EXHIBIT 4(a)
EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT FOR
6 7/8% SENIOR NOTES DUE 2011
Dated as of August 24, 2001
between
DPL INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
and
BANC ONE CAPITAL MARKETS, INC.
and
FLEET SECURITIES, INC.
and
NATCITY INVESTMENTS, INC.
as Initial Purchasers
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of August 24, 2001 between DPL INC., an Ohio corporation
("DPL"), and XXXXXX XXXXXXX & CO. INCORPORATED and BANC ONE CAPITAL MARKETS,
INC., FLEET SECURITIES, INC. and NATCITY INVESTMENTS, INC. (the "INITIAL
PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated August 24,
2001 (the "PURCHASE Agreement"), between DPL, as issuer, of the 6 7/8% Senior
Notes Due 2011 (the "NOTES"), and the Initial Purchasers, which provides for,
among other things, the sale by DPL to the Initial Purchasers of $400,000,000
aggregate principal amount of the Notes. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, DPL has agreed to provide to
the Initial Purchasers, for the benefit of the Initial Purchasers and each other
Holder (as defined below), the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
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defined terms shall have the following meanings:
"ADDITIONAL INTEREST" shall have the meaning set forth in SECTION 2(E)
hereof.
"ADVICE" shall have the meaning set forth in Section 3(T)(D) hereof.
"AFFILIATE" shall have the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"APPLICABLE PERIOD" shall have the meaning set forth in SECTION 3(T)(A)
hereof.
"BUSINESS DAY" shall mean a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York City, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Trustee's
principal corporate trust office is closed for business.
"DEPOSITARY" shall mean, with respect to Notes or Exchange Notes in global
registered form, The Depository Trust Company, or any other depositary appointed
by DPL; provided, however, that such depositary must have an address in the
Borough of Manhattan, The City of New York.
"DPL" shall have the meaning set forth in the preamble to this Agreement.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in SECTION 2(B)
hereof.
"ELIGIBLE HOLDER" shall have the meaning set forth in SECTION 2(A)(I)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
and in effect from time to time.
"EXCHANGE NOTES" shall mean DPL's 6 7/8% Senior Notes Due 2011 containing
terms identical to the Notes (except that they will not contain registration
rights, will not provide for any Additional Interest to be payable with respect
thereto and will not, contain terms with respect to the transfer restrictions
under the Securities Act).
"EXCHANGE OFFER" shall mean the offer by DPL to the Holders to exchange the
Registrable Securities for a like principal amount of Exchange Notes pursuant to
SECTION 2(A) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to SECTION 2(A) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus to be contained therein, all exhibits thereto
and all material incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2(A)(II)(B)
hereof.
"HOLDER" shall mean each of the Initial Purchasers, for so long as it owns
beneficial interests in any Registrable Securities, and each registered holder
of, or owner of beneficial interests in, Registrable Securities.
"INDENTURE" shall mean the Indenture relating to the Notes and the Exchange
Notes dated as of March 1, 2000 between DPL, as issuer of the Notes and the
Exchange Notes, and the Trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble of
this Agreement.
"INSPECTORS" shall have the meaning set forth in SECTION 3(N) hereof.
"ISSUE DATE" shall mean August 31, 2001, the date of original issuance of
the Notes.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Notes.
"NOTES" shall have the meaning set forth in the preamble to this Agreement.
"NOTICE" shall have the meaning set forth in SECTION 2(A)(II)(A) hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in SECTION
3(T) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company or a government or agency
or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus to be included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
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supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble of
this Agreement.
"RECORDS" shall have the meaning set forth in SECTION 3(N) hereof.
"REGISTRABLE SECURITIES" shall mean the Notes; provided, however, that the
Notes shall cease to be Registrable Securities when (i) a Registration Statement
with respect to such Notes for the exchange or resale thereof, as the case may
be, has been declared effective under the Securities Act and the Notes have been
disposed of pursuant to such Registration Statement, (ii) the Notes have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act or are eligible to be sold
without restriction as contemplated by Rule 144(k), (iii) such Notes have ceased
to be outstanding or (iv) the Notes have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradable by the
holder thereof (other than an Affiliate of DPL).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by DPL and with this Agreement, including, without
limitation: (i) all SEC or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" (and its counsel) that is
required to be retained by any Holder of Registrable Securities in accordance
with the rules and regulations of the NASD; (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Notes or
Registrable Securities) and compliance with the rules of the NASD, in an amount
not exceeding $15,000 in the aggregate, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, 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
Pillsbury Winthrop LLP, as counsel for the Holders hereunder in connection with
the Exchange Offer, and of the independent certified public accountants of DPL,
including the expenses of any "cold comfort" letters required by or incident to
such performance and compliance with this Agreement, (vi) the reasonable fees
and expenses of the Trustee and its counsel and any paying agent, exchange agent
or custodian, (vii) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities or the Exchange Notes on
any securities exchange or exchanges and (viii) the reasonable fees and expenses
of any special experts retained by DPL in connection with any Registration
Statement.
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"REGISTRATION STATEMENT" shall mean any registration statement of DPL which
covers any of the Exchange Notes or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"RULE 144(K) PERIOD" shall mean the period of two years (or such shorter
period as may hereafter be provided in Rule 144(k) under the Securities Act (or
similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended and in
effect from time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to SECTION
2(B) hereof.
"SHELF REGISTRATION EVENT" shall have the meaning set forth in SECTION 2(B)
hereof.
"SHELF REGISTRATION EVENT DATE" shall have the meaning set forth in SECTION
2(B) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of DPL pursuant to the provisions of SECTION 2(B) hereof which covers all of the
Registrable Securities, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended and in effect
from time to time.
"TRUSTEE" shall mean Bank One Trust Company, National Association and any
successor thereto, as trustee under the Indenture.
2. Registration under the Securities Act. (a) Exchange Offer. (i) To
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the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, DPL shall, for the benefit of
the Holders, at DPL's cost, use its reasonable best efforts to (A)
prepare and cause to be filed with the SEC, not later than 120 days
after the Issue Date, an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange
Offer, (B) cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the SEC not later than
180 days after the Issue Date and (C) keep such Exchange Offer
Registration Statement effective for not less than 30 calendar days (or
longer if required by applicable law, and in any event through the
Exchange Period) after the date the Notice of the Exchange Offer is
mailed to the Holders. Upon the effectiveness of the Exchange Offer
Registration Statement, DPL shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder so
electing to exchange Registrable Securities for a like principal amount
of Exchange Notes (assuming that such Holder is not an Affiliate of XXX
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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 calendar days after the date Notice thereof is mailed
to the Holders (or longer if required by applicable law) (such
period referred to herein as the "EXCHANGE PERIOD");
(C) utilize the services of the Depositary for the
Exchange Offer;
(D) permit Holders to withdraw, at any time prior
to the close of business, New York time, on the last Business
Day of the Exchange Period, any Notes tendered for exchange by
sending to the institution specified in the Notice, a
telegram, telex, facsimile transmission or letter, received
before the aforesaid time, setting forth the name of such
Holder, the principal amount of Notes delivered for exchange,
and a statement that such Holder is withdrawing his election
to have such Notes exchanged;
(E) notify each Holder by means of the Notice that
any Note not tendered by such Holder in the Exchange Offer
will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except as
provided herein); and
(F) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
(iii) As soon as practicable after the close of the
Exchange Offer, DPL shall:
(A) accept for exchange all Notes or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer;
(B) deliver, or cause to be delivered, to the
Trustee for cancellation all Notes or portions thereof so
accepted for exchange by DPL; and
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(C) issue, and cause the Trustee to promptly
authenticate and deliver to the Depositary, Exchange Notes
equal in principal amount to the principal amount of the Notes
surrendered by such Holder.
(iv) Interest on each Exchange Note issued pursuant to
the Exchange Offer will accrue from the last date on which interest was
paid on the Note surrendered in exchange therefor or, if no interest
has been paid on such Note, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff of the
SEC, DPL shall use its reasonable best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC and that each Holder tendering
Notes for exchange shall be an Eligible Holder. Each Holder of
Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Notes in the Exchange Offer will be required to
make certain customary representations in connection therewith,
including representations that (A) it is not an Affiliate of DPL, (B)
it is not a broker-dealer tendering Registrable Securities acquired
directly from DPL, (C) the Exchange Notes to be received by it will be
acquired in the ordinary course of its business and (D) at the time of
the Exchange Offer, it has no arrangements or understandings with any
Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes. DPL shall inform the Initial
Purchasers, after consultation with the Trustee, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders in
order to facilitate the tender of Registrable Securities in the
Exchange Offer. 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 under the Securities Act, if
the resales are of Exchange Notes obtained by such Holder in exchange
for Notes acquired by such Holder directly from DPL.
(v) Upon consummation of the Exchange Offer in accordance
with this SECTION 2(A), the provisions of this Agreement shall continue
to apply, mutatis mutandis, solely with respect to Registrable
Securities that are Exchange Notes held by Participating
Broker-Dealers, and DPL shall have no further obligation to register
the Registrable Securities (other than pursuant to SECTION 2(B)(III) or
SECTION 2(B)(IV)) pursuant to SECTION 2(B) of this Agreement.
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(b) Shelf Registration. In the event that (i) DPL is not
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permitted to effect the Exchange Offer because of any change in law or currently
prevailing interpretations of the staff of the SEC, (ii) the Exchange Offer is
not consummated within 210 days after the Issue Date, (iii) (1) the Initial
Purchasers are not permitted, in the reasonable opinion of Pillsbury Winthrop
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 Purchasers request
registration of Registrable Securities held by them and (3) the Initial
Purchasers' 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 reasonably acceptable
to DPL, is not eligible to participate in the Exchange Offer or in the case of
any Holder (other than a Participating Broker-Dealer) that participates in the
Exchange Offer, such Holder does not receive freely tradable Exchange Notes on
the date of the exchange and any such Holder so requests (any of the events
specified in (i), (ii), (iii) or (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 120 days after the Issue Date) a Shelf Registration
Statement providing for the sale by the Holders of all of the Registrable
Securities, and shall use its reasonable best efforts to have such Shelf
Registration Statement declared effective by the SEC as soon as practicable;
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 to promptly furnish to DPL all
information with respect to such Holder necessary to make the information
previously furnished to DPL by such Holder not materially misleading.
DPL agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and usable for resales for the
Rule 144(k) Period (subject to extension pursuant to SECTION 3(T)(D)) or for
such shorter period which will terminate when all of the securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities (the "EFFECTIVENESS
PERIOD"). DPL shall not permit any securities other than Registrable Securities
to be included in the Shelf Registration. DPL will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement and notify each such Holder when the Shelf Registration
has become effective. DPL further agrees, if necessary, to supplement or amend
the Shelf Registration Statement, if required by the rules, regulations or
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instructions applicable to the registration form used by DPL for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and DPL agrees to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. DPL shall pay all Registration Expenses in
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connection with any Registration Statement filed pursuant to SECTION 2(A) or
2(B) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Pillsbury Winthrop LLP, counsel for the Initial Purchasers,
incurred in connection with the Exchange Offer and either Pillsbury Winthrop LLP
or any other single counsel designated in writing by the Majority Holders to act
as counsel for the Holders of the Registrable Securities in connection with a
Shelf Registration Statement, which other counsel shall be reasonably
satisfactory to DPL. Except as provided herein, each Holder shall pay all
expenses of its counsel, underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
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Registration Statement pursuant to SECTION 2(A) hereof or a Shelf Registration
Statement pursuant to SECTION 2(B) hereof (or a combination of the two) will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to such Exchange Offer Registration
Statement or Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Offer Registration Statement or Shelf
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. DPL will be deemed
not to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if it voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or that would result in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such Registrable
Securities during that period, unless such action is required by applicable law.
(e) Additional Interest. If DPL fails to comply with this
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Exchange and Registration Rights Agreement or if the Exchange Offer Registration
Statement or the Shelf Registration Statement fails to become or remain
effective as required by this Exchange and Registration Rights Agreement, then,
as liquidated damages, additional interest ("ADDITIONAL INTEREST") shall become
payable in respect of the Notes as follows:
(i) if the Exchange Offer Registration Statement is not
filed with the SEC on or prior to the 120th day after the Issue Date
or, notwithstanding that DPL has consummated or will consummate an
Exchange Offer, DPL is required to file a Shelf Registration Statement
and such Shelf Registration Statement is not filed on or prior to the
date required by SECTION 2(B) hereof, then, commencing on the day after
the applicable required filing date, Additional Interest shall accrue
on the principal amount of the Notes at a rate of .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) (A) if DPL has not exchanged the Exchange Notes for
the Notes validly tendered, in accordance with the terms of the
Exchange Offer, on or prior to the 210th day after the Issue Date or
(B) during any time an Exchange Offer Registration Statement or a Shelf
Registration Statement ceases to be effective as described in SECTION
2(D), then Additional Interest shall accrue on the principal amount of
Notes, at a rate of .25% per annum, commencing on the 211th day after
the Issue Date, in the case of (A) above, or the day such Registration
Statement ceases to be effective, in the case of (B) above;
provided, however, that the Additional Interest rate on the Notes may not exceed
in the aggregate .50% per annum; provided, further, however, that (1) upon the
filing of the applicable Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration Statement (in the case of clause (ii) above), (3) upon
the exchange of Exchange Notes for all Notes validly tendered (in the case of
clause (iii)(A) above), or upon the effectiveness of any Registration Statement
that had ceased to remain effective (in the case of clause (iii) (B) above), or
(4) upon the expiration of the Rule 144(k) Period, Additional Interest on the
Notes as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to SECTION 2(E)(I),
(II) or (III) above will be payable in cash on the relevant payment dates for
the payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies
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available to the Holders, DPL acknowledges that any failure of DPL to comply
with its obligations under SECTION 2(A) and SECTION 2(B) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the obligations of DPL under
SECTION 2(A) and SECTION 2(B) hereof.
3. Registration Procedures. In connection with the obligations of DPL with
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respect to the Registration Statements pursuant to SECTIONS 2(A) and 2(B)
hereof, DPL shall:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by SECTIONS 2(A) and 2(B) hereof within
the relevant time period specified in SECTION 2 hereof on the appropriate
form(s) under the Securities Act, which form(s) (i) shall be selected by DPL,
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(ii) shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable Securities and
(iii) shall comply as to form in all material respects with the requirements of
the applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith; and use its reasonable
best efforts to cause such Registration Statement(s) to become effective and
remain effective (and, in the case of a Shelf Registration Statement, usable for
resales) in accordance with SECTION 2 hereof; provided, however, that if (1)
such filing is pursuant to SECTION 2(B), or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to SECTION 2(A) is required
to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to 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, reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be, and cause each Prospectus to be
supplemented, if so determined by DPL or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the Securities Act, and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf Registration Statement,
at least three Business Days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and advise
such Holder that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders, (ii) furnish to
each Holder of Registrable Securities included in the Shelf Registration
Statement and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request, in order
to facilitate the public sale or other disposition of the Registrable
Securities, (iii) consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities
included in the Shelf Registration Statement in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto, (iv) after the effective time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable Securities
that is not then identified therein as a selling securityholder, take any action
11
reasonably necessary to enable such Holder to use the Prospectus forming a part
thereof for resales of Registrable Securities, including, without limitation,
any action necessary to identify such Holder as a selling securityholder in the
Shelf Registration Statement, provided, however, that nothing in this clause
(iv) shall relieve any such Holder of the obligation to return a completed and
signed questionnaire to DPL in accordance with the terms hereof and (v) furnish
to each Holder of Registrable Securities upon request, a copy of this Agreement
or, if so requested, a summary thereof if requested by any such Holder;
(d) in the case of a Shelf Registration, register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions of the United States by the time the applicable
Registration Statement is declared effective by the SEC as any Holder of
Registrable Securities covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Securities shall reasonably request
in writing in advance of such date of effectiveness, and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Holder and underwriter to legally consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that DPL shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this SECTION 3(D) or (ii) file any general consent
to service of process in any jurisdiction where it would not otherwise be
subject to such service of process;
(e) (1) in the case of a Shelf Registration or (2) in the
event that Participating Broker-Dealers from whom DPL has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in SECTION 3(T) hereof are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly notify
each Holder of Registrable Securities, or each such Participating Broker-Dealer,
as the case may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the Exchange
Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in SECTION 3(D) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of DPL contained in any purchase agreement, securities sales
agreement or any underwriting agreement entered into as described in SECTION
3(M), cease to be true and correct in all material respects, (v) of the
happening of any event or the failure of any event to occur or the discovery of
any facts or otherwise, (A) which makes any statement made in such Registration
Statement untrue in any material respect or which causes such Registration
Statement to omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case, as of the
time such Registration Statement became effective or (B) which makes any
statement made in a Prospectus untrue in any material respect or which causes
such Prospectus to omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then existing, not
12
misleading, in each case, as of the date of such Prospectus or as of any date on
which a Prospectus is delivered at any time that the related Registration
Statement is required to be effective and (vi) when DPL reasonably determines
that a post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (including all financial statements and
schedules, and, if so requested, documents incorporated therein by reference or
exhibits thereto);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least two
Business Days prior to the closing of any sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified by SECTION
3(E)(II), 3(E)(III), 3(E)(V) or 3(E)(VI) hereof, prepare a supplement or
post-effective amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading; and notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder hereby
agrees to suspend use of the Prospectus until DPL has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated by reference
into a Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders; and make such of the representatives of DPL as shall be
reasonably requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders available for reasonable discussion of such
document;
(k) obtain a CUSIP number for all Exchange Notes, no later
than the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable Securities,
as the case may be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or the Registrable
Securities, as the case may be, and effect such changes to such documents as may
13
be required for them to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such documents
to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in underwritten
offerings and consistent with the terms of the Purchase Agreement and take all
such other appropriate actions in connection therewith as are reasonably
requested in order to expedite or facilitate the registration or the disposition
of the Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration is
with respect to an underwritten offering, if requested by (x) the Initial
Purchasers, in the case where the Initial Purchasers hold Registrable Securities
acquired by them as part of their 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 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
14
Holder of such Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of DPL and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of DPL and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration Statement;
provided, however, that the foregoing inspection and information gathering shall
be coordinated on behalf of all such parties by DPL's designated Holders'
counsel, at the expense of such parties as described in SECTION 2(C) hereof.
Records of DPL and its subsidiaries which DPL determines in good faith to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or omission in
such Registration Statement; provided that DPL shall be consulted prior to any
such disclosure, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding or (iii) the information in
such Records has been made available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it or any Inspector
retained by it as a result of such inspections shall be deemed confidential and
shall not be used by it or any Inspector retained by it as the basis for any
market transactions in the securities of DPL unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to DPL and allow DPL
(at DPL's expense) to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(o) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement is applicable and make generally
available to its security holders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act), no later than 60 days after the end
of any 12-month period (or 120 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of DPL
after the effective date of a Registration Statement, which statements shall
cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by
the Trustee, obtain (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
15
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);
(q) if an Exchange Offer is to be consummated, upon delivery
of the Registrable Securities by Holders to DPL (or to such other Person as
directed by DPL), in exchange for the Exchange Notes, xxxx, or cause to be
marked, on such Registrable Securities delivered by such Holders that such
Registrable Securities are being canceled in exchange for the Exchange Notes,
and in no event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement, (i) (a) indicate in a "Plan of Distribution" section contained in the
Prospectus contained in the Exchange Offer Registration Statement that any
broker or dealer registered under the Exchange Act who holds Notes that are
Registrable Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Registrable
Securities acquired directly from DPL) (such broker or dealer, a "PARTICIPATING
BROKER-DEALER"), may exchange such Notes pursuant to the Exchange Offer;
however, such Participating Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Notes received by such Participating Broker-Dealer in
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Participating Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement and (b) include in such "Plan of
Distribution" section all other information with respect to such resales by
Participating Broker-Dealers that the SEC may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Participating Broker-Dealer or disclose the amount of Exchange Notes held
by any such Participating Broker-Dealer except to the extent required by the
Commission as a result of a change in policy announced after the date of this
Agreement, (ii) furnish to each Participating Broker-Dealer who has delivered to
DPL the notice referred to in SECTION 3(E), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement, including
any preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (DPL hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment or supplement thereto), (iii) use its
16
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;
provided, however, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of SECTION 3(T)(D)
hereof) (the "APPLICABLE PERIOD") and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it is required to deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer,"
and (y) a statement to the effect that, by a Participating Broker-Dealer making
the acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act;
(B) in the case of any Exchange Offer Registration
Statement, deliver to the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if requested by any of the Initial Purchasers 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 Purchasers 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) 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
17
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
Notes and are required to deliver Prospectuses, each Holder agrees that, upon
receipt of any notice from DPL of the occurrence of any event specified in
SECTION 3(E)(II), 3(E)(III), 3(E)(V) or 3(E)(VI) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by SECTION 3(I) hereof or until
it is advised in writing (the "ADVICE") by DPL that the use of the applicable
Prospectus may be resumed, and, if so directed by DPL, such Holder will deliver
to DPL (at DPL's expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If DPL gives any such notice to
suspend the disposition of Registrable Securities or Exchange Notes, as the case
may be, pursuant to a Registration Statement, DPL shall use its best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
and usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when DPL has made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or (y)
the Advice; and
(u) In the event that any broker-dealer registered under the
Exchange Act underwrites any Notes or participate as a member of an underwriting
syndicate or selling group or "assists in the distribution" (within the meaning
of the Conduct Rules (the "RULES") of the NASD) thereof, whether as a Holder of
such Notes or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, DPL will assist such broker-dealer in
complying with the requirements of such Rules, including, without limitation, by
(i) if such Rules, including Rule 2720, so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Notes, to exercise
usual standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten offering
or is made through a placement or sales agent, to recommend the yield of such
Notes, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in SECTION 4 hereof and
(iii) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules.
4. Indemnification and Contribution. (a) DPL agrees to indemnify and
--------------------------------
hold harmless each Holder of the Registrable Securities or Exchange Notes, any
Participating Broker-Dealer (and its partners, directors and officers) and each
person, if any, who controls such Holder or such Participating Broker-Dealer
(and its partners, directors and officers) within the meaning of the Securities
Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such
controlling persons are referred to collectively as the "INDEMNIFIED Parties")
18
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Registrable Securities or Exchange Notes) to which each such Indemnified Party
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, each Indemnified Party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) DPL shall not be liable to a Holder in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to DPL by or on behalf of such Holder expressly for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder or Participating Broker-Dealer from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Registrable Securities or Exchange Notes concerned, to the extent
that a prospectus relating to such Registrable Securities or Exchange Notes was
required to be delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Registrable Securities or Exchange Notes to
such person, a copy of the final prospectus if DPL had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any liability
which DPL may otherwise have to such Indemnified Party. DPL shall also indemnify
underwriters, their partners, officers and directors and each person who
controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Registrable Securities or Exchange Notes
if requested by such Holders.
(b) Each Holder of the Registrable Securities or Exchange
Notes, severally and not jointly, will indemnify and hold harmless DPL and each
person, if any, who controls DPL within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which DPL or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
19
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to DPL by or on behalf of such Holder expressly for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, DPL for any legal or other expenses reasonably incurred
by DPL or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to DPL or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
SECTION 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this SECTION 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than to
the extent the indemnifying party is prejudiced thereby, and in any event shall
not relieve it from liability that it may have otherwise on account of this
indemnity agreement. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who 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. The indemnifying party shall not
be liable for any settlement of any action effected without its consent, but if
any such action is settled with the consent of the indemnifying party or if
there be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action, and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this SECTION 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
parties hereto agree that it would not be just and equitable if contributions
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pursuant to this SECTION 4(D) were determined by pro rata allocation (even if
the Holders or any agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this SECTION 4(D). The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by DPL on the one hand or such Holder or such other indemnified party,
as the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
any other provision of this SECTION 4(D), the Holders of the Registrable
Securities or Exchange Notes shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Registrable Securities or Exchange Notes pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such indemnified
party and each person, if any, who controls DPL within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as
DPL.
(e) The agreements contained in this SECTION 4 shall survive
the sale of the Registrable Securities or Exchange Notes pursuant to a
Registration Statement and shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of any indemnified party.
(f) The remedies provided for in this SECTION 4 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
5. Participation in Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell the
securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of SECTION 3(M) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
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aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to DPL.
7. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as DPL is
------------- ----------------------
subject to the reporting requirements of Section 13 or 15 of the Exchange Act,
any Registrable Securities remain outstanding and to the extent required by Rule
144(k), 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 Registrable Securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to purchasers and prospective
purchasers as is necessary to permit sales of their Registrable Securities
pursuant to Rule 144A under the Securities Act and take such further action as
any Holder of Registrable Securities may reasonably request and (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 that
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or that otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of DPL's other issued
and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of Holders of a majority in
aggregate principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of SECTION 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder.
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 Initial Purchasers, 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
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the Initial Purchasers 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 Purchasers 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 Purchasers and DPL. Each Holder of Registrable Securities shall be
bound by any amendment or waiver effected pursuant to this SECTION 7(C), whether
or not any notice, writing or marking indicating such amendment or waiver
appears on such security or is delivered to such Holder.
(d) Notices. All notices and other communications provided for
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or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to DPL by means
of a notice given in accordance with the provisions of this SECTION 7(D) or in
the absence of such notice, as specified in the Indenture for registered holders
of Notes, which address initially is, with respect to the Initial Purchasers,
the address set forth in the Purchase Agreement and (ii) if to DPL, initially at
DPL's address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
SECTION 7(D).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders, and DPL; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder acquires Registrable Securities
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any
-------------------------
Participating Broker-Dealer shall be a third party beneficiary of the agreements
made hereunder among DPL and the Initial Purchasers shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
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(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 DPL shall
be deemed in every respect effective service of process upon DPL in any such
legal suit, action or proceeding. Nothing herein shall affect the right of the
Initial Purchasers or any person controlling the Initial Purchasers to serve
process in any other manner permitted by law. The provisions of this subsection
(g) shall remain operative and in full force and effect regardless of any
termination of this Agreement, in whole or in part.
(h) Counterparts Facsimile. This Agreement may be executed in
----------------------
any number of counterparts and by the parties hereto in separate counterparts,
and signature pages may be delivered by facsimile, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
-------------
MADE IN THE STATE OF NEW YORK. THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(k) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Securities Held by DPL or its Affiliates. Whenever the
----------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by DPL or any of
its Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Exchange and
Registration Rights Agreement as of the date first written above.
DPL INC.
By: /s/ Xxxxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxxxx X. XxXxxxxx
Title: Group Vice President & CFO
Accepted and delivered as of
the date first above written
XXXXXX XXXXXXX & CO. INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
NATCITY INVESTMENTS, INC.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
25
