Exhibit 1
GPU, Inc.
$------------- % Debentures, Series A due ---------
$------------- % Debentures, Series B due ---------
Underwriting Agreement
New York, New York
, 2000
Salomon Smith Barney Inc.
As Representative of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
GPU, Inc., a corporation organized under the laws of Pennsylvania (the
"Company"), proposes to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you (the "Representative") are acting as
representative, $----------- principal amount of its ---% Debentures, Series A
due ------ (the "Series A Debentures") and $------- principal amount of its ---%
Debentures, Series B due ----- (the "Series B Debentures" and, collectively with
the Series A Debentures, the "Securities"), to be issued under an indenture (the
"Indenture") to be dated as of ------------, 2000, between the Company and
United States Trust Company, as trustee (the "Trustee"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representative as used herein shall mean you, as Underwriter, and the terms
Representative and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of any Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants to,
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and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (file number 333-07895)
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on Form S-3, including a related preliminary prospectus, for registration
under the Act of the offering and sale of the Securities. The Company has
filed one or more amendments thereto, including a related preliminary
prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: either
(1) prior to the Effective Date of such registration statement, a further
amendment to such registration statement, including the form of final
prospectus or (2) after the Effective Date of such registration statement,
a final prospectus in accordance with Rules 430A and 424(b). In the case
of clause (2), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included
in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representative shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Prospectus
(and any supplements thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the
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Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
(c) The Securities have been duly authorized and will, when issued
and paid for as contemplated in this Agreement and duly authenticated by
the Trustee under the Indenture, be legal, valid and binding obligations
of the Company enforceable in accordance with their terms (except as
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting the enforcement of creditors' rights
and by general principles of equity) and will be entitled to the security
afforded by the Indenture.
(d) PricewaterhouseCoopers LLP, the accountants who certified the
financial statements included or incorporated by reference in the
Prospectus, are independent certified accountants with respect to the
Company within the meaning of the Securities Act and the respective rules
thereunder (hereinafter, the "Independent Accountants").
(e) The Company is duly incorporated and validly subsisting 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 condition,
financial or otherwise, or the earnings, business affairs, business
prospects or properties of the Company and its subsidiaries, taken as a
whole.
(f) Each of Jersey Central Power & Light Company, Metropolitan
Edison Company, Pennsylvania Electric Company, [GPU Nuclear, Inc.,] GPU
Capital, Inc. [and] GPU Electric, Inc., [GPU International, Inc., GPU
Power, Inc., GPU Telecom Services, Inc. and Midlands Electricity plc] (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, 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 condition,
financial or otherwise, or the earnings, business affairs, business
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prospects or properties of the Company and its subsidiaries, taken as a
whole; 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 the
Significant Subsidiaries, is owned by the Company or one of the other
Significant Subsidiaries directly, free and clear of any security
interest, mortgage, pledge, lien or claim. There are no other subsidiaries
of the Company which would be considered a "significant subsidiary" under
Rule 405 of Regulation C under the Securities Act.
(g) No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the Trust Indenture Act, the Securities Act,
the Public Utility Holding Company Act, or state securities or Blue Sky
laws. The Company possesses such material certificates, authorizations or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct its business as currently
operated.
(h) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no material adverse
change, nor any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business affairs, business prospects or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, and, since such respective dates, there has not been
any transaction entered into by the Company or its subsidiaries, which is
material to the Company and its subsidiaries taken as a whole, other than
transactions in the ordinary course of business, except in each case as
set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto); the Company and its subsidiaries, taken as a whole,
have no material contingent obligation which is not set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(i) 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.
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(j) 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 or any of
the Significant Subsidiaries is subject, other than as disclosed in or
contemplated by the Registration Statement; and the execution, delivery
and performance of this Agreement and the Indenture and the consummation
of the transactions contemplated herein have been duly authorized by all
necessary corporate action 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 (including without limitation the
Merger Agreement, dated August 8, 2000 between First Energy Corp. and the
Company), 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 knowledge of the Company, any administrative regulation.
(k) 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, overtly 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 condition, financial or otherwise, or
in the earnings, business affairs, business prospects or properties of the
Company and its subsidiaries, taken as a whole, or which, if adversely
decided, would materially and adversely affect the properties or assets
thereof or would materially and adversely affect the consummation of this
Agreement other than such actions, suits or proceedings which are
disclosed in or contemplated by the Registration Statement; and there are
no contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement by the
Act which have not been so filed.
(l) The Company and the Significant Subsidiaries possess all
required certificates, authorizations or permits issued by the appropriate
state, federal or foreign
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regulatory agencies or bodies except such as to which the failure to
possess the same would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs, business
prospects or properties of the Company and its Significant Subsidiaries,
taken as a whole, 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
condition, financial or otherwise, or the earnings, business affairs,
business prospects or properties of the Company and its subsidiaries,
taken as a whole, other than as disclosed in or contemplated by the
Registration statement.
Any certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
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upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, (a) at a purchase price of -----% of the
principal amount thereof, plus accrued interest, if any, from ---------, 2000,
to the Closing Date, the principal amount of the Series A Debentures set forth
opposite such Underwriter's name in Schedule I hereto and (b) at a purchase
price of -----% of the principal amount thereof, plus accrued interest, if any,
from ----------, 2000, to the Closing Date, the principal amount of the Series B
Debentures set forth opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
--------------------
be made at 10:00 AM, New York City time, on -----------, 2000, or at such time
on such later date not more than three Business Days after the foregoing date as
the Representative shall designate, which date and time may be postponed by
agreement between the Representative and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representative for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representative of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Representative shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
---------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
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5. Agreements.
----------
The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required
under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of
such timely filing. The Company will promptly advise the Representative
(1) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, (6) of any order by the
Commission directed to the adequacy of any document incorporated by
reference in the Prospectus or of any challenge made by the Commission as
to the adequacy of any such document and (7) of the receipt by the Company
of any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when, in the opinion of counsel for the
Underwriters, a prospectus relating to the Securities is required to be
delivered under the Act, any event occurs as a result of which the
Prospectus as then supplemented would, in the reasonable opinion of the
Company or of counsel for the Underwriters, include any untrue
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statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary, in the
reasonable opinion of the Company or of counsel for the Underwriters, to
amend the Registration Statement or supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representative of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance, and (3)
supply any supplemented Prospectus to the Underwriters in such quantities
as the Representative may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earning
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representative and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may, in the
opinion of counsel for any of the Underwriters, be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representative may reasonably request. With
respect to any delivery of documents occurring no more than nine months
after the first date of public offering of the Securities, the Company
will pay the expenses of printing or other production of all documents
relating to the offering. Should the delivery of prospectuses with respect
to any of the Securities be required more than nine months after the first
date of public offering of the Securities, the Underwriter or dealer
requesting such prospectuses will pay the reasonable expenses of printing
or other production of such prospectuses.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities in any jurisdiction where it
is not now so subject.
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(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any person in privity with the Company or any affiliate of the Company)
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange
Act, any long-term debt securities issued or guaranteed by the Company
(other than the Securities) or publicly announce an intention to effect
any such transaction, for a period of 60 days after the date of the
Underwriting Agreement.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities.
(h) The Company will pay all expenses and taxes (except transfer
taxes) in connection with (1) the preparation and filing by it of the
Registration Statement and all amendments thereto, (2) the issuance and
delivery of the Securities, (3) the qualification of the Securities under
blue-sky laws (including expenses of counsel and counsel fees not to
exceed $7,500), and (4) the printing and delivery to the Underwriters of
reasonable quantities of the Registration Statement and, except as
provided in Section 5(d) hereof, of the Prospectus. The Company shall not,
however, be required to pay any amount for any expenses of the
Underwriters, except as otherwise provided in Section 7. The Company shall
not in any event be liable to the Underwriters for damages on account of
loss of anticipated profits.
6. Conditions to the Obligations of the Underwriters. The obligations
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of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representative agrees in writing to a later
time, the Registration Statement will become effective not later than (1)
6:00 PM New York City time, on the date of determination
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of the public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (2) 10:00 AM on the Business Day
following the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have requested and caused Thelen Reid & Priest
LLP, counsel for the Company, to have furnished to the Representative their
opinion, dated the Closing Date and addressed to the Representative, to the
effect that:
(1) each of the Company and each Significant Subsidiary has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs, business prospects or
properties of the Company and its subsidiaries, taken as a whole;
the Company has full corporate power and authority to issue and
perform its obligations under the Securities;
(2) the Securities conform in all material respects to the
description thereof contained in the Prospectus;
(3) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity
or at law); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the
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Underwriters pursuant to this Agreement, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(4) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the statements included in the Prospectus under the
heading "Description of Debentures" fairly summarize the matters
therein described; provided, however, such counsel need express no
opinion as to the information concerning DTC and DTC's book-entry
system included under the subheading "Book-Entry Only Issuance - The
Depository Trust Company";
(5) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement, at the time it became effective, and the Prospectus, at
the time first filed with the commission pursuant to Rule 424(b)
under the Act and at the date hereof (other than (i) the financial
statements and other financial information contained or incorporated
by reference therein, (ii) the parts of the Registration Statement
that constitute statements of eligibility of the Trustee and (iii)
the information concerning FirstEnergy contained or incorporated by
reference in the [Joint Proxy Statement/Prospectus], as to which
such counsel need express no opinion) complied and comply as to form
in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder;
(6) this Agreement has been duly authorized, executed and
delivered by the Company;
(7) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as
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defined in the Investment Company Act of 1940, as amended;
(8) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained or made under the Act, the Trust Indenture Act
and the Public Utility Holding Company Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus; the consents, approvals, authorizations, filings or
orders which have been obtained or made are adequate to permit the
execution and delivery of this Agreement and the Indenture and the
issuance and sale of the Securities in accordance with this
Agreement;
(9) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or its subsidiaries pursuant to, (i) the
charter or by-laws of the Company or its subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel to which the
Company or its subsidiaries is a party or bound or to which its or
their property is subject, other than any such conflicts, breaches,
violations or impositions which would not result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, business prospects or properties of the
Company and its subsidiaries, taken as a whole or (iii) any statute,
law, rule, or regulation, or any judgment, order or decree known to
such counsel, applicable to the Company or its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or its subsidiaries or any of its or their properties.
In addition, such counsel shall state that it has no reason to believe
that, on the Effective Date, the Registration Statement contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date and on the Closing
Date, included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of
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the circumstances under which they were made, not misleading (in each
case, other than (i) the financial statements and other financial
information contained therein, (ii) the parts of the Registration
Statement that constitute statements of eligibility of the Trustee, (iii)
the information concerning FirstEnergy contained or incorporated by
reference in the [Joint Proxy Statement/Prospectus], and (iv) the
information concerning DTC and DTC's book-entry system included under the
subheading "Book-Entry Only Issuance - The Depository Trust Company", as
to which such counsel need express no view or belief);
In rendering such opinion, such counsel may rely (i) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (ii) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus
in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representative shall have received from Winthrop, Stimson,
Putnam & Roberts, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representative, with respect to
the issuance and sale of the Securities, the Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the President, or a Vice-President of
the Company, dated the Closing Date, to the effect that:
(1) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date; and
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and no order directed to the adequacy of any document
incorporated by reference in the Prospectus has been issued by the
<PAGE>
14
Commission, and no challenge by the Commission has been made to the
adequacy of any such documents.
(e) The Company shall have requested and caused to have furnished to
the Representative, at the Execution Time and at the Closing Date, letters,
dated respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representative, confirming (through a
specified date not more than five days prior to the Execution Date and the
Closing Date, respectively) that they are independent accountants within the
meaning of the Act and the Exchange Act and that they have performed a review
of the unaudited interim financial information of the Company for the -----
-month period ended --------, 2000, and as at -------- , 2000, in accordance
with Statement on Auditing Standards No. 71, and stating in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules [and pro forma financial statements]
included or incorporated by reference in the Registration Statement
and the Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act;
(2) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company;
their limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the unaudited interim
financial information for the ---- -month period ended --------,
2000 , and as at -------- , 2000, as indicated in their report dated
-------- , 2000, incorporated by reference in the Registration
Statement and the Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, the Boards of Directors and the Executive Committee of
the Boards of Directors of the Company and its subsidiaries as set
forth in the respective minute books since December 31; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
and its subsidiaries as to transactions and events subsequent to
--------- , 2000, nothing came to their attention which caused them
to believe that:
(a) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act
and the Exchange Act with respect to financial
<PAGE>
15
statements included or incorporated by reference in quarterly
reports on Form 10-Q; or that said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus;
(b) with respect to the period subsequent to --------,
2000, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
consolidated common stock, preferred stock without mandatory
redemption, preferred stock with mandatory redemption 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 business
of the Company and its subsidiaries), of the Company and its
subsidiaries, or any decrease in consolidated net assets
(except as occasioned by the declaration of dividends), in
each case as compared with the amounts shown on the --------,
2000, consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, or
for the period from ---------, 2000 to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues or net
income, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representative;
(c) the information included or incorporated by
reference in the Registration Statement and Prospectus in
response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; or
(d) the amounts of operating revenues, net income,
long-term debt, preferred stock, subsidiary-obligated
mandatorily redeemable preferred securities, trust preferred
securities, common equity and ratios of earnings to fixed
charges set forth under the heading "Certain Consolidated
Financial Information" in the Prospectus do not agree with the
amounts set forth
<PAGE>
16
in the unaudited financial statements for the same periods
and, in the case of such amounts which are unaudited, were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus; and
(3) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries)
included or incorporated by reference in the Registration Statement
and the Prospectus and in Exhibit 12 to the Registration Statement,
including the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's Annual Report
on Form 10-K for 1999 and subsequent Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation [;
and] [.]
[(4) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures; inquiries
of certain officials of the Company [and FirstEnergy Corp] who have
responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe that
the pro forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements.]
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (1) any change or decrease specified in the letter
or letters referred to in paragraph (e) of this Section
<PAGE>
17
6 or (2) any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, business affairs,
business prospects or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto), the effect of which, in any case
referred to in clause (1) or (2) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representative such further information, certificates and documents as
the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Thelen Reid & Priest LLP, counsel for the Company, at
40 West 57th Street, New York, NY 10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
----------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Salomon Smith Barney on demand for all reasonable out-of-pocket expenses
<PAGE>
18
(including the reasonable fees and disbursements of their counsel) that shall
have been incurred by them in connection with this Agreement or the offering
contemplated hereunder.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, 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 agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representative specifically for inclusion therein;
provided, however, that such indemnity with respect to the Prospectus or any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, liability, claim, damage or expense
purchased the Securities concerned, to the extent that it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Company furnished to such Underwriter, prior to the
written confirmation of the sale of the Securities to such purchasing person,
copies of such Prospectus or Preliminary Prospectus (including, in each case,
any amendment or supplement thereto), (x) delivery of such Prospectus or
Preliminary Prospectus was required by the Securities Act to be made to such
person, (y) the untrue statement or omission of a material fact contained in
such Prospectus or Preliminary Prospectus was corrected in an amendment or
supplement to such Prospectus or Preliminary Prospectus, and (z) there was
not sent or given to such person, at or prior to the written confirmation of
the sale of the Securities to such person, a copy of such Prospectus or
Preliminary Prospectus, as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
<PAGE>
19
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representative specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth [in the last paragraph of the cover page
regarding delivery of the Securities, the legend in block capital letters on
page [__] related to stabilization, syndicate covering transactions and
penalty bids and, under the heading "Underwriting", (1) the list of
Underwriters and their respective participation in the sale of the
Securities, (2) the sentences related to concessions and reallowances and (3)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids] in any Preliminary Prospectus and the Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which counsel 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 shall not, except as set forth below, thereafter be
responsible for any subsequently incurred fees and expenses (other than
reasonable costs of investigation) of any separate counsel retained by the
indemnified party or parties). Notwithstanding the indemnifying party's
election to assume the defense in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (1) the use of counsel chosen by the indemnifying party
to
<PAGE>
20
represent the indemnified party would present such counsel with a conflict of
interest, (2) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (3) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (4) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel separate from
their own 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. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and (ii) 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) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is held to be unenforceable to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters severally
shall contribute 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 of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be
<PAGE>
21
equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. The amount paid or payable by an indemnified party as a result of the
Losses 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. Notwithstanding the provisions of this
paragraph (d), an Underwriter shall not be required to contribute any amount
in excess of the amount by which the total public offering price at which the
Securities purchased by or through it were sold 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.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each Underwriter under this
paragraph (d) to contribute are several in proportion to the respective
purchases made by or through it to which such Losses relate and are not
joint. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to receive contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
receive contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities of the series as to which the purchase default has occurred set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Securities of such series set forth
<PAGE>
22
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Securities of such series
set forth in Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representative shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(a) trading in any of the Company's securities shall have been suspended by the
Commission or any exchange or in any over-the-counter market or trading in
securities generally shall have been suspended or limited or minimum prices
shall have been established on any exchange or over-the-counter market, (b) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (c) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representative, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to the Representative, will be telefaxed to
the Salomon Smith Barney Inc. General Counsel (fax no.: (212) 816-7912) and
<PAGE>
23
confirmed by mail or delivery to the General Counsel, Salomon Smith Barney Inc.,
at 388 Greenwich Street, New York, New York, 10013, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to GPU, Inc.,
Attention: Vice President and Treasurer (fax no.: (973) 644-4224), with a copy
thereof to Douglas E. Davidson, Esq., Thelen Reid & Priest LLP, 40 West 57th
Street, New York, New York 10019.
13. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder. The
term "successor" as used herein shall not include any purchaser, as such
purchaser, of any of the Securities from any Underwriter.
14. Applicable Law. This Agreement will be governed by and construed in
---------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
<PAGE>
24
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or,
if no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Public Utility Holding Company Act" shall mean the Public Utility
Holding Company Act of 1935, as amended, and the rules and regulations of
the Commission promulgated thereunder.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
<PAGE>
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours, GPU, Inc.
By:/s/ T. G. Howson
----------------
Name: T. G. Howson
Title: Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Salomon Smith Barney Inc.
By:
...........................
Name:
Title:
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
<PAGE>
1
63262147.02
SCHEDULE I
Principal Amount Principal Amount
of Series A of Series B
Underwriters Debentures to be Debentures to be
------------ Purchased Purchased
--------- ---------
Salomon Smith Barney Inc. $ $
Total $ $
