in same day funds, commissions
for its services in acting as agent for the Company in the sale of such Shares
in an amount per share to be negotiated for the types of transactions involved
(but not, in any event, to exceed an amount per share designated from time to
time by the Company's Executive Vice President and Chief Financial Officer or
the Vice President-Finance and Treasurer and communicated to the Agent in
writing) (it being understood that the Company and the Agent may agree upon
payment for such commissions in such other manner as they may determine) and
(ii) pay the reasonable fees and expenses of Xxxxxxxx & Xxxxxxxx ("Counsel for
the Agent") in connection with the offer and sale of the Shares pursuant to
Section 2(a) hereof. Discounts, commissions, concessions, the offering price and
other terms of offerings or distributions referred to in Sections 2(b) and 3(a)
hereof will be agreed upon by the Company and the Agent prior to any such
offering or distribution. The Company understands and agrees that, in any sale
of Shares where the Agent is also acting as broker for a buyer of Shares, the
Agent may also receive a brokerage commission from the buyer in any amount
negotiated by the Agent and such buyer.
(d) Authorized Actions. The Company agrees that, concurrently with the
offer and sale of Shares on behalf of the Company as contemplated by this
Agreement, the Agent may (i) act as broker for the sale of shares of Common
Stock by customers other than the Company, (ii) to the extent permitted by the
rules and regulations of the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934 (the "Exchange Act"),
solicit the sale of shares of Common Stock by customers other than the Company
through the Agent as broker for the seller, solicit the sale of shares of Common
Stock by customers other than the Company to the Agent as principal and solicit
offers to purchase shares of Common Stock and (iii) offer and sell as principal
for its own account Shares that the Agent has purchased from the Company as
contemplated by Sections 2(b) and 3(a)(ii) or shares of Common Stock that the
Agent has otherwise acquired in transactions permitted by this Agreement.
(e) Compliance with Laws and Regulations. The Agent agrees that in
carrying out the transactions contemplated by this Agreement, it will observe
and comply with (i) all applicable securities laws, regulations, rules and
ordinances of any jurisdiction in which the Shares may be offered, sold or
delivered and (ii) all applicable regulations and rules of the Exchanges on
which such transactions are executed.
4. Delivery of Shares. Delivery of Shares sold in transactions of the
types referred to in Section 3(a) hereof will take place through the book-entry
processing of the Depository Trust Company ("DTC") deposit withdrawal at
custodian ("DWAC") system on the date that is three Business Days (as defined
below) after the "trade date" for the sale of such Shares, against delivery to
the Company in same day funds of the purchase price for such Shares; provided,
however, that the Company and the Agent may agree upon delivery of and payment
for Shares sold in particular transactions at such other time and place and in
such other manner as they may determine. The date of delivery to the Agent of
Shares sold against delivery to the Company of funds in payment therefor is
herein called the "Settlement Date." Delivery of Shares and payment for Shares
sold pursuant to a Terms Agreement shall be made in accordance with such Terms
Agreement. Except as may be otherwise determined by the NYSE, "Business Day" as
used in this Agreement means any day on which the NYSE is open for business
other than any
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such day on which banking institutions in New York City are authorized or
obligated by law to close.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Agent that:
(a) Filing of Registration Statement with Commission. A registration
statement on Form S-3 (File Nos. 333-85716, 000-00000-00 and 333-85716-02)
relating to the Shares, including a prospectus, has been filed with the
Commission under the Securities Act of 1933 (the "Securities Act"), in
accordance with Rule 415 of the published rules and regulations of the
Commission (the "Regulations") under the Securities Act. Such registration
statement has been declared effective by the Commission. References in this
Agreement to the "Registration Statement" at a particular time are to such
registration statement, as it may have been amended or supplemented at such
time, including all exhibits thereto and all documents that at such time are
incorporated by reference therein. References in this Agreement to the
"Prospectus" at a particular time are to the form of preliminary prospectus
filed as a part of the Registration Statement at such time and, thereafter, to
the prospectus first filed with the Commission pursuant to Rule 424(b) of the
Regulations under the Securities Act, as it may have been amended or
supplemented at such time, including all documents that at such time are
incorporated by reference therein.
(b) Registration Statement; Prospectus and Incorporated Documents. (i)
The Registration Statement, at the date of this Agreement and any applicable
Terms Agreement and at the Commencement Date, as it may be amended or
supplemented at each such time, complies and will comply, as the case stay be,
in all material respects with the Securities Act and the Regulations thereunder;
the Prospectus, at the date of this Agreement and any applicable Terms
Agreement, at the date it is first filed pursuant to Rule 424(b) of the
Regulations under the Securities Act and at the Commencement Date, as it may be
amended or supplemented at each such time, complies and will comply, as the case
may be, in all material respects with the Securities Act and the Regulations
thereunder; (ii) the Registration Statement at the date of this Agreement and
any applicable Terms Agreement and at the Commencement Date, as it may be
amended or supplemented at each such time, does not and will not, as the case
may be, 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; the Prospectus, at the date of this Agreement and any
applicable Terms Agreement, at the date it is first filed pursuant to Rule
424(b) of the Regulations under the Securities Act and at the Commencement Date,
as it may be amended or supplemented at each such time, does not and will not,
as the case may be, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that these representations and warranties do not apply to statements or
omissions in such documents, based upon information furnished to the Company in
writing by the Agent expressly for use therein; and (iii) the documents
incorporated by reference in the Registration Statement or the Prospectus
pursuant to Item 12 of Form S-3 of the Securities Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act and the Regulations thereunder.
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6. Covenants of the Company. The Company covenants and agrees that:
(a) Filing of Prospectus with Commission; No Stop Order. The
Company will cause the Prospectus relating to the Shares, and any amendments or
supplements thereto, to be filed with, or transmitted for filing to, the
Commission in accordance with Rule 424(b) of the Regulations under the
Securities Act and will notify the Agent immediately, and confirm such notice in
writing, of the issuance by the Commission of any stop order under the
Securities Act suspending the effectiveness of the Registration Statement or of
the initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance by the Commission of any stop order
and, if any such stop order shall at any time be issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Amendments and Supplements. From the time solicitation
regarding sale of the Shares is begun until all of the Shares have been sold (i)
the Company will advise the Agent promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus relating to the Shares
by means of a post-effective amendment, sticker, or supplement (including a
prospectus filed pursuant to Rule 424(b) of the Regulations under the Securities
Act that differs from the Prospectus relating to the Shares first filed pursuant
to such Rule 424(b) but excepting post-effective amendments, supplements, and
stickers relating solely to pricing, if any, and incorporation of document(s) by
reference into the Registration Statement or the Prospectus relating to the
Shares); (ii) the Company will afford the Agent a reasonable opportunity to
comment on any such proposed post-effective amendment, sticker or supplement;
and (iii) the Company will advise the Agent of the filing of any such
post-effective amendment, sticker or supplement.
(c) Copies of Registration Statement and Prospectus. The
Company will promptly furnish to the Agent a copy of the Registration Statement
as originally filed, including documents incorporated by reference, and of all
amendments thereto, heretofore or hereafter made, including any post-effective
amendment thereto (in each case including all exhibits filed therewith not
previously furnished), including copies of each consent and certificate included
therein or filed as an exhibit thereto. The Company will furnish to the Agent
from time to time during the period when the Prospectus relating to the Shares
is required to be delivered under the Securities Act copies of the Prospectus
relating to the Shares (including any amendments or supplements thereto), as the
Agent may reasonably request for the purposes contemplated by the Securities Act
and the Regulations thereunder. The Company shall be deemed to have complied
with this Section 6(c) upon filing all documents required under this Section
6(c) with the Commission via the Electronic Data Gathering, Analysis and
Retrieval System (XXXXX); provided that the Company shall furnish the Agent with
a copy of all documents required under this Section 6(c) not previously
furnished prior to filing such documents with the Commission.
(d) Compliance with the Securities Act. During the period when
the Prospectus relating to the Shares is required to be delivered under the
Securities Act, the Company will comply so far as it is able, and at its own
expense, with all requirements imposed upon it by the Securities Act and by the
Regulations thereunder, so far as necessary to permit the continuance of sales
of or dealing in the Shares during such period in accordance with the provisions
hereof and the Prospectus.
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(e) Changes of Material Fact. If the Company determines that
any event relating to or affecting the Company shall occur as a result of which
it is necessary to amend or supplement the Prospectus (as it may be amended or
supplemented at such time) in order to make the Prospectus (as it may be amended
or supplemented at such time) not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company will forthwith
(i) notify the Agent to suspend solicitations of offers to purchase, and offers
for the sale of, the Shares (and, if so notified by the Company, the Agent shall
forthwith suspend such solicitations and offers and cease using the Prospectus
as supplemented or amended) and (ii) prepare and furnish to the Agent, without
expense to the Agent (unless any misstatements or omissions in the Prospectus
were made solely in reliance on written information relating to the Agent
furnished to the Company by the Agent expressly for use therein, in which case,
at the sole expense of the Agent), a reasonable number of copies of an amendment
or amendments or a supplement or supplements to the Prospectus (as it may be
amended or supplemented at such time) that will amend or supplement the
Prospectus (as it may be amended or supplemented at such time) so that as
amended or supplemented it will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time the Prospectus
(as so amended or supplemented) is delivered to a purchaser, not misleading.
(f) Earnings Statement. As soon as reasonably practicable
after the end of the 12-month period beginning at the end of the fiscal quarter
of the Company in which the Commencement Date occurs, the Company will make
generally available to its security holders an earnings statement (which need
not be audited) covering such 12-month period which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 of the Regulations.
(g) Blue Sky Qualification. During the period when the
Prospectus relating to the Shares is required to be delivered under the Act, the
Company will use its reasonable best efforts to qualify the Shares for offer and
sale under the blue sky laws of such jurisdictions as the Agent may reasonably
designate, and will file and make in each year such statements or reports as are
or may be reasonably required by the laws of such jurisdictions; provided,
however, that the Company shall not be required to (i) qualify as a foreign
corporation or dealer in securities, (ii) file any consents to service of
process under the laws of any jurisdiction or (iii) meet any other requirement
in connection with this paragraph (g) deemed by the Company to be unduly
burdensome.
(h) Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement or any applicable Terms
Agreement is terminated, the Company will pay all expenses incident to the
performance of its obligations under this Agreement or such Terms Agreement,
including (i) the preparation, printing and filing of this Agreement, such Terms
Agreement, the Registration Statement as originally filed and any amendments or
supplements thereto, the preliminary prospectuses filed as a part thereof, the
Prospectus and any amendments and supplements thereto and any documents
incorporated by reference therein and, in each case, the exhibits thereto, in
each case in quantities as reasonably required by the Agent under this
Agreement, (ii) the issue and delivery of the Shares as provided in Section 4
hereof, (iii) the fees and expenses of the Company's accountants, (iv) the
expenses in connection with the qualification of the Shares under securities
laws in accordance with the provisions of Section 6(g) hereof, including filing
fees and the fees and disbursements of
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Counsel for the Agent in connection therewith and in connection with the
preparation of any Blue Sky Survey, (v) the reasonable fees and expenses of
Counsel for the Agent, (vi) the commissions and amounts payable in accordance
with Section 3(c) hereof and (vii) any reasonable advertising and other
out-of-pocket expenses of the Agent incurred with the prior written approval of
the Company. The Company shall not in any event be liable to the Agent for
damages on account of the loss of anticipated profits.
7. Conditions of Agent's Obligations. The obligation of the Agent to
solicit offers to purchase the Shares as agent of the Company, the obligation of
any purchaser of Shares sold through the Agent as agent and the obligation of
the Agent to purchase Shares pursuant to any Terms Agreement shall be subject at
10:00 A.M., New York City time, on November 21, 2002, or at such later time and
date as the Agent and the Company may agree upon (the "Commencement Date"), and
at all times thereafter, to the accuracy in all material respects of the
representations and warranties on the part of that Company herein contained and
to the accuracy of the statements of she Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein contained and
to the following additional conditions precedent:
(a) Filing of Prospectus with Commission; No Stop Order;
Regulatory Approvals. The Prospectus and any amendments or supplements thereto,
shall have been filed with, or transmitted for filing to, the Commission in
accordance with Rule 424(b) of the Regulations under the Securities Act; no stop
order with respect to the effectiveness of the Registration Statement shall have
been issued under the Securities Act by the Commission; and no proceedings
therefor shall have been instituted or, to the knowledge of the Company,
threatened by the Commission.
(b) Opinions of Counsel to the Company. On the Commencement
Date and, if specified in any Terms Agreement, on the Settlement Date therefor,
the Agent shall have received the following opinions dated as of the
Commencement Date or such Settlement Date, as the case may be:
(i) Opinion of Xxxxxxx X. XxXxxxx, Esq., Senior Counsel of the
Company, or Xxxxxx X. Xxxxx, Esq., Senior Counsel of the Company, or
such other counsel reasonably satisfactory to the Agent, to the
following effect:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
law of the Commonwealth of Pennsylvania with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(B) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information required to be shown. It is understood
that such counsel need express no opinion as to the financial
statements and other financial data contained in the
Registration Statement or the Prospectus;
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(C) This Agreement or such Terms Agreement, as the
case may be, has been duly authorized, executed and delivered
by the Company;
(D) All legally required proceedings in connection
with the authorization and issue of the Shares and the sale of
the Shares by the Company in the manner set forth herein have
been had and remain in effect, and all requisite action of
public boards or bodies (other than in connection or in
compliance with the provisions of the securities or Blue Sky
laws of any jurisdiction) as may be legally required with
respect to all or any of such matters or related thereto has
been taken and remains in effect, and the Company is exempt
from the provisions of the Public Utility Holding Company Act
of 1935 applicable to it as a holding company and with respect
to such authorization, issue and sale;
(E) Such counsel does not know of any legal or
governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described
as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required. It is
understood that such counsel need express no opinion as to the
financial statements and other financial data contained in the
Registration Statement or the Prospectus; and
(F) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement will not contravene (i) the articles of
incorporation or by-laws of the Company, or (ii) to the best
of such counsel's knowledge, any indenture, bank loan or
credit agreement or other evidence of indebtedness binding
upon the Company or any of its subsidiaries or any agreement
or other instrument binding upon the Company or any of its
subsidiaries that, in the case of any such agreement specified
in this clause (ii) is material to the Company and its
subsidiaries, taken as a whole, or (iii) to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary;
(G) The authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(H) The shares of Common Stock outstanding prior to
the issuance of the Shares have been duly authorized and are
validly issued, fully paid and non-assessable and are not
subject to any preemptive or similar rights; and
(I) The Shares have been duly authorized and conform
to the description thereof contained in the Prospectus, and,
when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights.
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(ii) Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, or such other
outside counsel to the Company reasonably satisfactory to the Agent, to
the following effect:
(A) The Shares have been duly authorized by the
Company and, upon payment and delivery in accordance with this
Agreement, the Shares will be validly issued, fully paid and
non-assessable;
(B) The statements relating to legal matters and
documents included in the Prospectus, as supplemented by the
Prospectus Supplement, under the caption "Description of PPL
Corporation's Capital Stock" fairly summarize in all material
respects such matters or documents;
(C) This Agreement or such Terms Agreement, as the
case may be, has been duly authorized, executed and delivered
by the Company;
(D) No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York governmental agency or body or, to such counsel's
knowledge, any federal or New York court is required for the
issue and sale of the Shares by the Company and the compliance
by the Company with all of the provisions of this Agreement,
except for the registration under the Securities Act of the
Shares, and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Agent;
(E) The Registration Statement has become effective
under the Securities Act and the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under
the Securities Act specified in such opinion on the date
specified therein, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or
threatened by the Commission. The Registration Statement, as
of its effective date, and any amendment or supplement
thereto, as of its date, and the Prospectus, as of the date of
this Agreement, and any amendment or supplement thereto, as of
its date, complied as to form in all material respects with
the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Such
counsel has no reason to believe that the Registration
Statement, as of its effective date, or any such amendment or
supplement, as of its date, contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, as
of the date of this Agreement and as of the Commencement Date
or the Settlement Date, as applicable, contained or contains
any untrue statement of a material fact or omitted or omits to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. It is understood that
such counsel need express no belief with respect to the
financial statements and other financial data contained or
incorporated by reference in the Registration Statement or the
Prospectus;
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(F) The issue and sale of the Shares by the Company
and the compliance by the Company with all of the provisions
of this Agreement will not violate any federal or New York
statute or any rule or regulation that has been issued
pursuant to any federal or New York statute;
(G) There are no preemptive or similar rights under
federal or New York law to subscribe for or to purchase any
shares of the Company's capital stock. There are no preemptive
or similar rights to subscribe for or to purchase any shares
of the Company's capital stock pursuant to the Company's
articles of incorporation or by-laws; and
(H) The Company is not, and after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, the Company
will not be, required to register as an "investment company"
as such term is defined in the Investment Company Act of 1940,
as amended.
In rendering the above opinions, counsel for the Company may rely, as
to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials, and any
outside counsel to the Company may rely as to matters governed by
Pennsylvania law upon the opinion of Xxxxxxx X. XxXxxxx, Esq., Xxxxxx
X. Xxxxx, Esq. or such other counsel referred to in paragraph (i)
above. References to the Prospectus in this Section 7(b) include any
amendments or supplements thereto at the date such opinion is rendered.
(c) Opinion of Counsel for the Agent. On the Commencement Date
and, if specified in any Terms Agreement, the Settlement Date therefor, the
Agent shall have received the favorable opinion dated as of the Commencement
Date or such Settlement Date, as the case may be, of counsel for the Agent with
respect to the matters set forth in subparagraphs (ii)(A), (ii)(B), (ii)(C),
(ii)(D) and, the second sentence of (ii)(E) of paragraph (b) of this Section 7,
and with respect to such other matters as the Agent may reasonably require. In
rendering such opinion, such counsel to the Agent may rely, as to the
incorporation of the Company, all other matters governed by the laws of the
State of Pennsylvania and the applicability of the 1935 Act upon the opinion of
Xxxxxxx X. XxXxxxx, Esq., Xxxxxx X. Xxxxx, Esq. or such other counsel referred
to above.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
counsel for the Company, representatives of the independent public
accountants of the Company and representatives of the Agent at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed; and although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and Prospectus (except as to the matters
referred to in their opinion rendered pursuant to subparagraph (ii)(B)
of paragraph (b) of this Section 7), on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of
officers, counsel and other representatives of the Company), no facts
have come to the attention of such counsel which lead such counsel to
believe that either the Registration Statement, as of its effective
date, or the Prospectus, as of the date of this Agreement, and any
amendments or supplements thereto, as of
11
their respective effective or issue dates, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make such statements therein not misleading (it being understood
that such counsel need make no comment with respect to the financial statements
or other financial and statistical data included or incorporated by reference in
the Registration Statement or Prospectus).
(d) Comfort Letter. On the Commencement Date and, if specified
in any Terms Agreement, the Settlement Date therefor, the Agent shall have
received a letter dated as of the Commencement Date or such Settlement Date, as
the case may be, from PricewaterhouseCoopers LLP, or such other independent
public accountants for the Company satisfactory to the Agent, in form and
substance satisfactory to the Agent, to the effect that:
(i) They are independent accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act;
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act with respect to registration
statements on Form S-3;
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(A) Reading the minutes of meetings of the
shareowners and the Board of Directors of the Company and its
Executive, Compensation and Corporate Governance, Finance and
Audit and Corporate Responsibility Committees since the day
after the end of the last audited period as set forth in the
minute books through a specified date not more than five
business days prior to the date of delivery of such letter;
(B) With respect to the unaudited consolidated
balance sheet as of the most recent quarter ended and the
unaudited consolidated statements of income and of cash flows
included in the Company's Quarterly Report on Form 10-Q for
the most recent quarter ended ("Form 10-Q") incorporated by
reference in the Registration Statement,
(1) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited consolidated
balance sheet and the unaudited consolidated
statements of income and of cash flows for the most
recent quarter ended and year to date, and prior year
periods, included in the Company's Form 10-Q
incorporated by reference in the Registration
Statement;
(2) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters as to whether the unaudited
consolidated financial statements referred to in
(B)(i) comply as to
12
form in all material respects with the applicable
accounting requirements of the Exchange Act, as it
applies to Form 10-Q and the related published rules
and regulations thereunder;
(C) Reading the unaudited interim financial data for
the period from the date of the latest balance sheet included
or incorporated in the Registration Statement to the date of
the latest available interim financial data; and
(D) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding the specific items for which representations
are requested below; nothing has come to their attention as a
result of the foregoing procedures that caused them to believe
that (i) the unaudited consolidated financial statements
described in (B)(i), included in the Form 10-Q and
incorporated by reference in the Registration Statement, do
not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the Exchange Act, as it applies to Form 10-Q; or (ii) any
material modifications should be made to the unaudited
consolidated financial statements described in (B)(i),
included in the Form 10-Q and incorporated by reference in the
Registration Statement, for them to be in conformity with
generally accepted accounting principles; or (iii) at the date
of the latest available interim financial data and at a
specified date not more than five business days prior to the
date of delivery of such letter, there was any change in the
common stock, treasury stock or preferred stock (with or
without sinking fund requirements) (except for changes in
shares of certain series of preferred stock of a subsidiary of
the Company redeemed for, purchased or otherwise retired in
anticipation of, sinking fund requirements for such series or
as a result of the surrender by the Company of any preferred
stock of PPL Electric Utilities theretofore purchased by the
Company) or increase in long-term debt of the Company and
subsidiaries consolidated as compared with amounts shown in
the latest balance sheet incorporated by reference in the
Registration Statement, except in all instances for changes,
increases or decreases which the Registration Statement,
including the documents incorporated therein by reference,
discloses have occurred or may occur, or they shall state any
specific changes, increases or decreases.
(iv) The letter shall also state that certain
designated information has been obtained from the Company's
financial statements or accounting records which are subject
to the internal controls of the Company's accounting system or
which has been derived directly from such accounting records
by analysis or computation, is in agreement with such
financial statements, records or computations made therefrom,
except as otherwise specified in such letter.
(e) Certificate as to No Material Adverse Change, Etc. On the
Commencement Date and on each Settlement Date in respect of a Terms Agreement,
there shall not have been, since the date of the most recent financial
statements incorporated by reference in the Prospectus, except as may otherwise
be stated therein or contemplated thereby, any material adverse change in the
financial position or in the financial results of operations of the Company, and
the Agent shall have received a certificate of the Company signed by the
Chairman of the Board, the Chief Executive Officer, the Vice Chairman, the
President, any Vice President or a principal financial
13
or accounting officer of the Company reasonably satisfactory to the Agent, dated
as of the Commencement Date or, if specified in such Terms Agreement, the
Settlement Date therefor, as the case may be, to the effect that to the best of
his or her knowledge after reasonable investigation, and relying on opinions of
counsel to the extent that legal matters are involved, (i) there has been no
such material adverse change, (ii) the representations and warranties contained
in this Agreement are true and correct in all material respects as of the
Commencement Date or such Settlement Date, as the case may be, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement or such Terms Agreement, as the case
may be, on or prior to the Commencement Date or such Settlement Date, as the
case may be, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or, to his or her knowledge, threatened by the Commission.
(f) The Exchanges shall have approved the Shares for listing
upon official notice of issuance.
In case any of the conditions specified above in this Section 7 shall
not have been fulfilled, this Agreement or any applicable Terms Agreement may be
terminated by the Agent upon mailing or delivering written notice thereof to the
Company. Any such termination shall be without liability of either party to the
other party except as otherwise provided in Section 6(h) hereof and except for
any liability under Section 10 hereof.
8. Suspension of Offers and Solicitations. At any time and from time to
time after the Commencement Date (except any such time that the Agent owns any
Shares purchased as principal that are held for resale to others in accordance
with the terms of this Agreement), the Company may in its sole discretion orally
instruct the Agent to suspend solicitations of offers to purchase, and offers
for the sale of, the Shares as provided herein. If at any such time, or at any
time that the Company has otherwise notified the Agent to suspend such
solicitations and offers under this Agreement, there shall be any sales of
Shares by the Company not yet settled outstanding, the Company will promptly
advise the Agent whether such sales may be settled and whether the Prospectus as
then in effect may be delivered in connection with the settlement of such sales.
If the Company determines that such sales may not be settled or that such
Prospectus may not be so delivered, the Agent will use its best efforts to
arrange for the cancellation of such sales, but the Company shall have the sole
responsibility for, and shall hold the Agent harmless from, any losses, claims,
damages or liabilities (and expenses in connection therewith) that may result
from the inability to make settlement of such sales.
9. Additional Covenants of the Company. The Company covenants and
agrees that:
(a) Affirmation of Representations and Warranties. Each
authorization by the Company to the Agent to solicit offers to purchase the
Shares shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement are true and correct at
the time of such authorization, and an undertaking that such representations and
warranties will be true and correct at the time of delivery of and payment for
Shares sold pursuant to such authorization as provided in Section 4 hereof, in
each case as though made at and as of each such time (except that such
representations and warranties shall be
14
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to each such time).
(b) Officer's Certificate. From the time solicitation
regarding the sale of the Shares is begun until all of the Shares have been
sold, each time the Company (i) amends or supplements the Registration Statement
or the Prospectus relating to the Shares (other than in reference solely to
prices of Shares) by means of a post-effective amendment, sticker, or supplement
but not by means of incorporation of document(s) by reference to the
Registration Statement or the Prospectus relating to the Shares; (ii) files an
annual report, on Form 10-K under the Exchange Act; (iii) files its quarterly
reports on Form 10-Q under the Exchange Act; and (iv) files a report on Form 8-K
under the Exchange Act (the date of filing each of the aforementioned documents
is referred to as a "Representation Date"); the Company shall furnish the Agent
(but in the case of (iv) above only if requested by the Agent and only if such
report contains amended financial information (other than an earnings release))
with a certificate of the Chairman of the Board, the Chief Executive Officer,
the Vice Chairman, President, any Vice President or a principal financial or
accounting officer of the Company, in form satisfactory to the Agent, to the
effect that on the Representation Date, to the best of his or her knowledge
after reasonable investigation and relying upon opinions of counsel to the
extent legal matters are involved, (A) the representations and warranties of the
Company in this Agreement are true and correct in all material respects; (B) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Representation
Dates; (C) no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to his or her knowledge, are threatened by the
Commission; and (D) subsequent to the date of the most recent financial
statements set forth or incorporated by reference in the Prospectus, there has
been no material adverse change in the financial position or in the financial
results of operations of the Company, except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(c) Opinions of Counsel. From the time solicitation regarding
the sales of the Shares is begun until all of the Shares have been sold, at each
Representation Date referred to in Section 9(b)(i), (ii), (iii) and (iv), the
Company shall concurrently furnish the Agent (but in the case of 9(b)(iv) only
if requested by the Agent and only if such report on Form 8-K contains amended
financial information (other than an earnings release)) with a written opinion
or opinions of counsel for the Company, dated the Representation Date or the
date of such filing, in form satisfactory to the Agent, to the effect set forth
in Section 7(b) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as then amended or supplemented;
provided, however, that in lieu of such opinion, counsel may furnish the Agent
with a letter to the effect that the Agent may rely on a prior opinion delivered
under Section 7(b) or this Section 9(c) to the same extent as if it were dated
the date of such letter (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented at such Representation Date).
(d) Comfort Letters. From the time solicitation regarding the
sale of the Shares is begun until all of the Shares have been sold, at each
Representation Date referred to in Section 9(b)(i), (ii), (iii) and (iv), but in
each case only if such documents referred to in Section 9(b) include amended
financial information (other than an earnings release), the Company shall
15
cause PricewaterhouseCoopers LLP, or such other independent public accountants
for the Company reasonably satisfactory to the Agent, concurrently to furnish
the Agent (but in the case of 9(b)(iv) only if requested by the Agent) with a
letter, addressed jointly to the Company and the Agent and dated the
Representation Date or the date of such filing, in form and substance
satisfactory to the Agent, to the effect set forth in Section 7(d) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
or supplemented at such Representation Date, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter,
PricewaterhouseCoopers LLP, or such other independent public accountants for the
Company reasonably satisfactory to the Agent, may limit the scope of such letter
to the unaudited financial statements included in such amendment or supplement
unless there is contained therein any other accounting, financial or statistical
information that, in the reasonable judgment of the Agent, should be covered by
such letter, in which event such letter shall also cover such other information
and procedures as shall be reasonably requested by the Agent.
(e) Prospectus Supplement Filing. The Company covenants and
agrees with the Agent that on or prior to the second business day after the end
of each calendar week during which sales of Shares were made by the Agent (each
such week a "Reporting Period"), the Company will (i) file a prospectus
supplement with the Commission under the applicable paragraph of Rule 424(b)
(each a "Filing Date"), which prospectus supplement will set forth, with regard
to such Reporting Period, the dates included within the Reporting Period, the
amount of Shares sold through the Agent, the net proceeds to the Company and the
compensation payable by the Company to the Agent with respect to sales of Shares
pursuant to this Agreement and (ii) deliver such number of copies of each such
prospectus supplement to the NYSE as are required by such Exchange.
10. Indemnification. (a) Indemnification of the Agent. The Company will
indemnify and hold harmless the Agent, the directors, officers, employees and
agents of the Agent and each person, if any, who controls the Agent within the
meaning of Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or documents incorporated by reference therein
(or any amendment thereto), of the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any related preliminary prospectus, the Prospectus (or any
amendment or supplement thereto) or the documents incorporated by
reference therein, of the omission or alleged omission therefrom of a
material fact necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by the Agent expressly for
use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any
16
amendment or supplement thereto); provided, however, that any such
indemnity with respect to a Prospectus shall not inure to the benefit
of the Agent (or of any person controlling the Agent) on account of any
losses, liabilities, claims or damages arising from the sale of Shares
to any person if any amendments or supplements to such Prospectus shall
have been furnished to the Agent on a timely basis to permit the Agent
to send or give to such person, with or prior to the written
confirmation of such sale, a copy of such amended or supplemented
Prospectus, except the documents incorporated by reference therein, and
the untrue statement or omission of a material fact contained in such
Prospectus and giving rise to such losses, liabilities, claims or
damages was corrected in such amended or supplemented Prospectus
(including the documents incorporated by reference therein);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, commenced or threatened or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, in
investigating, preparing or defending against any litigation, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above.
(b) Indemnification of Company. The Agent agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 10(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice
to each identifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party shall not relieve it from any liability except to the extent that it has
been prejudiced in any material respect by such failure or from any liability
that it may have to such indemnified party otherwise than 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, with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such
17
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 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation unless (1) the indemnified party and the indemnifying
party mutually agree to the retention of such counsel, or (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, in each of
which cases the reasonable fees, disbursement and other charges of counsel will
be at the expense of the indemnifying party.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section 10 for any reason other than as
specified therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses, except to the
extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Shares (taking into account the portion of the proceeds
of the offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
the Agent and such controlling persons agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation (even if the Agent and such controlling persons were treated as one
entity for such purpose). Notwithstanding the provisions of this subsection (d),
no Agent or controlling person shall be required to make contribution hereunder
which in the aggregate exceeds the total public offering price of the Shares
distributed to the public through it pursuant to this Agreement or upon resale
of Shares purchased by it from the Company, less the aggregate amount of any
damages which the Agent or such controlling person has otherwise been required
to pay in respect to the same claim or substantially similar claim. 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.
11. Survival of Representations and Warranties and Agreements. The
indemnity and other agreements of the Company and the Agent contained in
Sections 6(h) and 10 hereof and the representations, warranties and other
statements of the Company set forth in this Agreement or made by the Company
pursuant to this Agreement shall remain in full force and effect, regardless of-
(a) any termination of this Agreement or any Terms Agreement, (b) any
investigation made by or on behalf of the Agent or any of its controlling
persons or by or on behalf of the Company or any of its officers, directors or
controlling persons and (c) acceptance of delivery of and payment for Shares
sold hereunder.
12. Termination. (a) Termination of this Agreement. This Agreement may
be terminated at any time by either party hereto upon the giving of written
notice of such termination to the other party hereto effective at the close of
business on the date such notice is received.
18
(b) Termination of a Terms Agreement. The Agent may, by notice
to the Company, terminate a Terms Agreement if, at any time after the date of
this Agreement and at or prior to the Settlement Date in respect thereof, (i)
there shall have occurred any change or any development involving a prospective
change in or affecting the business or properties of the Company and its
subsidiaries considered as one enterprise that, in the Agent's judgment, is
material and adverse and that makes it, in the Agent's judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus Supplement, (ii) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the Philadelphia Stock Exchange or the National Association of
Securities Dealers, Inc.; (iii) trading of any securities of the Company shall
have been suspended on any Exchange or in any over-the-counter market; (iv) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred; (v) any moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or
(v) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the Agent's
judgment, is material and adverse and which, singly or together with any other
event specified in this clause (v), makes it, in the Agent's reasonable judgment
impracticable and inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectus Supplement.
(c) General. In the event of any termination under Section
12(a) or 12(b) hereof, neither party will have all liability to the other party
hereto, except that (i) the Agent shall be entitled to any commission earned in
accordance with Section 3(c) hereof, (ii) if at the time of termination (A) the
Agent shall own any Shares purchased pursuant to a Terms Agreement with the
intention of reselling them or (B) an offer to purchase any of the Shares has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Shares relating thereto has not occurred, the covenants set forth
in Sections 6 and 9 hereof shall remain in effect until such Shares have been
resold or delivered, as the case may be, and (iii) the covenants set forth in
Sections 6(f) and 6(h) hereof, the indemnity and contribution agreement set
forth in Section 10 hereof and the provisions of Sections 11 and 16 hereof shall
remain in effect.
13. Notices. Except as otherwise specifically provided herein, all
statements, instructions, requests, notices and advances hereunder and under any
applicable Terms Agreement shall be in writing (or by telephone or telefax if
subsequently confirmed in writing), and shall be deemed to have been duly given
if mailed, delivered or transmitted by any standard form of telecommunication to
(a) in the case of the Agent, Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Telefax No.:
000-000-0000, with, in the, case of instructions given by the Company pursuant
to Section 2(a) or 8 hereof, and (b) in the case of the Company, PPL
Corporation, Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Treasurer.
14. Parties. This Agreement and any applicable Terms Agreement shall
inure solely to the benefit of the Company and the Agent and, to the extent
provided in Sections 10 and 11 hereof, to any officer or director of the Company
or to any person who controls the Company or the Agent, and their respective
successors. No other person, partnership, association or-corporation shall
acquire or have any right under or by virtue of this Agreement or any Terms
Agreement. The term "successors" shall not include any purchaser of any Shares
merely because
19
of such purchase. The respective rights and obligations of the Company and the
Agent hereunder may not be assigned, transferred or contracted to another.
15. Arm's Length Dealing. This Agreement and any applicable Terms
Agreement have been negotiated at arm's length between the Agent and the
Company, which regularly issues and sells securities in the public markets
through investment bankers, and the relationship created hereby or thereby is
not intended to be one of customer and member as the term "customer" is used in
the provisions pertaining to the protection of customers of the articles,
bylaws, rules, regulations and policies of the NYSE or the National Association
of Securities Dealers, Inc.
16. Governing Law. This Agreement and any Terms Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
17. Captions. Captions to Sections of this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning of any provisions of this
Agreement.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agent and the Company in accordance with its terms.
Very truly yours.
By: /s/ Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
Title: Vice President-Finance
and Treasurer
Confirmed, accepted and agreed,
as of the date first above written:
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxx Xxxxxx
--------------------
Name: Xxxx Xxxxxx
Title: Director
21
