EXHIBIT 4(A)
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of February 24, 2000
between
DPL INC.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
as Initial Purchaser
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of February 24, 2000 among DPL Inc. (together with its
successors and permitted assigns, "DPL") and CREDIT SUISSE FIRST BOSTON
CORPORATION (together with its successors and permitted assigns, the "Initial
Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
February 24, 2000 (the "Purchase Agreement"), among DPL, as issuer, of the
Senior Notes due March 1, 2007 (the "Notes"), and the Initial Purchaser, which
provides for, among other things, the sale by DPL to the Initial Purchaser of
$425,000,000 principal amount of the Notes. In order to induce the Initial
Purchaser to enter into the Purchase Agreement, DPL has agreed to provide to the
Initial Purchaser, for the benefit of the Initial Purchaser and each other
Holder (as defined below), the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
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hereof.
"Advice" shall have the meaning set forth in the last paragraph of
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Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
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hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday,
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(ii) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Trustee's
principal corporate trust office is closed for business.
"Depositary" shall mean, with respect to Notes and/or Exchange Notes in
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global registered form, The Depository Trust Company, or any other depositary
appointed by DPL; provided, however, that such depositary must have an address
in the Borough of Manhattan, The City of New York.
"DPL" shall have the meaning set forth in the preamble to this
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Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
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hereof.
"Eligible Holder" shall have the meaning set forth in Section 2(a)(i)
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hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended and in effect from time to time.
"Exchange Notes" shall mean the 8.25% Exchange Senior Notes due March
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1, 2007 containing terms identical to the Notes (except that they will not
contain registration rights, will not provide for any Additional Interest to be
payable with respect thereto and will not, unless specifically requested by the
Initial Purchaser in connection with Notes held by the Initial Purchaser,
contain terms with respect to the transfer restrictions under the Securities
Act).
"Exchange Offer" shall mean the offer by DPL to the Holders to exchange
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the Registrable Securities for a like principal amount of Exchange Notes
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
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Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus to be contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
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2(a)(ii)(B) hereof.
"Holder" shall mean the Initial Purchaser, for so long as it owns
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beneficial interests in any Registrable Securities, and each registered holder
or owner of beneficial interests in Registrable Securities.
"Indenture" shall mean the Indenture relating to the Notes and the
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Exchange Notes dated as of March 1, 2000 among DPL, as issuer of the Notes and
the Exchange Notes, and Bank One Trust Company, National Association, as
Trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble of
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this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
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"Issue Date" shall mean the date of original issuance of the Notes.
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"Majority Holders" shall mean the registered holders of a majority of
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the aggregate principal amount of outstanding Notes.
"Notes" shall have the meaning set forth in the preamble to this
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Agreement.
"Notice" shall have the meaning set forth in Section 2(a)(ii)(A)
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hereof.
"Participating Broker-Dealer" shall have the meaning set forth in
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Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
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"Prospectus" shall mean the prospectus to be included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
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of this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
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"Registrable Securities" shall mean the Notes; provided, however, that
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Notes shall cease to be Registrable Securities when (i) a Registration Statement
with respect to the Exchange Notes shall have been declared effective under the
Securities Act and the Notes shall have been exchanged for Exchange Notes
pursuant to such Registration Statement, (ii) the Notes shall have been sold to
the public pursuant to Rule 144(k) under the Securities Act or are permitted to
be resold to the public pursuant to Rule 144(k) under the Securities Act (or any
similar provision allowing for resale to the public then in force), (iii) the
Notes shall have ceased to be outstanding, (iv) the Notes shall have been
exchanged for Exchange Notes upon consummation of the Exchange Offer and are
thereafter freely tradable by the holder thereof (other than an affiliate of
DPL) or (v) two years (or such shorter period as may hereafter be provided in
Rule 144(k) under the Securities Act (or similar rule)) shall have elapsed since
the date of original issuances of the Notes.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by DPL and with this Agreement, including, without
limitation: (i) all SEC or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees; (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Notes or
Registrable Securities) and compliance with the rules of the NASD, in an amount
not exceeding $15,000 in the aggregate, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for DPL, of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, as counsel for the Holders hereunder in
connection with the Exchange Offer, and of the independent certified public
accountants of DPL, including the expenses of any "cold comfort" letters
required by or incident to such performance and compliance, (vi) the fees and
expenses of the Trustee, and any paying agent, exchange agent or custodian,
(vii) all fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities or the Exchange Notes on any securities
exchange or exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by DPL in connection with any Registration Statement.
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"Registration Statement" shall mean any registration statement of DPL
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which covers any of the Exchange Notes or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
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shorter period as may hereafter be provided in Rule 144(k) under the Securities
Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended and
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in effect from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
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2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
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Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of DPL pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Securities, on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended and in
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effect from time to time.
"Trustee" shall mean Bank One Trust Company, National Association and
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any successor thereto, as trustee under the Indenture.
2. Registration under the Securities Act.
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(a) Exchange Offer.
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(i) To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, DPL shall, for the
benefit of the Holders, at DPL's cost, (A) prepare and cause to be
filed with the SEC, not later than 90 days after the Issue Date, an
Exchange Offer Registration Statement on an appropriate form under the
Securities Act covering the Exchange Offer, (B) use its reasonable
best efforts to cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the SEC not later than
the date which is 180 days after the Issue Date, and (C) use its
reasonable best efforts to keep such Exchange Offer Registration
Statement effective for not less than 30 calendar days (or longer if
required by applicable law, and in any event through the Exchange
Period) after the date Notice of the Exchange Offer is mailed to the
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Holders. Upon the effectiveness of the Exchange Offer Registration
Statement, DPL shall promptly commence the Exchange Offer, it being
the objective of such Exchange Offer to enable each Holder so electing
to exchange Registrable Securities for a like principal amount of
Exchange Notes (assuming that such Holder is not an affiliate of DPL
within the meaning of Rule 405 under the Securities Act and is not a
broker-dealer tendering Registrable Securities acquired directly from
DPL for its own account, acquires the Exchange Notes in the ordinary
course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Exchange Offer
for the purpose of distributing the Exchange Notes and is not
otherwise prohibited by any law or policy of the SEC from
participating in the Exchange Offer) (any Holder meeting all such
requirements, hereinafter an "Eligible Holder"), and to transfer such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or
blue sky laws.
(ii) In connection with the Exchange Offer, DPL shall:
(A) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents
(together, the "Notice");
(B) use its reasonable best efforts to keep the Exchange
Offer open for acceptance for a period of not less than 30 days
after the date Notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as
the "Exchange Period");
(C) utilize the services of the Depositary for the Exchange
Offer;
(D) permit Holders to withdraw, at any time prior to the
close of business, New York time, on the last Business Day of the
Exchange Period, any Notes tendered for exchange by sending to
the institution specified in the Notice, a telegram, telex,
facsimile transmission or letter, received before aforesaid time,
setting forth the name of such Holder, the principal amount of
Notes delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Notes exchanged;
(E) notify each Holder by means of the Notice that any Note
not tendered by such Holder in the Exchange Offer will remain
outstanding and continue to accrue interest, but will not retain
any rights under this Agreement (except in the case of the
Initial Purchaser and Participating Broker-Dealers as provided
herein); and
(F) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
(iii) As soon as practicable after the close of the Exchange
Offer, DPL shall:
(A) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange
Offer;
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(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for
exchange by DPL; and
(C) issue, and cause the Trustee to promptly authenticate
and deliver to the Depositary (or if, the Exchange Notes are in
certificated form, each Holder) Exchange Notes equal in principal
amount to the principal amount of the Notes surrendered by such
Holder.
(iv) Interest on each Exchange Note issued pursuant to the
Exchange Offer will accrue from the last date on which interest was
paid on the Note surrendered in exchange therefor or, if no interest
has been paid on such Note, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff of the
SEC, DPL shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC and that each Holder tendering
Notes for exchange shall be an Eligible Holder. Each Holder of
Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Notes in the Exchange Offer will be required
to make certain customary representations in connection therewith,
including representations that (A) it is not an affiliate of DPL, (B)
the Exchange Notes to be received by it were acquired in the ordinary
course of its business and (C) at the time of the Exchange Offer, it
has no arrangement with any person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes. Each
Holder hereby acknowledges and agrees that any Participating
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes: (1) could not
under SEC policy as in effect on the date of this Agreement rely on
the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained based on the representations
in clause (A) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection
with the secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item
507 and 508, as applicable, of Regulation S-K, if the resales are of
Exchange Notes obtained by such Holder in exchange for Notes acquired
by such Holder directly from DPL.
(v) Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities
that are Exchange Notes held by Participating Broker-Dealers, and DPL
shall have no further obligation to register the Registrable
Securities (other than pursuant to Section 2(b)(iii)) pursuant to
Section 2(b) of this Agreement.
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(b) Shelf Registration.
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In the event that (i) DPL is not permitted to effect the Exchange
Offer because of any change in law or in currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer Registration Statement is not
declared effective within 210 days of the Issue Date, (iii) (1) the Initial
Purchaser is not permitted, in the reasonable opinion of Milbank, Tweed, Xxxxxx
& XxXxxx LLP, pursuant to applicable law or applicable interpretations of the
staff of the SEC, to participate in the Exchange Offer and thereby receive
securities that are freely tradeable without restriction under the Securities
Act and applicable blue sky or state securities laws, (2) the Initial Purchaser
requests registration of Registrable Securities held by it and (3) the Initial
Purchaser's request is received by DPL no later than the later of (A) the date
of filing of the Exchange Offer Registration Statement and (B) 180 days
following the Issue Date, or (iv) any Holder (other than a Participating
Broker-Dealer), in the opinion of counsel to such Holder reasonable acceptable
to the Company, is not eligible to participate in the Exchange Offer or in the
case of any Holder (other than a Participating Broker-Dealer) that participates
in the Exchange Offer, such Holder does not receive freely tradable Exchange
Notes on the date of the exchange and any such Holder so requests (any of the
events specified in (i) - (iv) being a "Shelf Registration Event" and the date
of occurrence thereof, the "Shelf Registration Event Date"), DPL shall promptly
deliver to the Holders and the Trustee written notice thereof and, at its cost,
file as promptly as practicable after such Shelf Registration Event Date, and,
in any event, within 45 days after such Shelf Registration Event Date (but no
earlier than 90 days after the Issue Date) a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities, and
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable; provided, however that if
the Shelf Registration Event is pursuant to clause (iii), DPL may register such
Registrable Securities together with the Exchange Offer Registration Statement,
filed pursuant to Section 2(a), and the requirements as to timing applicable
thereto. No Holder of Registrable Securities shall be entitled to include any of
its Registrable Securities in any Shelf Registration pursuant to this Agreement
unless and until such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to DPL in
writing, within 15 days after receipt of a request therefor, such information as
DPL may, after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected agrees promptly
to furnish to DPL all information with respect to such Holder necessary to make
the information previously furnished to DPL by such Holder not materially
misleading.
DPL agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective for the Rule 144(k) Period
(subject to extension pursuant to the last paragraph of Section 3 hereof) or for
such shorter period which will terminate when all of the securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities ( the
"Effectiveness Period"). DPL shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration. DPL will, in
the event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement and notify each such Holder when the Shelf
Registration has become effective. DPL further agrees, if necessary, to
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supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by DPL for
such Shelf Registration Statement or by the Securities Act or by any other rules
and regulations thereunder for shelf registrations, and DPL agrees to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses.
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DPL shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or 2(b) hereof. Except as provided herein,
each Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) Effective Registration Statement.
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An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof (or a
combination of the two) will not be deemed to have become effective unless it
has been declared effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities pursuant to a
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. DPL will be deemed
not to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if it either
willfully takes any action that would result in any such Registration Statement
not being declared effective or in the Holders of Registrable Securities covered
thereby not being able to exchange or offer and sell such Registrable Securities
during that period unless such action is required by applicable law.
(e) Additional Interest. If DPL fails to comply with this
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Registration Rights Agreement or if the Exchange Offer Registration Statement or
the Shelf Registration Statement fails to become effective as required by this
Registration Rights Agreement, then, as liquidated damages, additional interest
("Additional Interest") shall become payable in respect of the Senior Notes as
follows:
(i) if, the Exchange Offer Registration Statement is not filed on
or prior to the 90th day after the Issue Date or, notwithstanding that
DPL has consummated or will consummate an Exchange Offer, DPL is
required to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date required
by Section 2(b) hereof, then, commencing on the day after the
applicable required filing date, additional interest shall accrue on
the principal amount of the Notes ("Additional Interest") at a rate of
.25% per annum; and
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(ii) if (A) the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th day after the
Issue Date or (B) whether or not DPL has consummated or will
consummate an Exchange Offer, DPL is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 60th day after the
date such Shelf Registration Statement was required to be filed, then,
commencing on the 181st day after the Issue Date or the 61st day after
the applicable required filing date, as the case may be, Additional
Interest shall accrue on the principal amount of the Notes at a rate
of .25% per annum; and
(iii) if (A) DPL has not exchanged the Exchange Notes for the
Notes validly tendered, in accordance with the terms of the Exchange
Offer, on or prior to the 210th day after the Issuance Date or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be effective
at any time prior to the expiration of the Rule 144(k) Period (other
than after such time as all Notes have been disposed of thereunder or
otherwise cease to be Registrable Securities), then Additional
Interest shall accrue on the principal amount of Notes, at a rate of
.25% per annum, commencing on the 211th day after the Issue Date, in
the case of (A) above or the day such Shelf Registration Statement
ceases to be effective, in the case of (B) above;
provided, however, that the Additional Interest rate on the Notes may not exceed
in the aggregate .50% per annum; provided further, however, that (1) upon the
filing of the 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 Notes for all Notes tendered (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 expiration of the Rule 144(k) Period, Additional Interest on the
Notes as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to Section 2(e)(i),
(ii) or (iii) above will be payable in cash on the relevant payment dates for
the payment of interest pursuant to the Indenture.
(f) Specific Enforcement.
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Without limiting the remedies available to the Holders, DPL
acknowledges that any failure of DPL to comply with their obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be required
to specifically enforce the obligations of DPL under Section 2(a) and Section
2(b) hereof.
3. Registration Procedures.
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In connection with the obligations of DPL with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b) hereof, DPL shall:
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(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
(in the case of Section 2(b) hereof) the relevant time period specified and on
the appropriate form(s) under the Securities Act, which form(s) (i) shall be
selected by DPL, (ii) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Securities by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the SEC to
be filed therewith; and use its reasonable best efforts to cause such
Registration Statement(s) to become effective and remain effective in accordance
with Section 2 hereof; provided, however, that if (1) such filing is pursuant to
Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, DPL shall furnish to and afford the Holders of the
Registrable Securities and each such Participating Broker-Dealer, as the case
may be, covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed. DPL shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing underwriters,
if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be, and cause each Prospectus to be
supplemented, if so determined by DPL or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the Securities Act, and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advise such Holder that
the distribution of Registrable Securities will be made in accordance with the
method selected by the Majority Holders, (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities, (iii) consent to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the Shelf Registration
Statement in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto and (iv)
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furnish to each Holder of Registrable Securities upon request, a copy of this
Agreement or, if so requested, a summary thereof if requested by any such
Holder;
(d) in the case of a Shelf Registration, to register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions by the time the applicable Registration Statement is
declared effective by the SEC as any Holder of Registrable Securities covered by
a Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of such
date of effectiveness; provided, however, that DPL shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such service of process
or (iii) file annual reports or comply with any other requirements deemed in its
reasonable judgment to be unduly burdensome;
(e) (1) in the case of a Shelf Registration or (2) in the event
that Participating Broker-Dealers from whom DPL has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly notify
each Holder of Registrable Securities, or each such Participating Broker-Dealer,
as the case may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the Exchange
Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties contained in the Purchase Agreement, or any underwriting agreement
entered into as described in Section 3(m), cease to be true and correct in all
material respects, (v) of the happening of any event or the failure of any event
to occur or the discovery of any facts or otherwise, (A) which makes any
statement made in a Shelf Registration Statement untrue in any material respect
or which causes such Shelf Registration Statement to omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case, as of the time such Shelf Registration Statement
became effective, or (B) which makes any statement made in a Prospectus untrue
in any material respect or which causes such Prospectus to omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case, as of
the date of such Prospectus or as of any date on which a Prospectus is delivered
at any time that the related Registration Statement is required to be effective
and (vi) when DPL reasonably determines that a post-effective amendment to the
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
11
(g) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (including all financial statements and
schedules, and, if so requested, documents incorporated therein by reference or
exhibits thereto);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least two
Business Days prior to the closing of any sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iv), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and
notify each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until DPL has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior
to the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders and make such of the representatives of as shall be reasonably
requested by the Holders of Registrable Securities or the Initial Purchaser on
behalf of such Holders available for reasonable discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes, no later than
the effective date of a Registration Statement, and provide the Trustee with
printed certificates for the Exchange Notes or the Registrable Securities, as
the case may be, in a form eligible for deposit with the Depositary (including,
in the case of any Exchange Notes issued to the Initial Purchaser with a
restrictive legend at the request of the Initial Purchaser, separate printed
certificates with a separate restricted CUSIP number);
(l) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or Registrable
Securities, as the case may be, and effect such changes to such documents as may
be required for them to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such documents
to be so qualified in a timely manner;
12
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in underwritten
offerings and consistent with the terms of the Purchase Agreement and take all
such other appropriate actions as are reasonably requested in order to expedite
or facilitate the registration or the disposition of such Registrable
Securities, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is with respect to an
underwritten offering, if requested by (x) the Initial Purchaser, in the case
where the Initial Purchaser holds Registrable Securities acquired by it as part
of its initial distribution and (y) other Holders of Notes covered thereby: (i)
make such representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business of DPL
and its subsidiaries as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to DPL and updates thereof (which may
be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a majority
in principal amount of the Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters covered in the
Purchase Agreement or otherwise customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriters (it being agreed that the matters to be covered by such
opinions may be subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters (if any) from the
independent certified public accountants of DPL (and, if necessary, any other
independent certified public accountants of any subsidiary of DPL or of any
business acquired by DPL for which financial statements and financial data are,
or are required to be, included in the Registration Statement), addressed to
each of such underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No. 72 and
(iv) if an underwriting agreement is entered into, to cause said underwriting
agreement to contain indemnification provisions and procedures no less favorable
than those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section, including, without limitation, such underwriters and selling
Holders (the above shall be done at each closing under such underwriting
agreement or, as and to the extent required thereunder and consistent with the
terms of the Purchase Agreement);
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b)
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of such Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
13
properties of DPL and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration Statement;
provided, however, that the foregoing inspection and information gathering shall
be coordinated on behalf of all such parties by DPL's designated Holders'
counsel, at the expense of such parties as described in Section 2(c) hereof.
Records of DPL and its subsidiaries which DPL determines in good faith to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or omission in
such Registration Statement, provided that DPL shall be consulted prior to any
such disclosure, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding, or (iii) the information in
such Records has been made available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it or any Inspector
retained by it as a result of such inspections shall be deemed confidential and
shall not be used by it or any Inspector retained by it as the basis for any
market transactions in the securities of DPL unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to DPL and allow DPL at
its expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(o) comply with all applicable rules and regulations of the SEC
so long as any provision of this Agreement shall be applicable and make
generally available to their security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act), no later than 60 days
after the end of any 12-month period (or 120 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of DPL, as the case may be, after the effective date of a
Registration Statement, which statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain (i) an opinion (or reliance letter) of counsel to DPL addressed
to the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer which restates the opinions delivered
pursuant to the Purchase Agreement (with such changes as are customary to
address the Registration Statement and the transfer of the registered Exchange
Notes) and which, without limitation, includes an opinion that (A) DPL has duly
authorized, executed and delivered the Exchange Notes, (B) each of the Exchange
Notes constitutes a legal, valid and binding obligation of DPL, enforceable
against DPL in accordance with its terms (with customary exceptions), and (C)
the Indenture has been duly qualified under the TIA or no such qualification is
required by the TIA and (ii) a comfort letter of the type described in Section
3(m)(iii);
14
(q) if an Exchange Offer is to be consummated, upon delivery of
the Registrable Securities by Holders to DPL (or to such other Person as
directed by DPL), in exchange for the Exchange Notes, xxxx, or cause to be
marked, on such Registrable Securities delivered by such Holders that such
Registrable Securities are being canceled in exchange for the Exchange Notes,
and in no event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities covered by a Registration Statement
contemplated hereby;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement,
(i) (a) indicate in a "Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that any broker or dealer
registered under the Exchange Act who holds Notes that are Registrable
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Registrable
Securities acquired directly from DPL) or that the Initial Purchaser, if it
holds Notes constituting any portion of an unsold allotment (the Initial
Purchaser holding such Notes or such broker or dealer, a "Participating
Broker-Dealer"), may exchange such Notes pursuant to the Exchange Offer;
however, such Participating Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Notes received by such Participating Broker-Dealer in
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Participating Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement and (b) include in such "Plan of
Distribution" section all other information with respect to such resales by
Participating Broker-Dealers that the SEC may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Participating Broker-Dealer or disclose the amount of Exchange Notes held
by any such Participating Broker-Dealer except to the extent required by the
Commission as a result of a change in policy announced after the date of this
Agreement, (ii) furnish to each Participating Broker-Dealer who has delivered to
DPL the notice referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement, including
any preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (DPL hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment or supplement thereto), (iii) use its
reasonable best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein in order
to permit such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange Notes;
15
provided, however, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of Section 3(t)(D)
hereof) (the "Applicable Period") and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it is required to deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer,"
and (y) a statement to the effect that, by a Participating Broker-Dealer making
the acknowledgement described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act;
(B) in the case of any Exchange Offer Registration
Statement, deliver to the Initial Purchaser or to another representative of the
Participating Broker-Dealers, if requested by any such Initial Purchaser or such
other representative of the Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer and (in the
case of clause (iii) below) upon the effectiveness of the Exchange Offer
Registration Statement, (i) an opinion of counsel in form and substance
reasonably satisfactory to the Initial Purchaser or such other representative of
the Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) an officer's certificate containing certifications
substantially similar to those set forth in certificates delivered pursuant to
Section 6(f) of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (iii) as well
as upon the effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form as permitted by Statement on
Auditing Standards No. 72. Each of the foregoing shall be consistent with the
terms of the Purchase Agreement;
(C) DPL may require each seller of Registrable Securities as
to which any registration is being effected to furnish to DPL such information
regarding such seller as may be required by the Staff of the SEC to be included
in a Registration Statement. DPL may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. DPL shall not
have any obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information; and
(D) (1) In the case of a Shelf Registration Statement or (2)
in the event that Participating Broker-Dealers, have notified DPL that they will
be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof and are seeking to sell Exchange
16
Notes and are required to deliver Prospectuses, each Holder agrees that, upon
receipt of any notice from DPL of the happening of any event of the kind
described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by DPL that the use of the applicable
Prospectus may be resumed, and, if so directed by DPL, such Holder will deliver
to DPL (at DPL's expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If DPL shall give any such notice
to suspend the disposition of Registrable Securities or Exchange Notes, as the
case may be, pursuant to a Registration Statement, DPL shall file and use its
best efforts to have declared effective (if an amendment) as soon as practicable
an amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
DPL shall have made available to the Holders (x) copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y) the Advice; and
(u) In the event that any Broker-Dealer registered under the
Exchange Act shall underwrite any Notes or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Notes or
as an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, DPL will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such Rules,
including Rule 2720, shall so require, engaging a "qualified independent
underwriter" (as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Notes, to exercise usual standards of
due diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such Notes,
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 4 hereof and (iii)
providing such information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Rules.
4. Indemnification.
---------------
(a) DPL agrees to indemnify and hold harmless each Holder of the
Registrable Securities or Exchange Notes, any Participating Broker-Dealer and
each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each
Holder, any Participating Broker-Dealer and such controlling persons are
referred to collectively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Registrable
Securities or Exchange Notes) to which each 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
17
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, 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) DPL shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration in reliance upon and in conformity
with written information pertaining to such Holder and furnished to DPL by or on
behalf of such Holder 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 Securities or Exchange Notes concerned, to the extent that a
prospectus relating to such Registrable Securities or Exchange Notes was
required to be delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Registrable Securities or Exchange Notes to
such person, a copy of the final prospectus if DPL had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any liability
which DPL may otherwise have to such Indemnified Party. DPL shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Registrable Securities or Exchange Notes if requested by such Holders.
(b) Each Holder of the Registrable Securities or Exchange Notes,
severally and not jointly, will indemnify and hold harmless DPL and each person,
if any, who controls DPL within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which DPL or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to DPL by or on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, DPL for any legal or other expenses reasonably incurred
by DPL or any such controlling person in connection with investigating or
18
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to DPL or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than 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 counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, 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 a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (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
Securities pursuant to the Exchange Offer, 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 DPL on the one hand or such
Holder or such other indemnified party, as the case may be, on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
19
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders of the Registrable Securities or Exchange Notes shall
not be required to contribute any amount in excess of the amount by which the
net proceeds received by such Holders from the sale of the Registrable
Securities or Exchange Notes pursuant to a Registration Statement exceeds the
amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls DPL within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as DPL.
(e) The agreements contained in this Section 4 shall survive the
sale of the Registrable Securities or Exchange Notes pursuant to a Registration
Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
5. Participation in Underwritten Registrations.
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No Holder may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents reasonably required
under the terms of such underwriting arrangements.
6. Selection of Underwriters.
-------------------------
The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell the securities covered by
such Shelf Registration in an underwritten offering. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to DPL.
7. Miscellaneous.
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(a) Rule 144 and Rule 144A. For so long as DPL is subject to the
----------------------
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, DPL will file the reports required to
be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder. If DPL
ceases to be so required to file such reports, it will, upon the request of any
Holder of Registrable Securities (a) make publicly available such information as
is necessary to permit sales of their securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to purchasers and prospective
20
purchasers as is necessary to permit sales of their securities pursuant to Rule
144A under the Securities Act and take such further action as any Holder of
Registrable Securities may reasonably request and (c) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended and in effect from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended and in effect from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, DPL will deliver to such Holder a written
statement as to whether it has complied with such requirements. Without limiting
the foregoing, DPL will provide a copy of this Agreement upon request to any
purchaser or prospective purchaser of Notes.
(b) No Inconsistent Agreements. DPL has not entered into nor will
--------------------------
DPL on or after the date of this Agreement enter into any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of DPL's other issued and
outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of consents to departures from the provisions hereof
may not be given without the written consent of Holders of at least a majority
in aggregate principal amount of the outstanding Registrable Securities affected
by such amendment, modification, supplement, waiver or departure; provided that
no departure with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities without the consent of
such Holder. Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securities, by written
agreement signed by DPL and the Trustee, to cure any ambiguity, correct or
supplement any provision of this Agreement that may be defective or inconsistent
with any other provision of this Agreement or to make any other provisions with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement and shall not adversely
affect the interests of the Holders in any material respect, (ii) without the
consent of any Holder of Registrable Securities, this Agreement may be amended,
modified or supplemented, and waivers and consents to departures from the
provisions hereof may be given, by written agreement signed by DPL and the
Trustee to the extent that any such amendment, modification, supplement, waiver
or consent is, in their reasonable judgment, necessary or appropriate to comply
with applicable law (including any interpretation of the Staff of the SEC) or
any change therein and (iii) to the extent any provision of this Agreement
relates to the Initial Purchaser but not to any other Holder, such provision may
be amended, modified or supplemented, and waivers or consents to departures from
such provisions may be given, by written agreement signed by the Initial
Purchaser, DPL and the Trustee.
(d) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to DPL by means
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of a notice given in accordance with the provisions of this Section 7(d) or in
the absence of, such notice, as specified in the Indenture for registered holder
of Notes, which address initially is, with respect to the Initial Purchaser, the
address set forth in the Purchase Agreement and (ii) if to DPL, initially at
DPL's address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries of the agreements made hereunder among DPL and the Initial Holder
and shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights hereunder.
(g) Consent to Jurisdiction; Appointment of Agent to Accept
-------------------------------------------------------
Service of Process. DPL irrevocably submits to the non-exclusive jurisdiction of
------------------
any federal or state court in the City, County and State of New York, United
States of America, in any legal suit, action or proceeding based on or arising
under this Agreement and agrees that all claims in respect of such suit or
proceeding may be determined in any such court. DPL irrevocably waives the
defense of an inconvenient forum or objections to personal jurisdiction with
respect to the maintenance of such legal suit, action or proceeding. DPL has
appointed Xxxxxx Xxxx & Priest LLP (the "Process Agent") as its authorized agent
upon whom process may be served in any such legal suit, action or proceeding.
Such appointment shall be revocable by serving written notice on the Trustee of
the appointment of a subsequent Process Agent by DPL and the effectiveness of
such appointment. The Process Agent has agreed to act as said agent for service
of process and agrees to take any and all action including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. DPL further agrees that
service of process upon the Process Agent and written notice of said service to
each of DPL shall be deemed in every respect effective service of process upon
each of DPL in any such legal suit, action or proceeding. Nothing herein shall
22
affect the right of the Initial Purchaser or any person controlling the Initial
Purchaser to serve process in any other manner permitted by law. The provisions
of this subsection (g) shall remain operative and in full force and effect
regardless of any termination of this Agreement, in whole or in part.
(h) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
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MADE IN THE STATE OF NEW YORK. THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(k) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Securities Held by DPL or its Affiliates. Whenever the
----------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by DPL or any of
its affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
DPL INC.
By: /s/ X. X. Xxxxxx
------------------------------------
Name: X. X. Xxxxxx
Title: Group Vice President
Accepted and delivered as of
the date first above written
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Initial Purchaser
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
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