SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of
earliest event reported): February 12, 1998
GPU, Inc.
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(Exact name of registrant as specified in charter)
Pennsylvania 1-6047 13-5516989
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(State or other (Commission (IRS employer
jurisdiction of file number) identification no.)
incorporation)
300 Madison Avenue, Morristown, New Jersey 07962-1911
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (973) 455-8200
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ITEM 5. OTHER EVENTS
On February 12, 1998, GPU, Inc. (the "Company") entered into
an Underwriting Agreement with Goldman, Sachs & Co., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co. Incorporated, as representatives of the several
underwriters, including themselves, named in Schedule A thereto (the
"Underwriters"), providing for the issuance and sale of 6.1 million
shares of the Company's Common Stock, par value $2.50 per share. Under
the Underwriting Agreement, the Underwriters have a 30-day option to
purchase up to an additional 900,000 shares of Common Stock to cover
over-allotment, if any. Reference is made to the Company's Prospectus
dated February 12, 1998 for further information regarding the
offering, including the use of proceeds.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(c) Exhibits
Underwriting Agreement dated February 12, 1998, between GPU,
Inc. and Goldman Sachs & Co., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co., as representatives.
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SIGNATURE
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT
OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY AUTHORIZED.
GPU, INC.
By:______________________________
T.G. Howson
Vice President and Treasurer
Date: February 13, 1998
EXHIBIT TO TO FILED BY EDGAR
EXHIBITS
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(c) Exhibits
Underwriting Agreement dated February 12, 1998, between GPU,
Inc. and Goldman Sachs & Co., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan
Stanley & Co., as representatives.
6,100,000 Shares
GPU, INC.
(a Pennsylvania corporation)
Common Stock
($2.50 Par Value)
UNDERWRITING AGREEMENT
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February 12, 1998
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
As Representatives of the several Underwriters
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
GPU, Inc., a Pennsylvania corporation (the Company ), confirms
its agreement with Goldman, Sachs & Co., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated and each of the other Underwriters, if any, named in
Schedule A hereto (collectively, the "Underwriters," which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representatives (in
such capacity, you shall hereinafter be referred to as the
"Representatives"), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, $2.50 par value per
share, of the Company (the "Common Stock") set forth in Schedule A
hereto. The shares of Common Stock to be purchased by the Underwriters
as set forth in Schedule A are hereinafter called the "Firm
Securities". The Company also proposes to issue and sell to the
several Underwriters not more than an additional 900,000 shares of its
Common Stock (the "Additional Securities") if and to the extent that
the Representatives, on behalf of the Underwriters, shall have
determined to exercise the right to purchase the Additional Securities
pursuant to Section 2 hereof. The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the
"Securities."
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 333-10485), as amended by Amendment No. 1 thereto, relating to
the Securities under the Securities Act of 1933, amended (the
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"1933 Act"). Such registration statement, as so amended, has been
declared effective by the Commission. Such registration statement, as
so amended, and the prospectus constituting a part thereof (including
in each case all documents incorporated by reference therein or deemed
to be incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act (the "Incorporated Documents")) as from time to
time hereafter amended or supplemented pursuant to the 1933 Act, the
rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), the Securities Exchange Act of 1934, as amended
(the "1934 Act"), or the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), are hereinafter referred to
as the "Registration Statement" and the "Basic Prospectus,"
respectively, except that if any revised prospectus shall be provided
to the Underwriters by the Company for use in connection with the
offering of the Securities that differs from the Basic Prospectus on
file at the Commission at the time the Registration Statement became
effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Basic Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the
Underwriters for such use. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically
relating to the Securities transmitted for filing to the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations. The term
"preliminary prospectus" means the Basic Prospectus together with a
preliminary prospectus supplement specifically relating to the
Securities transmitted for filing to the Commission pursuant to Rule
424(b) of the 1933 Act Regulations. References to the terms
"Registration Statement," "Basic Prospectus," "preliminary prospectus"
and "Prospectus" shall, unless otherwise specified, be deemed to refer
to the Registration Statement, the Basic Prospectus, any preliminary
prospectus and the Prospectus as amended or supplemented to the date
of this Agreement.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus (and all other references of
like import) shall be deemed to mean and include all such financial
statements and schedules and other information that is or is deemed to
be incorporated by reference in the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, and all references in this Agreement to amendments or
supplements to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to mean and
include the filing of any Incorporated Document.
SECTION 1. Representations and Warranties. (a) The
Company represents and warrants to each Underwriter as of the
date of this Agreement as follows:
(i) The Registration Statement, at the time it was declared
effective by the Commission under the 1933 Act and at each date
any post-effective amendment or post-effective
amendments thereto became or becomes effective (the "Effective
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Date"), complied or will comply and, as of the date of this
Agreement, complies in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations. Each
preliminary prospectus and the Prospectus, when transmitted for
filing by the Company with the Commission pursuant to Rule 424(b)
of the 1933 Act Regulations, complied or will comply in all
material respects with the applicable requirements of the 1933
Act and the 1933 Act Regulations. The Registration Statement, at
the Effective Date, did 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. Any preliminary prospectus, at the time that it was
delivered to the Underwriters for their use in marketing the
Securities, did not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The Prospectus, at the time
it was first provided to the Underwriters for use in connection
with the offering of the Securities, did not, and, as of the
Closing Time (as defined in Section 2(c) hereof) and, in respect
of Additional Securities, as of the Option Closing Time (as
defined in Section 2(c) hereof), will not, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
The Incorporated Documents, at the time they were or hereafter
are filed with the Commission, complied or will comply in all
material respects with the applicable requirements of the 1934
Act and the 1934 Act Regulations, and, when read together with
the other information in the Basic Prospectus at the Effective
Date, any preliminary prospectus, at the time that it was
delivered to the Underwriters for their use in marketing the
Securities, and the Prospectus at the date hereof and at the
Closing Time or the Option Closing Time, as the case may be, do
not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made
in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through any
Representative expressly for use in the Registration Statement or
the Prospectus, but nothing contained herein is intended as a
waiver of compliance with the 1933 Act, the 1934 Act, the 1933
Act Regulations or the 1934 Act Regulations.
(ii) The accountants who certified the financial statements
and supporting schedules included or incorporated
by reference in the Prospectus are independent certified
accountants (the "Independent Accountants") with respect to the
Company within the meaning of the 1933 Act and the 1933
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Act Regulations.
(iii) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company
and its subsidiaries as at the dates indicated and the results of
their operations for the periods specified; except as otherwise
stated in the Registration Statement, such financial statements
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change, nor any development involving a prospective material
adverse change, in the financial or business condition or in the
earnings or business of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, that are material
with respect to the Company and its subsidiaries considered as
one enterprise and (C) except for regular quarterly dividends,
there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(v) The Company is duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania with corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the
financial or business condition or the earnings or business of
the Company and its subsidiaries considered as one enterprise.
(vi) Each of Jersey Central Power & Light Company,
Metropolitan Edison Company, Pennsylvania Electric Company, GPU
International, Inc., GPU Power, Inc. and GPU Electric, Inc.
(collectively, the "Significant Subsidiaries") is duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required,
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whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would
not have a material adverse effect on the financial or business
condition or the earnings or business of the Company and its
subsidiaries considered as one enterprise; and all of the issued
and outstanding capital stock of each of the Significant
Subsidiaries has been duly authorized and validly issued, is
fully paid and non-assessable and, other than the preferred stock
of certain of the Significant Subsidiaries, is owned by the
Company directly, free and clear of any security interest,
mortgage, pledge, lien or claim.
(vii) The authorized, issued and outstanding capital stock of
the Company are as set forth in the Prospectus under "Certain
Consolidated Financial Information" and "Description of the
Common Stock" (except for subsequent issuances, if any, pursuant
to such reservations, agreements, employee and director benefit
plans or the Company s Dividend Reinvestment and Stock Purchase
Plan as are referred to in the Prospectus); the shares of issued
and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; the
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against
payment of the consideration therefor, will be validly issued and
fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectus under
footnote (4) of "Certain Consolidated Financial Information" and
"Description of the Common Stock"; and the issuance of the
Securities pursuant to this Agreement is not subject to
preemptive or other similar rights.
(viii) Neither the Company nor any of the Significant
Subsidiaries is in violation of its Articles of Incorporation or
Certificate of Incorporation, as the case may be, or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the Significant
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company
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or any of the Significant Subsidiaries is subject; and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate action of
the Company and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any of the Significant Subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of the
Significant Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the
Company or any of the Significant Subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Articles of Incorporation or By-Laws of the Company or any
applicable law, administrative or court decree or, to the best
knowledge of the Company, any administrative regulation.
(ix) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened, against
the Company or any of the Significant Subsidiaries, that is
required to be disclosed in the Registration Statement, or which,
if adversely decided, would result in any material adverse change
in the financial or business condition or in the earnings or
business of the Company and its subsidiaries considered as one
enterprise, or which, if adversely decided, would materially and
adversely affect the properties or assets thereof or would
materially and adversely affect the consummation of the
transactions contemplated by this Agreement other than such
actions, suits or proceedings that are disclosed in or
contemplated by the Registration Statement; and there are no
contracts or documents of the Company or any of its subsidiaries
that are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations that
have not been so filed.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the issuance and sale by the Company of the Securities hereunder,
except such as may be required under the 1933 Act or the 1933 Act
Regulations, the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), which, in each case, have been
obtained, or state securities laws.
(xi) The Company and the Significant Subsidiaries possess
such certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies except such as to which the failure to possess the same
would not materially and adversely affect the financial or
business condition or the earnings or business of the Company and
its Significant Subsidiaries considered as one enterprise and
neither the Company nor any of the Significant Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of
any such certificate, authority or permit that, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the financial or
business condition or the earnings or business of the Company and
its subsidiaries considered as one enterprise.
(b) Any certificate signed by any officer of the Company
and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter
agrees to purchase from the Company, at a purchase price of $38.4925
per share, the number of Firm Securities set forth in Schedule A
hereto opposite the name of such Underwriter, plus any additional
number of Firm Securities which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
the Company agrees to sell to each of the Underwriters, and the
Underwriters shall have a one-time right to purchase from the Company,
severally and not jointly, at a purchase price of $38.4925 per share,
in the aggregate up to 900,000 Additional Securities. If the
Representatives, on behalf of the Underwriters, elect to exercise such
option, the Representatives shall so notify the Company in writing not
later than 30 days after the date of this Agreement, but at any time
within such 30 days, which notice shall specify the number of
Additional Securities to be purchased by the Underwriters and the time
and date on which such shares are to be purchased. Such date may be
the same as the Closing Time but shall in no event be earlier than the
Closing Time nor later than ten business days after the date of such
notice. Additional Securities may be purchased as provided in Section
2(c) hereof solely for the purpose of covering over-allotments made in
connection with the public offering of the Firm Securities. If any
Additional Securities are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Additional
Securities (subject to such adjustments to eliminate fractional shares
as you may determine) that bears the same proportion to the total
number of Additional Securities to be purchased as the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule
A hereto bears to the total number of Firm Securities.
(b) The Company has been advised by the Representatives that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered. The Company has further been advised by
the Representatives that the Underwriters propose to initially offer
the Securities to the public at the public offering price of $39.5625
per share.
(c) Payment of the purchase price for, and delivery of
certificates for, the Firm Securities shall be made at the office of
Berlack, Israels & Liberman LLP, 120 West 45th Street, New York, New
York 10036, or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 A.M. on February 19, 1998
(unless postponed in accordance with the provisions of Section 10
hereof), or such other time not later than five business days after
such date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein
called the Closing Time ). Payment shall be made to the Company by
wire transfer in immediately available funds against delivery to the
Representatives for the respective accounts of the Underwriters of
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certificates for the Firm Securities to be purchased by them. Payment
of the purchase price for, and delivery of certificates for, any
Additional Securities shall be made as provided above except that the
time and date for such payment and delivery shall be designated in the
written notice from the Representatives to the Company (the "Option
Closing Time") referred to in Section 2(a) hereof.
Certificates for the Securities shall be in such denominations
and registered in such names as the Representatives may request in
writing at least two business days before the Closing Time or the
Option Closing Time, as the case may be. It is understood that each
Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase
price for, the Securities that it has agreed to purchase. Goldman,
Sachs & Co., individually and not as a representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter
whose funds have not been received by the Closing Time or the Option
Closing Time, as the case may be, but such payment shall not relieve
such Underwriter from its obligations hereunder. The certificates for
the Securities will be made available for examination and packaging by
the Representatives not later than 10:00 A.M. on the last business day
prior to the Closing Time or the Option Closing Time, as the case may
be, at the office of ChaseMellon Shareholder Services, L.L.C., 450
West 33rd Street New York, NY 10001.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) The Company will notify the Representatives immediately (i)
of the effectiveness of any amendment to the Registration Statement,
(ii) of the transmittal to the Commission for filing of any supplement
to the Prospectus, (iii) of the receipt of any comments from the
Commission, (iv) of any request by the Commission for any amendment to
the Registration Statement, any amendment or supplement to the
Prospectus or for additional information and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) During the period referred to in Section 3(e) hereof,
the Company will give the Representatives notice of its intention to
file any amendment (including any post-effective amendment) to the
Registration Statement or any amendment or supplement to the
Prospectus and will furnish the Representatives with copies of any
such amendment or supplement within a reasonable amount of time prior
to such proposed filing or use, as the case may be, and, prior to the
Option Closing Time, will not file any such amendment or supplement or
use any such prospectus to which the Representatives or counsel for
the Underwriters shall reasonably object in writing.
(c) The Company will deliver to the Representatives a conformed
copy of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated
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by reference therein) for each of the Underwriters.
(d) The Company will furnish to the Representatives for use by
the Underwriters, from time to time during the period referred to in
Section 3(e) hereof, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request
for the purposes contemplated by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations.
(e) If, during such period (not in excess of nine months) after
the first date of the public offering of the Securities as in the
opinion of counsel for the Underwriters a prospectus covering the
Securities is required by law to be delivered in connection with sales
of the Securities by any Underwriter or any dealer, any event shall
occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the
Prospectus so that, as so amended or supplemented, the Prospectus will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time it is delivered to
a purchaser, not misleading, and the Company will furnish to the
Representatives for use by the Underwriters a reasonable number of
copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may reasonably designate.
In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in
effect until the distribution of all of the Securities has been
completed. Notwithstanding the foregoing, the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service
of process.
(g) The Company will make generally available to its
security holders as soon as practicable, but not later than 60 days
after the close of the period covered thereby, an earning statement
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the Effective Date of
the Registration Statement, which earning statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933
Act Regulations and which need not be certified by independent public
accountants unless required by the 1933 Act.
(h) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(i) The Company will prepare, and transmit for filing with the
Commission not later than the second business day following execution
and delivery of this Agreement in accordance with Rule 424(b) of the
1933 Act Regulations, the Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives.
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(j) The Company, during the period referred to in Section 3(e)
hereof, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. Except as otherwise provided in
this Agreement, the Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (a) the
printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (b) the reproduction of this Agreement,
(c) the preparation, issuance and delivery of the certificates for the
Securities, (d) the fees and disbursements of the Company s counsel
and the Independent Accountants, (e) the qualification of the
Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation, reproduction and delivery of a
blue sky survey to the Underwriters (not to exceed in the aggregate
$7,500), (f) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each
amendment thereto, of any preliminary prospectuses, and of the
Prospectus and any amendments or supplements thereto and (g) the fees
and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange.
If this Agreement is terminated by the Representatives or by the
Company in accordance with the provisions of Section 5 hereof, the
Company shall reimburse the Underwriters for all of their reasonable
out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. (A) Conditions of Underwriters Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy,
truth and correctness, at the date of this Agreement and at the
Closing Time and the Option Closing Time, if any, of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective.
No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission and at the Closing
Time and at the Option Closing Time, as the case may be, an
appropriate order or orders of the Commission under the 1935 Act
authorizing the issuance and sale of the Securities shall be in full
force and effect. The Prospectus shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period and prior to the Closing
Time and the Company shall have provided evidence satisfactory to the
Representatives of such timely filing.
(b) At the Closing Time and the Option Closing Time, as the case
may be, the Representatives shall have received:
(1) The favorable opinion, dated as of the Closing Time
or the Option Closing Time, as the case may be, of Berlack,
Israels & Liberman LLP, counsel for the Company, in form and
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substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company is duly incorporated and is validly
existing as a corporation in good standing under the laws of
the Commonwealth of Pennsylvania and has corporate authority
to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in the State of New Jersey;
(ii) The authorized, issued and outstanding capital
stock of the Company are as set forth in the Prospectus
under "Certain Consolidated Financial Information" and
"Description of the Common Stock" (except for subsequent
issuances, if any, pursuant to such reservations,
agreements, employee and director benefit plans or the
Company's Dividend Reinvestment and Stock Purchase Plan as
are referred to in the Prospectus), and the shares of issued
and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable;
(iii) The Firm Securities or the Additional Securities,
as the case may be, have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this
Agreement against payment therefor, will be validly issued
and fully paid and non-assessable;
(iv) The issuance of the Firm Securities or the
Additional Securities, as the case may be, pursuant to this
Agreement is not subject to preemptive or other
similar rights arising under the Pennsylvania Business
Corporation Law or under the Articles of Incorporation
or By-Laws of the Company;
(v) Each Significant Subsidiary of the Company is duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus and, to the best of such
counsel's knowledge, each such Significant Subsidiary (other
than GPU International, Inc., GPU Power, Inc. and GPU
Electric, Inc.) is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to be so qualified would not have a
material adverse effect on the financial or business
condition or the earnings or business of such Significant
Subsidiaries; and all of the issued and outstanding common
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stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and, to the best of such counsel's knowledge,
is owned by the Company directly, free and clear of any
security interest, mortgage, pledge, lien or claim;
(vi) This Agreement has been duly authorized, executed
and delivered by the Company;
(vii) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission;
(viii) The Registration Statement, at the Effective
Date, and the Prospectus, at the date it was transmitted for filing to
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations and
as of the Closing Time or the Option Closing Time, as the case may be
(other than the financial statements and supporting schedules and
other financial or statistical data included or incorporated by
reference therein, as to which no opinion need be rendered), complied
as to form in all material respects with the applicable requirements
of the 1933 Act and the 1933 Act Regulations; and the Incorporated
Documents, at the time they were filed with the Commission, complied
as to form with the applicable requirements of the 1934 Act and the
1934 Act Regulations;
(ix) The Common Stock conforms to the description
thereof contained in the Prospectus under the caption
"Description of the Common Stock," and the form of
certificate used to evidence the Common Stock is in due
and proper form and complies with all applicable
statutory requirements;
(x) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened
against the Company that are required to be disclosed in the
Prospectus other than those disclosed therein;
(xi) To the best of such counsel's knowledge, there are
no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be filed as exhibits
to the Registration Statement other than those filed or
incorporated by reference as exhibits thereto; and
(xii) No authorization, approval, consent or order of any
court or governmental authority or agency is required in
connection with the issuance and sale of the Securities to
the Underwriters, except such as may be required under the
1933 Act or the 1933 Act Regulations, the 1935 Act (which
12
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order has been obtained and is in full force and effect) or
state securities laws; the execution and delivery of this
Agreement and the consummation of the transactions
contemplated herein will not result in any violation of the
provisions of the Articles of Incorporation or ByLaws of the
Company, and, to the best of such counsel s knowledge, will
not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its Significant Subsidiaries pursuant to,
any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any
of its Significant Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or
assets of the Company or any of its Significant Subsidiaries
is subject nor will such action result in any violation of
any law or administrative regulation applicable to the
Company or administrative or court decree binding upon the
Company.
In giving such opinion, Berlack, Israels & Liberman LLP
may rely (i) as to matters of Pennsylvania law and legal
conclusions based thereon regarding Metropolitan Edison Company,
upon the opinion of Ryan, Russell, Ogden & Seltzer LLP, Reading,
Pennsylvania, dated as of the Closing Time or the Option Closing
Time, as the case may be, addressed to it and attached to such
opinion, (ii) as to all other matters of Pennsylvania law and
legal conclusions based thereon, upon the opinion of Ballard
Spahr Andrews & Ingersoll, Philadelphia, Pennsylvania, dated as
of the Closing Time or the Option Closing Time, as the case may
be, addressed to it and attached to such opinion, and (iii) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and its subsidiaries and
public officials.
(2) The favorable opinion, dated as of the Closing Time
or the Option Closing Time, as the case may be, of Winthrop,
Stimson, Putnam & Roberts, counsel for the Underwriters, with
respect to the matters set forth in paragraphs (iii), (vi),
(vii), (viii) and (ix) of subsection (b)(1) of this Section 5(A),
except that, with respect to the matters referred to in paragraph
(ix), no opinion need be expressed as to whether any of the
Company's outstanding shares of Common Stock, other than the
Securities, have been duly authorized or validly issued or are
fully paid or non-assessable.
In giving such opinion, Winthrop, Stimson, Putnam &
Roberts may rely (i) as to all matters of Pennsylvania law and
legal conclusions based thereon, upon the opinion of Ballard
Spahr Andrews & Ingersoll, Philadelphia, Pennsylvania, referred
to in the last paragraph of subsection (b)(1) of this Section
5(A), dated as of the Closing Time or the Option Closing Time, as
the case may be, and (ii) as to matters of fact, to the extent
13
<PAGE>
deemed proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(3) In giving their opinions required by subsections
(b)(1) and (b)(2), respectively, of this Section 5(A), Berlack,
Israels & Liberman LLP and Winthrop, Stimson, Putnam & Roberts
shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement (except for financial statements and supporting
schedules and other financial or statistical data included or
incorporated by reference therein, as to which each such counsel
need make no statement), at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus
(except for financial statements and supporting schedules and
other financial or statistical data included or incorporated by
reference therein, as to which each such counsel need make no
statement), at the date it was transmitted for filing to the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations
and as of the Closing Time or the Option Closing Time, as the
case may be, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) At the Closing Time and the Option Closing Time, if
any, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Registration
Statement and the Prospectus except as otherwise
stated or contemplated therein, any material adverse change, or any
development involving a prospective material adverse change, in the
financial or business condition or in the earnings or business of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or
a Vice President of the Company and of the Chief Financial or Chief
Accounting Officer of the Company, dated as of the Closing Time or the
Option Closing Time, as the case may be, to the effect that (i) there
has been no such material adverse change or development involving a
material adverse change, (ii) the representations and warranties in
Section l hereof are accurate, true and correct in all material
respects with the same force and effect as though expressly made at
and as of the Closing Time or the Option Closing Time, as the case may
be, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
the Closing Time or the Option Closing Time, as the case may be, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been initiated or, to the best of their knowledge, threatened by the
Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from the Independent Accountants a
14
<PAGE>
letter dated the date of this Agreement, in form and substance
satisfactory to the Representatives, confirming, through a specified
date not more than five days prior to the date of this Agreement, that
they are independent certified accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act and the 1933
Act Regulations and stating in effect that (i) in their opinion, the
financial statements and supplemental schedules of the Company and its
subsidiaries audited by them and incorporated by reference in the
Prospectus and included or incorporated by reference in the Company s
most recent Annual Report on Form 10-K comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, (ii) on the basis of (1) procedures performed, as
specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No.
71, Interim Financial Information, on the unaudited balance sheets and
related unaudited condensed statements of income, retained earnings
and cash flows of the Company incorporated by reference in the
Registration Statement and included in the Company s quarterly reports
on Form 10-Q for the quarters ended March 31, June 30 and September
30, 1997 (collectively, the Form 10-Qs ), (2) a reading of the latest
unaudited operating revenues and net income included or incorporated
by reference in the Prospectus, (3) a reading of the minutes of the
meetings of the stockholders and the Board of Directors as set forth
in the minute books since December 31, 1996 and (4) inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance with
generally accepted auditing standards and would not necessarily
reveal matters of significance with respect to the comments made
in such letter, and accordingly that the Independent Accountants make
no representations as to the sufficiency of such procedures for
the Representatives purposes), nothing has come to their attention
that caused them to believe that (A) the unaudited financial
statements included in the Form 10-Qs do not comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, or that any material modifications should be
made to said unaudited financial statements for them to be in
conformity with generally accepted accounting principles or
(B) on the date of the latest available financial statements
and on a specified date not more than five days prior to the date
of this Agreement, as the case may be, there was any change in
the common stock, cumulative preferred stock without
mandatory redemption, cumulative preferred stock with mandatory
redemption, subsidiary-obligated mandatorily redeemable preferred
securities or long-term debt (except for such stock and long-term debt
acquired for sinking fund purposes or redeemed pursuant to sinking
fund provisions, or changes in obligations under capital leases
incurred in the ordinary course of the Company's business and the
amortization of discounts and premiums or as otherwise stated in such
letter), of the Company or any decrease in its net assets (except as
occasioned by the declaration of dividends), in each case as compared
15
<PAGE>
with the amounts shown in the most recent balance sheet included in
the most recent Form 10-K or Form 10-Q, except in all instances for
changes or decreases that the Registration Statement discloses have
occurred or may occur and (iii) on the basis of a reading of the
latest unaudited operating revenues and net income for the most recent
12-month period included or incorporated by reference in the
Registration Statement, they have derived such financial information
from the audited and unaudited financial statements included in the
Form 10-K or the Form 10-Qs incorporated by reference in the
Registration Statement. Such letter shall also cover such other
matters as the Representatives may reasonably request.
(e) At the Closing Time and the Option Closing Time, if any, the
Representatives shall have received from the Independent Accountants a
letter, dated as of the Closing Time, or the Option Closing Time, as
the case may be, in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (d) of this Section
5(A), except that the specified date referred to therein shall be a
date not more than five days prior to the Closing Time or the Option
Closing Time, as the case may be.
(f) At the Closing Time and the Option Closing Time, if any,
counsel for the Underwriters shall have been furnished with such
documents as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to counsel for the Underwriters.
(g) At the Closing Time, the Securities shall have been approved
for listing on the New York Stock Exchange upon notice of issuance.
If any condition specified in this Section 5(A) shall not have
been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Representatives by notice to the Company at
any time at or prior to the Closing Time or the Option Closing Time,
as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Sections 4 and 6
hereof.
(B) Conditions of the Company s Obligations. The obligations of
the Company hereunder are subject to the performance of the
Underwriters of their obligations hereunder and to the following
additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(b) There shall be in full force and effect appropriate orders of
the Commission under the 1935 Act authorizing the issuance and sale of
the Securities.
16
<PAGE>
If any condition specified in this Section 5(B) shall not have
been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Company by notice to the Representatives at
any time at or prior to the Closing Time or the Option Closing Time,
as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Sections 4 and 6
hereof.
SECTION 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter, its officers, directors, employees
and agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever, based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable fees
and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever, based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through any
Representative expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); provided further, however, that
17
<PAGE>
this indemnity shall not inure to the benefit of any Underwriter, its
officers, directors, employees and agents and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act on account of any loss, liability,
claim, damage or expense arising from the sale of the Securities to
any person if a copy of the Prospectus, as the same may be
supplemented or amended (excluding, however, any Incorporated
Document), was not sent or given by or on behalf of such Underwriter
to such person with or prior to the written confirmation of the sale
involved and the alleged omission or alleged untrue statement was
corrected in the Prospectus as supplemented or amended at the time of
such confirmation, unless the failure to send or give the Prospectus
as so amended or supplemented resulted from the Company s failure to
comply with Section 3(e) hereof.
(b) Each Underwriter, acting severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, employees, agents and
each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred,
but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through any Representative expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
In case any action shall be brought against the Company or any person
so indemnified based on the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) and in respect of which indemnity may
be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each
person so indemnified shall have the rights and duties given to the
Underwriters in each case by the provisions of subsection (a) of this
Section 6.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability that it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it reasonably
satisfactory to such indemnified parties in such action. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection
18
<PAGE>
with such action; provided, however, that if such indemnified parties
reasonably object to such assumption on the ground that there may be
legal defenses available to them that are different from or in
addition to those available to such indemnifying party, then the
reasonable fees and expenses of separate counsel for the indemnified
parties shall be paid or reimbursed by the indemnifying parties and
such fees and expenses shall be paid or reimbursed as they are
incurred; provided further, however, that in no event shall the
indemnifying parties be liable for the fees and expenses of more than
one counsel (excluding local counsel) for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the fourth sentence of
this paragraph (c), the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 claims that are the subject matter of
such proceeding.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 hereof is for any reason held to
be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more Underwriters in respect of
such offering in such proportions as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand so that each Underwriter is responsible
for that portion represented by the percentage that the total
commissions and underwriting discounts received by such Underwriter to
the date of such liability bears to the total sales price received by
the Company from the sale of Securities to the date of such liability,
and the Company is responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
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<PAGE>
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company on the one hand or such Underwriters on the other and the
parties relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. The Underwriters respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the respective number of Securities they have purchased
hereunder, and not joint.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters 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 the preceding paragraph of this Section 7. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement. The Representatives, in
consultation with the other Underwriters, may terminate this
Agreement, by notice to the Company, at any time at or prior to the
Closing Time or the Option Closing Time, as the case may be, (a) if
there has occurred any outbreak of hostilities, or escalation thereof,
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or any change in financial markets or other calamity or crisis that,
in the judgment of Goldman, Sachs & Co., is material and adverse, (b)
if trading in the Common Stock has been suspended by the Commission,
or trading of any securities of the Company has been suspended on any
exchange or in any over-the-counter market, or trading generally on
the New York Stock Exchange has been suspended, or there shall have
been established any general limitation on prices for such trading or
any general restrictions on the distribution of securities by such
Exchange or by order of the Commission or any other governmental
authority, (c) if a banking moratorium has been declared by either
Federal or New York authorities or (d) if there has occurred any
material adverse change, or any development involving a prospective
material adverse change, in the financial or business condition or in
the earnings or business of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and in the case of any of the events specified in
clauses (a) through (d), such event, singly or together with any other
such event, makes it, in the judgment of Goldman, Sachs & Co.,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus or to enforce contracts for the
sale of the Securities. If this Agreement is terminated pursuant to
this Section 9, such termination shall be without liability of any
party to any other party except as provided in Sections 4 and 6
hereof.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time or the Option
Closing Time, as the case may be, to purchase the Securities that it
or they are obligated to purchase under this Agreement on such date
(the Defaulted Securities ), the Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in
such amounts as may be agreed upon and upon the terms herein set
forth; provided, however, that if the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) If the number of Defaulted Securities does not exceed 10% of
the Securities to be purchased on such date, the non-defaulting
Underwriters shall be severally obligated to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters as set forth in Schedule A hereto;
provided, however, that in no event shall the amount of Securities
that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 10 by an amount in excess of
1/9th of such amount without the written consent of such Underwriter.
(b) If the number of Defaulted Securities exceeds 10% of the
Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company, except with respect to the payment of
expenses to be borne by the Company and the Underwriters as provided
in Section 4 hereof and the indemnities of the Company and the
Underwriters contained in Section 6 hereof; provided, however, that if
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such date is an Option Closing Date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation to purchase
Additional Securities or (ii) purchase not less than the number of
Additional Securities that such non-defaulting Underwriters would have
been obligated to purchase in the absence of such default.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either the Representatives or the
Company shall have the right to postpone the Closing Time or the
Option Closing Time, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or the Prospectus, or any supplements or amendments thereto,
or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if hand delivered, mailed or transmitted by telecopy
confirmed in writing. Notices to the Underwriters shall be
directed to the Representatives, c/o Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004 Attention: Registration Department;
notices to the Company shall be directed to it to the attention of
Terrance G. Howson, Vice President and Treasurer, GPU Service, Inc.,
310 Madison Avenue, Morristown, New Jersey 07962-1957, with a copy
thereof to Douglas E. Davidson, Esq., Berlack, Israels & Liberman LLP,
120 West 45th Street, 29th Floor, New York, New York 10036.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons, officers,
directors, employees and agents referred to in Section 6 hereof and
their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective successors, and said
controlling persons, officers, directors, employees and agents and
their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such
State. Specified times of day refer to New York City time.
22
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Company in accordance
with its terms.
Very truly yours,
GPU, INC.
By /s/ Terrance G. Howson
--- ------------------
Name: Terrance G. Howson
Title: Vice President & Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
By: Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
--- --------------------
(Goldman, Sachs & Co.)
For themselves and as Representatives of the other Underwriters named
in Schedule A hereto.
23
<PAGE>
SCHEDULE A
Number of Firm
Underwriter Securities
-----------
Goldman, Sachs & Co. 1,370,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 1,370,000
Morgan Stanley & Co. Incorporated 1,370,000
ABN AMRO Chicago Corporation 95,000
Chase Securities Inc. 95,000
CIBC Oppenheimer Corp. 95,000
Credit Lyonnaise Securities (USA) Inc. 95,000
Credit Suisse First Boston Corporation 95,000
Donaldson, Lufkin & Jenrette Securities Corporation 95,000
A.G. Edwards & Sons, Inc. 95,000
EVEREN Securities, Inc. 95,000
J.P. Morgan Securities Inc. 95,000
PaineWebber Incorporated 95,000
SBC Warburg Dillon Read Inc. 95,000
Smith Barney Inc. 95,000
Societe Generale Securities Corporation 95,000
UBS Securities LLC 95,000
Advest, Inc. 60,000
Janney Montgomery Scott, Inc. 60,000
Edward D. Jones & Co., L.P. 60,000
Legg Mason Wood Walker, Incorporated 60,000
McDonald & Company Securities, Inc. 60,000
Piper Jaffray Inc. 60,000
Tucker Anthony Incorporated 60,000
Wheat, First Securities, Inc. 60,000
BNY Capital Markets, Inc. 30,000
HSBC Securities, Inc. 30,000
Paribas Corporation 30,000
Pryor, McClendon, Counts & Co., Inc. 30,000
Muriel Siebert & Co., Inc. 30,000
The Williams Capital Group, L.P.q 30,000
------
Total 6,100,000
