EXHIBIT 1.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 16, 1999 (this
"Agreement"), among CINERGY CORP., a Delaware corporation (the "Company") and
XXXXXXX XXXXX XXXXXX INC., BARCLAYS CAPITAL INC., CHASE SECURITIES INC., AND
XXXXXX XXXXXXX & CO. INCORPORATED as the initial purchasers (the "Initial
Purchasers") of the 6.125% Debentures due 2004 of the Company.
This Agreement is made pursuant to the Purchase Agreement, dated as
of April 13, 1999, among the Company and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase agreement, the Company has agreed to provide the registration rights
provided for in the Agreement to the Initial Purchasers and their respective
direct and indirect transferees. The execution of the Agreement is a condition
to the closing of the transactions contemplated by the Purchase Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following
terms shall have the following respective meanings:
(a) "Closing Date" means the date on which the Debentures are
initially issued.
(b) "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act
or the Securities Act, whichever is the relevant statute for the
particular purpose.
(c) "Debentures" means the 6.125% Debentures due 2004, to be
issued under the Indenture and sold by the Company to the Initial
Purchasers, and Debentures (other than Exchange Debentures) issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
(d) "Effectiveness Period" means the period commencing with the
date hereof and ending on the date that all Debentures have ceased to
be Registrable Debentures.
(e) "Effective Time", in the case of (i) an Exchange Offer, means
the time and date as of which the Commission declares the Exchange
Offer Registration Statement effective or as of which the
Exchange Offer Registration Statement otherwise becomes effective and
(ii) a Shelf Registration, means the time and date as of which the
Commission declares the Shelf Registration effective or as of which
the Shelf Registration otherwise becomes effective.
(f) "Exchange Act" means the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to
time.
(g) "Exchange Offer" has the meaning assigned thereto in Section
2(a).
(h) "Exchange Offer Registration Statement" has the meaning
assigned thereto in Section 2(a).
(i) "Exchange Registration" has the meaning assigned thereto in
Section 3(f).
(j) "Exchange Debentures" has the meaning assigned thereto in
Section 2(a).
(k) "Holder" means each Initial Purchaser for so long as it owns
any Registrable Debentures, and such of its respective successors and
assigns who acquire Registrable Debentures, directly or indirectly,
from such person or from any successor or assign of such person, in
each case for so long as such person owns any Registrable Debentures.
(l) "Indenture" means the Indenture, dated as of April 16, 1999,
between the Company and The Fifth Third Bank, as Trustee, as the same
shall be amended from time to time.
(m) "Initial Purchasers" mean Xxxxxxx Xxxxx Barney Inc., Barclays
Capital Inc., Chase Securities Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated.
(n) "Person" means a corporation, association, partnership,
limited liability company, business, individual, or any other entity
or organization, including any government or political subdivision
thereof or governmental agency.
(o) "Purchase Agreement" means the Purchase Agreement dated as of
April 13, 1999 among the Company and the Initial Purchasers.
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(p) "Registrable Debentures" means the Debentures; provided,
however, that the Debentures shall cease to be Registrable Debentures
when (i) the Debentures have been exchanged for Exchange Debentures
in an Exchange Offer as contemplated in Section 2(a); (ii) in the
circumstances contemplated by Section 2(b), a registration statement
registering the Debentures under the Securities Act has been declared
or becomes effective and the Debentures have been sold or otherwise
transferred by the holder thereof pursuant to such effective
registration statement; (iii) the Debentures are sold pursuant to
Rule 144 under circumstances in which any legend borne by the
Debentures relating to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed or the Debentures are
eligible to be sold pursuant to paragraph (k) of Rule 144; or (iv)
the Debentures shall cease to be outstanding.
(q) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(r) "Additional Interest" has the meaning assigned thereto in
Section 2(c).
(s) "Registration Expenses" has the meaning assigned thereto in
Section 4.
(t) "Resale Period" means the period beginning on the date the
Shelf Registration becomes effective and ending on the earlier of (i)
the Shelf Registration ceasing to be effective or (ii) the second
anniversary of the Closing Date.
(u) "Restricted Holder" means (i) a holder that is an affiliate
of the Company within the meaning of Rule 405, (ii) a holder who
acquires Exchange Debentures outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer
for the purpose of distributing Exchange Debentures, or (iv) a
broker-dealer who receives Debentures for its own account but did not
acquire the Debentures as a result of market-making activities or
other trading activities.
(v) "Rule 144," "Rule 405" and "Rule 415" means, in each case,
such rule promulgated under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
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(w) "Securities Act" means the Securities Act of 1933 and the
rules and regulations promulgated by the SEC thereunder, all as the
same shall be amended from time to time.
(x) "Shelf Registration Statement" has the meaning assigned
thereto in Section 2(b).
(y) "Trust Indenture Act" means the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise
requires, any reference to a statute, rule or regulation refers to the same
(including any successor statute, rule or regulation thereto) as it may be
amended from time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company agrees to
use its reasonable best efforts to file under the Securities Act a
registration statement (the "Exchange Offer Registration Statement")
relating to an offer to exchange (the "Exchange Offer") any and all
of the Debentures for a like aggregate amount of Debentures issued by
the Company, which have the same terms as the Debentures (and are
entitled to the benefits of a trust indenture which has been
qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act, do not contain restrictions on transfers and do not
contain provisions for the additional interest contemplated in
Section 2(c) below (such new Debentures hereinafter called "Exchange
Debentures"). The Company agrees to use its reasonable best efforts
to cause the Exchange Offer Registration Statement to become
effective under the Securities Act within 180 days after the Closing
Date. The Company agrees to use its reasonable best efforts to
register the Exchange Offer under the Securities Act on the
appropriate form and to comply with all applicable requirements of
the Securites Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. The Company further agrees to use
its reasonable best efforts to commence and
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complete the Exchange Offer promptly after the Exchange Offer
Registration Statement has become effective for all Debentures that
have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed
completed only (i) if the Exchange Debentures received by holders
(other than Restricted Holders) in the Exchange Offer for Debentures
are, upon receipt, transferable by each such holder without
restriction imposed thereon by the Securities Act or the Exchange Act
and without material restrictions imposed thereon by the blue sky or
securities laws of a substantial majority of the States of the United
States of America and (ii) upon the Company having exchanged,
pursuant to the Exchange Offer, Exchange Debentures for all
Debentures that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that
is at least 30 days following the commencement of the Exchange Offer.
(b) If (i) because of any change in law or in applicable
interpretations by the staff of the Commission, the Company is not
permitted to effect the Exchange Offer or (ii) in the case of any
holder, other than a Restricted Holder, that participates in the
Exchange Offer, such holder does not receive Exchange Debentures on
the date of the exchange that may be sold without restriction under
state and federal securities laws (other than due solely to the
status of such holder as an affiliate of the Company within the
meaning of the Securities Act), then in addition to or in lieu of
conducting the Exchange Offer contemplated by Section 2(a), the
Company shall file under the Securities Act as promptly as
practicable a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Debentures, pursuant to Rule 415
or any similar rule that may be adopted by the Commission (the "Shelf
Registration Statement"). The Company agrees to use its reasonable
best efforts to cause the Shelf Registration Statement to become or
be declared effective and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of (i) the
second anniversary of the Closing Date or (ii) such time as there are
no longer any Registrable Debentures outstanding. The Company further
agrees to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registrations, and the Company
agrees to furnish to the holders of the Registrable Debentures copies
of any such supplement or amendment prior to its being used or
promptly following its filing with the Commission.
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(c) If any of the following events (any such event a
"Registration Default") shall occur, then, as liquidated damages,
additional interest (the "Additional Interest") shall become payable
in respect of the Debentures as follows:
(i) if the Exchange Offer Registration Statement or a
Shelf Registration Statement is not filed with the
Commission within 120 days following the Closing Date, then
commencing on the 121st day after the Closing Date,
Additional Interest shall accrue on the principal amount of
the Debentures at a rate of 0.25% per annum; or
(ii) if neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is declared
effective by the Commission on or prior to the 180th day
following the Closing Date, then commencing on the 181st day
after the Closing Date, Additional Interest shall accrue on
the principal amount of the Debentures at a rate of 0.25%
per annum; or
(iii) if either (A) the Company has not exchanged
Exchange Debentures for all Debentures validly tendered and
not withdrawn, in accordance with the terms of the Exchange
Offer, on or prior to 35 days after the date on which the
Exchange Offer Registration Statement was declared
effective, or (B) if applicable, the Shelf Registration
Statement has been declared effective but such Shelf
Registration Statement ceases to be effective at any time
prior to two years from the Closing Date, then commencing on
(x) the 36th day after such effective date, in the case of
(A) above, or (y) the day such Shelf Registration Statement
ceases to be effective, in the case of (B) above, Additional
Interest shall accrue on the principal amount of Debentures
at a rate of 0.25% per annum.
provided, however, that the Additional Interest rate on the Debentures, shall
not exceed in the aggregate 0.25% per annum; provided further, however, that
(1) upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Debentures for all Debentures validly tendered and not
withdrawn (in the case of clause (iii) (A) above), or upon the effectiveness
of the Shelf Registration Statement which had ceased to remain effective (in
the case of clause (iii) (B) above), or (4) upon
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the termination of certain transfer restrictions on the Debentures as a result
of the application of Rule 144(k), Additional Interest on the Debentures as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue.
(d) Any reference herein to a registration statement shall be
deemed to include any document incorporated therein by reference as
of the applicable Effective Time and any reference herein to any
post-effective amendment to a registration statement shall be deemed
to include any document incorporated therein by reference as of a
time after such Effective Time.
(e) Notwithstanding any other provision of this Agreement, no
holder of Registrable Debentures who does not comply with the
provisions of Section 3(d), if applicable, shall be entitled to
receive Additional Interest unless and until such holder complies
with the provisions of such section, if applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration Statement, as the case may be, the Company shall
qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to
the Shelf Registration Statement, if applicable, the Company shall,
as soon as reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration Statement
on any form which may be utilized by the Company and which
shall permit the disposition of the Registrable Debentures
in accordance with the intended method or methods thereof,
as specified in writing by the holders of the Registrable
Debentures, and use its reasonable best efforts to cause
such registration statement to become effective as soon as
practicable thereafter;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to
effect and
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maintain the effectiveness of such registration statement
for the period specified in Section 2(b) and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of
such registration statement, and furnish to the holders of
the Registrable Debentures copies of any such supplement or
amendment simultaneously with or prior to its being used or
filed with the Commission;
(iii) comply, as to all matters within the Company's
control, with the provisions of the Securities Act with
respect to the disposition of all of the Registrable
Debentures covered by such registration statement in
accordance with the intended methods of disposition by the
holders thereof provided for in such registration statement;
(iv) provide to any of (A) the holders of the
Registrable Debentures to be included in such registration
statement, (B) the underwriters (which term, for purposes of
this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement
agent, if any, therefor, (D) counsel for such underwriters
or agent and (E) not more than one counsel for all the
holders of such Registrable Debentures who so request of the
Company in writing the opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the Resale Period,
make available at reasonable times at the Company's
principal place of business or such other reasonable place
for inspection by the persons referred to in Section
3(b)(iv), who shall certify to the Company that they have a
current intention to sell their Registrable Debentures
pursuant to the Shelf Registration Statement, such financial
and other information and books and records of the Company,
and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to
such inquiries, as shall be reasonably necessary, in the
judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain
in confidence and not to disclose to
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any other person any information or records reasonably
designated by the Company in writing as being confidential,
until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject
to the requirements of such order, and only after such
person shall have given the Company prompt prior written
notice of such requirement and the opportunity to contest
the same or seek an appropriate protective order), or (C)
such information is required to be set forth in such
registration statement or the prospectus included therein or
in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that
such registration statement, prospectus, amendment or
supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(vi) promptly notify the selling holders of Registrable
Debentures, the sales or placement agent, if any, therefor
and the managing underwriter or underwriters, if any,
thereof named in the Shelf Registration Statement or a
supplement thereto, and confirm such notice in writing, (A)
when such registration statement or the prospectus included
therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect
to such registration statement or any post-effective
amendment, when the same has become effective, (B) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the
initiation or written threat of any proceedings for that
purpose, (C) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Registrable Debentures for sale in any
jurisdiction or the initiation or written threat of any
proceeding for such purpose, or (D) at any time when a
prospectus is required to be delivered under the Securities
Act, that such registration statement, prospectus,
prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder;
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(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment
thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder of
Registrable Debentures, promptly incorporate in a prospectus
supplement or post-effective amendment such information as
is required by the applicable rules and regulations of the
Commission relating to the terms of the sale of such
Registrable Debentures, including information with respect
to the principal amount of Registrable Debentures being sold
by such holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the
offering price of such Registrable Debentures and any
discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor by
such underwriters and with respect to any other terms of the
offering of the Registrable Debentures to be sold by such
holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or
post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(ix) furnish to each holder of Registrable Debentures,
each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel
referred to in Section 3(b)(iv) an executed copy (or, in the
case of a holder of Registrable Debentures, a conformed
copy) of such registration statement, each such amendment or
supplement thereto (in each case including all exhibits
thereto) and such number of copies of such registration
statement (excluding exhibits thereto) and of the prospectus
included in such registration statement (including each
preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission
thereunder; and the Company hereby consents to the use of
such prospectus (including any such preliminary or summary
prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each
case in the form most recently provided to such person by
the Company in connection with the offering and sale of the
Registrable Debentures covered by the prospectus (including
any
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such preliminary or summary prospectus) or any supplement or
amendment thereto; and
(x) use its reasonable best efforts to (A) register or
qualify the Registrable Debentures to be included in such
registration statement under such securities laws or blue
sky laws of such United States jurisdictions as any holder
of such Registrable Debentures and each placement or sales
agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, and (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf
Registration Statement is required to remain effective under
Section 2(b) and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its
distribution of Debentures pursuant to such registration
statement but in any event not later than the date through
which the Company is required to keep the Shelf Registration
Statement effective pursuant to Section 2(b); provided,
however, that the Company shall not be required for any such
purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(b)(x),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders.
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company, such obligation
shall be subject to the provision of such information by such party; provided
that the Company shall use its reasonable best efforts to obtain the necessary
information from any party responsible for providing such information.
(c) In the event that the Company would be required, pursuant to
Section 3(b)(vi)(D), to notify the selling holders of Registrable
Debentures, the placement or sales agent, if any, therefor or the
managing underwriters, if any, thereof named in the Shelf
Registration Statement or a supplement thereto of the existence of
the circumstances described therein, the Company shall promptly
prepare and furnish to each such holder, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Debentures, such
prospectus shall conform in all material
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respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder. Each holder of Registrable Debentures agrees that upon
receipt of any notice from the Company, pursuant to Section
3(b)(vi)(D), such holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Debentures pursuant to
the registration statement applicable to such Registrable Debentures
until such holder (i) shall have received copies of such amended or
supplemented prospectus and, if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's
possession of the prospectus covering such Registrable Debentures at
the time of receipt of such notice or (ii) shall have received notice
from the Company that the disposition of Registrable Debentures
pursuant to the Shelf Registration Statement may continue.
(d) The Company may require each holder of Registrable Debentures
as to which any registration pursuant to Section 2(b) is being
effected to furnish to the Company such information regarding such
holder and such holder's intended method of distribution of such
Registrable Debentures as the Company may from time to time
reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act.
Each such holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to
such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method
of disposition of such Registrable Debentures or omits to state any
material fact regarding such holder or such holder's intended method
of disposition of such Registrable Debentures required to be stated
therein or necessary to make the statements therein not misleading,
and promptly to furnish to the Company any additional information
required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect
to such holder or the disposition of such Registrable Debentures, an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(e) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to resell any of the Debentures that have been
reacquired by any
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of them except pursuant to an effective registration statement under
the Securities Act.
(f) In connection with the Company's obligations with respect to
the registration of Exchange Debentures as contemplated by Section
2(a) (the "Exchange Registration"), if applicable, the Company shall,
as soon as reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission such
amendments and supplements to the Exchange Offer
Registration Statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness
thereof for the periods and purposes contemplated in Section
2(a) hereof and as may be required by the applicable rules
and regulations of the Commission and the instructions
applicable to the form of the Exchange Offer Registration
Statement, and promptly provide each broker-dealer holding
Exchange Debentures with such number of copies of the
prospectus included therein (as then amended or
supplemented), in conformity in all material respects with
the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request for use in connection with resales of Exchange
Debentures;
(ii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
the Exchange Offer Registration Statement, and confirm such
advice in writing, (A) when any prospectus amendment or
supplement or post-effective amendment to the Exchange Offer
Registration Statement has been filed, and, with respect to
any post-effective amendment to the Exchange Offer
Registration Statement, when the same has become effective,
(B) of the issuance by the Commission of any stop order
suspending the effectiveness of the Exchange Offer
Registration Statement or the initiation or threatening of
any proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension
of the qualification of the Exchange Debentures for sale in
any United States jurisdiction or the initiation or
threatening in writing of any proceeding for such purpose,
or (D) at any time when a prospectus is required to be
delivered under the Securities Act, that the Exchange Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of
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the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder;
(iii) in the event that the Company would be required,
pursuant to Section 3(f)(ii)(D), to notify any
broker-dealers holding Exchange Debentures, promptly prepare
and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange
Debentures, such prospectus shall conform in all material
respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or notify such
broker-dealers that the offer and sale of Exchange
Debentures pursuant to the Exchange Offer Registration
Statement may continue;
(iv) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Exchange Offer Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(v) use its reasonable best efforts to register or
qualify the Exchange Debentures under the securities laws or
blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(f)(v), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders; and
(vi) make generally available to its security holders as
soon as practicable but no later than eighteen months after
the effective date of such registration statement, an
earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158
thereunder).
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company, such obligation
shall be subject to the provision of such information; provided that the
Company shall use
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its reasonable best efforts to obtain the necessary information from any party
responsible for providing such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Debentures or Exchange
Debentures for offering and sale under the State securities and blue sky laws
referred to in Section 3(b)(x) and Section 3(f)(v) hereof, including
reasonable fees and disbursements of one counsel for the placement or sales
agent or underwriters, if any, in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction
of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment
or supplement to the foregoing, the certificates representing the Debentures
and all other documents relating hereto, (d) fees and expenses of the Trustee
under the Indenture, and of any escrow agent or custodian, (e) internal
expenses (including all salaries and expenses of the Company's officers and
employees performing legal or accounting duties), (f) fees, disbursements and
expenses of counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance) and (g) reasonable
fees, disbursements and expenses of one counsel for the holders of Registrable
Debentures retained in connection with a Shelf Registration Statement, as
selected by the holders of at least a majority in aggregate principal amount
of the Registrable Debentures being registered and approved by the Company,
and fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of
Registrable Debentures or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
documented request therefor. Notwithstanding the foregoing, the holders of the
Registrable Debentures being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Debentures and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5. Representations and Warranties
15
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Debentures
that:
(a) Each registration statement covering Registrable Debentures
and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section
3(f) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Debentures, at the time of the
closing under the underwriting agreement relating thereto, will
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective
Time when a prospectus would be required to be delivered under the
Securities Act, other than from such time as a notice has been given
to holders of Registrable Debentures pursuant to Section 3(b)(vi)(D)
or Section 3(f)(ii)(D) hereof until such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section
3(c) or Section 3(f)(iii) hereof or such time as the Company provides
notice that offers and sales pursuant to the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the
case may be, may continue, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(b) or Section 3(f) hereof, as then
amended or supplemented, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of a holder of Registrable Debentures expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may
be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents will contain or contained an
untrue statement of a material fact or will omit or omitted to state
a material fact required to be stated therein
16
or necessary to make the statements therein not misleading, provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of
Registrable Debentures expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or, except
to the extent that any such contravention would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
any indenture or instrument relating to indebtedness for money
borrowed or any agreement to which the Company is a party or any
order, rule, regulation or decree of any court or governmental agency
or authority located in the United States having jurisdiction over
the Company or any property of the Company; and, to the best
knowledge of the Company, no consent, authorization or order of, or
filing or registration with, any court or governmental agency or
authority is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Securities Act contemplated hereby, qualification of the
Indenture, under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under State securities or blue sky laws.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
6. Indemnification
(a) In connection with an Exchange Offer Registration Statement
or a Shelf Registration Statement, the Company agrees to indemnify
and hold harmless each of the holders of Registrable Debentures
included in such Exchange Offer Registration Statement or Shelf
Registration Statement, and each person who is named in such Exchange
Offer Registration Statement or Shelf Registration Statement or a
supplement thereto as a placement or sales agent or as an underwriter
in any offering or sale of such Registrable Debentures and each
person who controls any such person (each, a "Participant") from and
against any and all losses, claims, damages and liabilities
(including the fees and expenses of counsel in connection with any
governmental or regulatory investigation or proceeding) caused by any
untrue statement or alleged untrue statement of a material fact
contained in any registration statement
17
under which such Registrable Debentures were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Participant
expressly for use therein.
(b) In case any action shall be brought against any Participant,
based upon any registration statement under which the Registrable
Debentures were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Participant, or any amendment or
supplement thereto and in respect of which indemnity may be sought
against the Company, such Participant shall promptly notify the
Company in writing, and the Company, upon the request of such
Participant, shall assume the defense thereof on behalf of such
Participant, including the employment of counsel and payment of all
expenses. In any such action, any Participant shall have the right to
employ its own counsel but the fees and expenses of such counsel
shall be at the expense of such Participant unless (i) the employment
of such counsel has been specifically authorized in writing by the
Company or (ii) the named parties to any such action (including any
impleaded parties) include both such Participant and the Company and
such Participant shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different
from or additional to those available to the Company (it being
understood, however, that the Company shall not, in connection with
any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to
one firm of local counsel) for all such Participants, which firm
shall be designated in writing by you, and that such fees and
expenses shall be reimbursed as they are incurred). The Company shall
not be liable for indemnification (or contribution as provided below)
with respect to the settlement of any such action effected without
its written consent, but if settled with the written consent of the
Company or if there be a final judgment for the plaintiff in any such
action, the Company agrees to indemnify and hold harmless any
Participant from and against any loss or liability by reason of such
settlement or judgment (or to make contribution as provided below).
(c) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
and any person controlling
18
the Company to the same extent as the foregoing indemnity from the
Company to each Participant, but only with reference to information
relating to such Participant furnished in writing by such Participant
expressly for use in any registration statement under which such
Registrable Debentures were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Participant, or any amendment or
supplement thereto. In case any action shall be brought against the
Company, any of its directors or any such officer or controlling
person based on any registration statement under which such
Registrable Debentures were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Participant, or any amendment or
supplement thereto and in respect of which indemnity may be sought
against any Participant, each Participant shall have the rights and
duties given to the Company, and the Company, its directors or any
such officer or controlling person shall have the rights and duties
given to each Participant, by Section 6(b).
(d) If the indemnification provided for in Section 6(a) is
unavailable to any Participant or other indemnified party in respect
of any losses, claims, damages or liabilities referred to therein,
then the Company, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Participants on the other from the offering of the Registrable
Debentures or (ii) if the allocation provided by clause (i) above 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 Company on the one hand and
of the Participants on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Participants on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
purchasing discounts and commissions received by the Participants, in
each case as set forth in any registration statement under which such
Registrable Debentures were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Participant, or any amendment or
supplement thereto. The relative fault of the Company and of the
Participants shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied
by the Company or by the Participants and the
19
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) If the indemnification provided for in this Section 6 is
sought solely by the Company under Section 6(c) hereof and there is
no claim for indemnification by any Participant arising out of the
same misstatement or omission and if such indemnification is
unavailable to the Company in respect of any losses, claims, damages
or liabilities referred to in Section 6(c), then the Participants, in
lieu of indemnifying the Company, shall contribute to the amount paid
or payable by the Company as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Participants
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Participants on the other
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company and the Participants agree that it would not be
just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Participants were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to in the two immediately preceding
paragraphs. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
such paragraphs shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
of this Section 6, no Participant shall be required to contribute any
amount in excess of the amount by which the total price at which the
Registrable Debentures purchased by it and distributed to the public
were offered to the public in connection with the initial offering of
the Debentures exceeds the amount of any damages which such
Participant has 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 is not guilty of such fraudulent
misrepresentation. The Participants' obligations to contribute
pursuant to this Section 6 are several in proportion to their
respective purchasing percentages and not joint.
20
(g) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Participant or by or on
behalf of the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any
of the Registrable Debentures.
7. Rule 144.
The Company covenants to the holders of Registrable Debentures that
the Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such holder
to sell Registrable Debentures without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
or successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Debentures in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Debentures which
would be inconsistent with the terms contained in this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: If to the Company, to it at 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attn: Vice President and Treasurer;
if to an Initial Purchaser, to it at the address for the Initial
Purchasers set forth in the Purchase Agreement; and if to a holder,
to the address of such holder set forth in the security register
21
or other records of the Company or to such other address as the
Company or any such holder may have furnished to the other in writing
in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any holder of
Registrable Debentures shall acquire Registrable Debentures, in any
manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or
action of any kind, be deemed a party hereto for all purposes and
such Registrable Debentures shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable
Debentures such transferee shall be entitled to receive the benefits
of, and be conclusively deemed to have agreed to be bound by and to
perform, all of the applicable terms and provisions of this
Agreement.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in
this Agreement or made pursuant hereto shall remain in full force and
effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Debentures, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or
any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Debentures pursuant to
the Purchase Agreement and the transfer and registration of
Registrable Debentures by such holder and the consummation of an
Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(f) Headings. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only,
do not constitute a part of this Agreement and shall not affect in
any way the meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contain the entire
understanding
22
of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in
aggregate principal amount of the Registrable Debentures at the time
outstanding. Each holder of any Registrable Debentures at the time or
thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 8(g), whether or not any notice,
writing or marking indicating such amendment or waiver appears on
such Registrable Debentures or is delivered to such holder.
(h) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all
the holders of Registrable Debentures shall be made available for
inspection and copying on any business day by any holder of
Registrable Debentures for proper purposes only (which shall include
any purpose related to the rights of the holders of Registrable
Debentures under the Debentures, the Indenture and this Agreement) at
the offices of the Company at the address thereof set forth in
Section 8(b) above, or at the office of the Trustee under the
Indenture.
(i) Counterparts. This Agreement may be executed by the parties
in counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and
the same instrument.
(j) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable
Debentures, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement; provided
that the sole damages payable for a violation of the terms of this
Agreement for which liquidated damages are expressly provided
pursuant to Section 2(c) hereof shall be such liquidated damages. The
Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that,
in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be
adequate.
23
(k) Successors and Assigns. Any person who purchases any
Registrable Debentures from an Initial Purchaser shall be deemed, for
purposes of this Agreement, to be an assignee of such Initial
Purchaser. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and
shall inure to the benefit of and be binding upon each Holder of any
Registrable Debentures.
(l) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect
and shall in no way be affected, impaired or invalidated thereby, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, illegal, void or
unenforceable.
(m) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(n) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things reasonably necessary,
proper or advisable under applicable law, and execute and deliver
such documents and other papers, as may be required to carry out the
provisions of this Agreement and the other documents contemplated
hereby and consummate and make effective the transactions
contemplated hereby.
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness
Period, except for any liabilities or obligations under Sections 4 or
5 hereof and the obligations to make payments of and provide for
liquidated damages under Section 2(c) hereof to the extent such
damages accrue prior to the end of the Effectiveness Period, each of
which shall remain in effect in accordance with their terms.
24
Agreed to and accepted as of the date referred to above.
CINERGY CORP.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and Treasurer
XXXXXXX XXXXX XXXXXX INC.
BARCLAYS CAPITAL INC.
CHASE SECURITIES INC.
XXXXXX XXXXXXX & CO.
INCORPORATED
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
25
Cinergy Corp.
Certificate
I, Xxxxxxx Xxxxxxx, Vice President and Treasurer of Cinergy Corp., a
Delaware corporation (the "Company"), hereby certify that I have authorized
the issuance by the Company of $200,000,000 aggregate principal amount of
6.125% Debentures due 2004 (the "Debentures") pursuant to the resolutions of
the Board of Directors of the Company adopted July 29, 1998 with terms and
provisions as set forth in the Purchase Agreement, dated April 13, 1999,
between the Company and Xxxxxxx Xxxxx Barney Inc., Barclays Capital Inc.,
Chase Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
April 16, 1999 /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President and Treasurer
