As filed with the
Securities and Exchange Commission on
October 12, 2000
Registration Statement No. 333-07895
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
GPU, Inc. Pennsylvania 13-5516989
(Exact name of registrant as (State or other (I.R.S. Employer
specified in its charter) jurisdiction of Identification No.)
incorporation or
organization)
----------------
300 Madison Avenue
Morristown, New Jersey 07962
(973) 401-8200
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
T.G. Howson
Vice President and Treasurer
GPU, Inc.
310 Madison Avenue
P.O. Box 1957
Morristown, New Jersey 07962
(973) 401-8200
(Names and addresses, including zip codes, and telephone numbers, including
area codes, of agent for service)
----------------
It is respectfully requested that the Commission also send
copies of all notices, orders and communications to:
Douglas E. Davidson, Esq. Scott L. Guibord, Esq. Richard L. Harden, Esq.
Thelen Reid & Priest LLP Secretary Winthrop, Stimson,
40 West 57th Street GPU, Inc. Putnam & Roberts
New York, New York 300 Madison Avenue One Battery Park Plaza
10019-4097 P.O. Box 1911 New York, New York
(212) 603-2000 Morristown, New Jersey 07962 10004-1490
973) 401-8200 (212) 858-1000
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
----------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ---
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. ---
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. --- ------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. --- -----------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. ---
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until this registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
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<PAGE>
Subject to Completion, Dated -------, 2000
PROSPECTUS
$300,000,000
GPU, INC.
---% Debentures, Series A due ----------
---% Debentures, Series B due ----------
--------------------
GPU, Inc. is offering hereby $300,000,000 aggregate principal amount of
its debentures.
Interest on the debentures of each series is payable semiannually on -------
and ------- of each year, beginning on ---------, 2001, at the respective rates
set forth above, subject to increase in certain circumstances as discussed under
the caption "Description of Debentures - Interest" in this prospectus. The
Series A debentures will mature on ---------. The Series B debentures will
mature on ----------. GPU, Inc. may redeem some or all of the debentures from
time to time at redemption prices discussed under the caption "Description of
Debentures - Optional Redemption" in this prospectus.
The debentures will be unsecured obligations of GPU, Inc. and will rank
equally with all of GPU, Inc.'s other unsecured indebtedness.
There is currently no public market for the debentures. GPU, Inc. does
not intend to list the debentures on any securities exchange.
GPU, Inc.'s principal executive offices are located at 300 Madison Avenue,
Morristown, New Jersey 07962, telephone number (973) 401-8200.
--------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
Proceeds
Public to
Offering Underwriting -------------
Price Discount GPU, Inc.
Series A Debentures ----% ----% ----%
Series B Debentures ----% ----% ----%
Total $------ $------- $-------
Interest on the debentures will accrue from --------- to date of delivery.
--------------------
The underwriters have agreed to purchase all of the debentures if they
purchase any of them. The underwriters are offering the debentures subject to
various conditions. The underwriters expect to deliver the debentures, in
book-entry form only, to purchasers through The Depository Trust Company on or
about ------, 2000.
--------------------
Salomon Smith Barney
The information in this prospectus is not complete and may be changed. GPU, Inc.
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
<PAGE>
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION 1
INCORPORATION BY REFERENCE 1
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995 1
CERTAIN CONSOLIDATED FINANCIAL INFORMATION 3
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES 4
GPU, INC. 4
RECENT DEVELOPMENTS 5
USE OF PROCEEDS 6
DESCRIPTION OF DEBENTURES 6
UNDERWRITING 20
EXPERTS 21
LEGAL OPINIONS 21
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
GPU, Inc. ("GPU") files annual, quarterly and other reports and other
information with the Securities and Exchange Commission ("SEC"). You can read
and copy any information filed by GPU with the SEC at the SEC's Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can obtain
additional information about the Public Reference Room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including GPU. GPU also
maintains an Internet site (http://www.gpu.com). Information contained on GPU's
Internet site does not constitute part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows GPU to incorporate by reference the information that GPU files
with the SEC, which means that GPU may, in this prospectus, disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus. GPU is
incorporating by reference the documents listed below and any future filings GPU
makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, until GPU sells all of the Debentures (defined herein)
described in this prospectus, and any such filings which GPU makes with the SEC
after the initial filing of the registration statement of which this prospectus
is a part and prior to the effective date of such registration statement.
Information that GPU files in the future with the SEC will automatically update
and supersede this information.
(1) GPU's Annual Report on Form 10-K for the year ended December 31, 1999.
(2) GPU's Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000 and June 30, 2000.
(3) GPU's Current Reports on Form 8-K filed with the SEC on February 4,
2000, March 3, 2000, April 18, 2000, May 1, 2000, June 21, 2000, June
30, 2000, August 4, 2000, August 11, 2000 and October 6, 2000.
You may request a copy of these documents, at no cost to you, by writing or
calling Investor Relations, GPU, Inc., 310 Madison Avenue, P.O. Box 1957,
Morristown, New Jersey 07962, telephone number (973) 401-8204.
You should rely only on the information contained in, or incorporated by
reference in, this prospectus. Neither GPU nor any underwriter, agent or dealer
has authorized anyone else to provide you with different information. Neither
GPU nor any underwriter, agent or dealer is making an offer of these Debentures
in any state where the offer is not permitted. You should not assume that the
information contained in this prospectus is accurate as of any date other than
the date on the front of the prospectus.
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, GPU is hereby filing cautionary statements
identifying important factors that could cause GPU's actual results to differ
<PAGE>
materially from those projected in forward-looking statements (as that term is
defined in the Private Securities Litigation Reform Act of 1995) made by or on
behalf of GPU which are made in this prospectus, in presentations, in response
to questions or otherwise. Any statements that express, or involve discussions
as to, expectations, beliefs, plans, objectives, assumptions or future events or
performance (often, but not always, through the use of words or phrases such as
"anticipates," "believes," "estimates," "expects," "intends," "plans,"
"projects," "will likely," "result," "will continue" or similar expressions) are
not statements of historical facts and may be forward-looking.
Forward-looking statements involve estimates, assumptions and uncertainties
and are qualified in their entirety by reference to, and are accompanied by, the
following important factors, which are difficult to predict, contain
uncertainties, are beyond the control of GPU and may cause actual results to
differ materially from those contained in those forward-looking statements:
- the consummation of the proposed merger of GPU with FirstEnergy Corp.
(see "Recent Developments" below);
- the effects of regulatory decisions, including any conditions imposed upon
the proposed merger with FirstEnergy Corp.;
- changes in law and other governmental actions and initiatives;
- the impact of deregulation and increased competition in the industry;
- industry restructuring;
- expected outcomes of legal proceedings;
- energy prices and availability; and
- uncertainties involved with foreign operations including political risks
and foreign currency fluctuations.
Any forward-looking statement speaks only as of the date on which that
statement is made, and GPU undertakes no obligation to update any
forward-looking statement to reflect events or circumstances after the date on
which that statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time and it is not possible for
management to predict all of those factors, nor can it assess the impact of each
of those factors on the business or the extent to which any factor, or
combination of factors, may cause actual results to differ materially from those
contained in any forward-looking statement.
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CERTAIN CONSOLIDATED FINANCIAL INFORMATION
(Dollars In Thousands)
Twelve
Months Ended
Years Ended December 31, June 30,
--------------------------------- 2000
1997 1998 1999 (unaudited)
--------- ---------- ---------- -----------
Income Summary:
Operating Revenues....... $4,143,379 $4,248,792 $4,757,124 $5,252,539
Net Income............... 335,101 360,126 459,014 141,218
June 30, 2000
(unaudited)
-----------------------------------
December 31, 1999 Actual As Adjusted(2)
---------------- -----------------
Amount % Amount % Amount %
----------------------------------- ------ --------- ----- --------- ------
Capital Structure:
Long-Term Debt
(including
unamortized net
discount) (3) $6,420,910 62.3 $5,472,532 59.8 $5,772,532 61.1
Subsidiary-Obligated
Mandatorily
Redeemable Preferred
Securities........... 125,000 1.2 125,000 1.4 125,000 1.3
Trust Preferred
Securities............... 200,000 2.0 200,000 2.2 200,000 2.1
Preferred Stock
(including
premium) (4)......... 96,649 0.9 74,982 0.8 74,982 0.8
Common Equity (5)..... 3,464,953 37.6 3,276,386 35.8 3,276,386 34.7
--------- ---- --------- ---- --------- ----
Total............... $10,307,512 100.0 $9,148,900 100.0 $9,448,900 100.0
------------------------------------------------------------------------------
(1) This information should be read in conjunction with GPU's Annual Report on
Form 10-K for the year ended December 31, 1999 and Quarterly Reports on
Form 10-Q for the quarters ended March 31, 2000 and June 30, 2000.
(2) Reflects the sale of the Debentures offered hereby.
(3) Includes obligations due within one year.
(4) Includes mandatory sinking fund obligations due within a year.
(5) GPU has 350,000,000 shares of Common Stock authorized, of which
121,805,540 shares and 121,392,938 shares were outstanding at December 31,
1999 and June 30, 2000, respectively.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
GPU has calculated its ratios of earnings to fixed charges as follows:
Year Ended December 31,
---------------------------------------
Twelve Months
Six Months Ended Ended June 30,
1995 1996 1997 1998 1999 June 30, 2000 2000
---- ---- ---- ---- ---- ------------- ----
3.29 2.37 2.44 2.43 2.30 0.90 (A) 1.47
(A)During the six months ended June 30, 2000, earnings were not adequate to
cover fixed charges. The dollar amount of such deficiency was $28.4 million.
GPU, INC.
GPU, a Pennsylvania corporation, is a holding company registered under the
Public Utility Holding Company Act of 1935 ("1935 Act"). GPU does not directly
operate any utility properties, but owns all the outstanding common stock of
three domestic electric utilities serving customers in New Jersey - Jersey
Central Power & Light Company ("JCP&L") - and Pennsylvania - Metropolitan Edison
Company ("Met-Ed") and Pennsylvania Electric Company ("Penelec"). The customer
service function, transmission and distribution operations of these electric
utilities are conducting business under the name GPU Energy. JCP&L, Met-Ed and
Penelec considered together are referred to as the "GPU Energy companies." GPU
Capital, Inc. and GPU Electric, Inc. and their subsidiaries own, operate and
fund the acquisition of electric and gas transmission and distribution systems
in foreign countries. GPU International, Inc. and GPU Power, Inc. and their
subsidiaries develop, own and operate generation facilities in the United States
and foreign countries. Other subsidiaries of GPU include: GPU Advanced
Resources, Inc., which is involved in retail energy sales; GPU Telcom Services,
Inc., which is engaged in telecommunications-related businesses; MYR Group Inc.,
an infrastructure construction services company; GPU Service, Inc., which
provides legal, accounting, financial and other services to the GPU companies;
and Midlands Electricity plc, an electric distribution company serving a
population of five million in England.
GPU is subject to regulation by the SEC under the 1935 Act. The GPU Energy
companies' retail rates, conditions of service, and issuance of securities are
subject to regulation in the state in which each utility operates - in New
Jersey by the New Jersey Board of Public Utilities and in Pennsylvania by the
Pennsylvania Public Utility Commission. The Nuclear Regulatory Commission (the
"NRC") regulates the ownership and operation of nuclear generating stations. The
GPU Energy companies are also subject to wholesale rate and other regulation by
the Federal Energy Regulatory Commission (the "FERC") under the Federal Power
Act. In addition, certain foreign subsidiaries and affiliates are subject to
rate and other regulation.
The electric generation and transmission facilities of the GPU Energy
companies are physically interconnected and are operated as a single integrated
and coordinated systems serving a population of approximately five million in
New Jersey and Pennsylvania. For the year 1999, the GPU Energy
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companies' revenues were about equally divided between Pennsylvania customers
and New Jersey customers.
The area served by the GPU Energy companies extends from the Atlantic Ocean
to Lake Erie, is generally comprised of small communities, rural and suburban
areas and includes a wide diversity of industrial enterprises, as well as
substantial farming areas. The GPU Energy companies' transmission facilities are
physically interconnected with neighboring nonaffiliated utilities in
Pennsylvania, New Jersey, Maryland, New York and Ohio. The interconnection
facilities are used for substantial capacity and energy interchange and
purchased power transactions, as well as emergency assistance. The GPU Energy
companies are members of the PJM Power Pool and the Mid-Atlantic Area Council,
an organization providing coordinated review of the planning by utilities in the
PJM area. The PJM Power Pool is a limited liability company which is governed by
an independent board of managers and has been recognized by the FERC as an
Independent System Operator.
RECENT DEVELOPMENTS
On August 8, 2000, GPU announced that its Board of Directors and the Board of
Directors of FirstEnergy Corp. ("FirstEnergy") had unanimously approved a merger
agreement pursuant to which GPU will merge with and into FirstEnergy with
FirstEnergy continuing as the surviving corporation. FirstEnergy would also
assume GPU's outstanding debt, including the Debentures offered hereby.
Following the merger, the combined company's principal domestic electric
utility operating companies would include FirstEnergy's Ohio Edison Company,
Pennsylvania Power Company, The Cleveland Electric Illuminating Company and The
Toledo Edison Company, as well as the GPU Energy companies. Together, these
companies serve approximately 4.3 million customers within 37,200 square miles
of Ohio, Pennsylvania and New Jersey.
The merger is subject to the approval of GPU's and FirstEnergy's
shareholders. Regulatory approvals will also be required from the SEC, the FERC,
the Federal Communications Commission, the NRC and the Pennsylvania and New
Jersey utility commissions. In addition, the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act must have expired or terminated and
approvals from foreign regulatory agencies may be required. As a result of the
merger, FirstEnergy will be required to register with the SEC as a holding
company under the Public Utility Holding Company Act of 1935.
Subject to the timely receipt of regulatory approvals, it is expected that
the merger could be completed by the second quarter of 2001.
FirstEnergy files annual, quarterly and other reports and information with
the SEC. You can read and copy any information filed by FirstEnergy with the SEC
at the SEC's Public Reference Room at 450 Fifth Street, N.W. Washington, D.C.
20549 or from the Internet site maintained by the SEC (http://www.sec.gov).
Information filed by FirstEnergy with the SEC does not constitute part of this
prospectus.
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USE OF PROCEEDS
GPU will use the net proceeds from the sale of the Debentures to repay
short-term debt, incurred by it for working capital and other corporate purposes
and for the repayment of short-term debt of its wholly-owned subsidiaries, GPU
Capital, Inc. and GPU Australia Holdings, Inc., which was primarily incurred to
finance investments in foreign utility companies. At October 3, 2000, GPU and
such subsidiaries had an aggregate of approximately $1.3 billion of short-term
debt outstanding, which had maturities ranging from one to 99 days and which
bore interest at rates ranging from 6.73% to 7.19%.
DESCRIPTION OF DEBENTURES
General. The following description sets forth the specific terms and
provisions of GPU's unsecured debt securities that GPU is offering by this
prospectus.
GPU will issue the ----% Series A Debentures due 20-- (the "Series A
Debentures") and the ---% Series B Debentures due 20-- (the "Series B
Debentures"), (the Series A Debentures and the Series B Debentures are
collectively referred to as the "Debentures") under an Indenture ("Indenture")
between GPU and United States Trust Company of New York, as trustee ("Trustee"),
supplemented by an officer's certificate establishing terms of each series of
the Debentures. The Indenture provides that GPU may issue debentures, including
the Debentures, notes or other evidence of indebtedness (each a "Debt Security")
in an unlimited amount, from time to time in one or more series. Each of the
Series A Debentures and the Series B Debentures will constitute a series of Debt
Securities under the Indenture.
The Series A Debentures will mature on ----, ------. The Series B Debentures
will mature on ----, ------.
The following descriptions of the Debentures and the Indenture are summaries
and are qualified by reference to the Indenture. The form of the Indenture is
being filed as an exhibit to the registration statement, and you should read the
Indenture for provisions that may be important to you. References to certain
sections of the Indenture are included in parentheses. Whenever particular
provisions or defined terms in the Indenture are referred to under this
"Description of Debentures," such provisions or defined terms are incorporated
by reference herein. The Indenture will be qualified under the Trust Indenture
Act of 1939. You should refer to the Trust Indenture Act of 1939 for provisions
that apply to the Debentures.
Structural Subordination. The Debentures will be GPU's direct unsecured
general obligations and will rank equally with GPU's other unsecured
obligations. As a holding company, GPU derives substantially all of its income
from its operating subsidiaries. As a result, the Debentures will be effectively
subordinated to debt and preferred stock at the subsidiary level. There can be
no assurance as to the timing and amount of common stock dividend payments
received by GPU from its subsidiaries. The financial statements of GPU
incorporated by reference in this prospectus show the aggregate amount of the
subsidiary debt and preferred stock and the other debt of GPU as of the date of
these financial statements.
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Interest. Interest on the Debentures will:
- Be payable in U.S. dollars at a rate of --% per annum for the Series A
Debentures and --% per annum for the Series B Debentures, subject to
adjustment as described below.
- Be subject to increase as follows:
- If an Interest Adjustment Event (as defined below) shall have
occurred, then, commencing on, and as of, the date of each Interest
Adjustment Event, the rate at which interest on the Debentures of
each series accrues will be increased from the initial rate set forth
above by:
a) --- basis points if the Debentures are rated below
Investment Grade by one of the Rating Agencies; or
b) --- basis points if the Debentures are rated below Investment
Grade by both Rating Agencies.
- "Interest Adjustment Event" means each of the following:
a) consummation of the proposed merger of GPU with and into
FirstEnergy if, upon such consummation, the rating of the
Debentures by either Rating Agency shall be below Investment
Grade; and
b) the lowering of the rating of the Debentures from Investment
Grade to below Investment Grade by either Rating Agency if
such action occurs within 90 days after the date of the
consummation of the merger.
- The Indenture provides that GPU will notify the Trustee promptly
following each Interest Adjustment Event, and the Trustee will give
prompt notice thereof to the holders of the Debentures.
- No further adjustments in interest rate will be made if either Rating
Agency subsequently raises its rating of the Debentures.
- "Rating Agency" means either Moody's Investor Service, Inc. or
Standard & Poor's Ratings Group. "Investment Grade" means ratings
at or higher than Baa3 for Moody's and BBB- for S&P.
- The interest rate on the Debentures will not be so adjusted at any
time after GPU has made in respect of the Debentures the irrevocable
deposit with the Trustee of cash or eligible obligations described
below in "Satisfaction and Discharge".
- Be computed for each interest period on the basis of a 360-day year
consisting of twelve 30-day months and for any period shorter than a full
month, on the basis of the actual number of days elapsed in such period.
- Be payable semiannually in arrears on --------- and ------- of each year,
commencing -----------, 2001, and at maturity.
- Originally accrue from, and include, ---------------.
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- Be paid to the persons in whose names the Debentures are registered at the
close of business (1) on the business day prior to each interest payment
date if the Debentures remain in book-entry only form or (2) on the 15th
calendar day before each interest payment date if the Debentures do not
remain in book-entry only form. See "Book-Entry Only Issuance--The
Depository Trust Company" below.
In the event that any interest payment date is not a business day, then
payment of interest payable on such date will be made on the next succeeding day
which is a business day (and without any interest or other payment in respect of
such delay).
The covenants contained in the Indenture will not afford holders of
Debentures protection in the event of a highly-leveraged or similar transaction
involving GPU.
Optional Redemption. GPU may redeem the Debentures, at its option, in whole
or in part from time to time, at any time prior to their maturity (each a
"Redemption Date"). GPU will give notice of its intent to redeem any series of
the Debentures upon at least 30 days notice but not more than 60 days notice
prior to a Redemption Date. If GPU redeems all or any part of any series of the
Debentures, it will pay a redemption price equal to the greater of (1) 100% of
the principal amount of the Debentures to be redeemed or (2) the sum of the
present values of the Remaining Scheduled Payments (as defined below)
discounted, on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months), at a rate equal to the sum of the Treasury Rate (as defined
below) and
- -- basis points for the Series A Debentures
- -- basis points for the Series B Debentures
In each case accrued interest will be payable to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Series A Debentures or the Series B Debentures, as the
case may be, to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such
Debentures. "Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by GPU.
"Comparable Treasury Price" means, with respect to any Redemption Date, the
average of the Reference Treasury Dealer Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 3:30 p.m., New York City time, on the third business day
preceding such Redemption Date.
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"Reference Treasury Dealer" means each of Salomon Smith Barney Inc. and
------------ and their respective successors. If either of the foregoing shall
cease to be a primary U.S. Government securities dealer (a "Primary Treasury
Dealer"), GPU shall substitute another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Debenture to be
redeemed, the remaining scheduled payments of principal of and interest on such
Debenture that would be due after the related Redemption Date but for such
redemption (utilizing the interest rate borne by such Debenture on the
Redemption Date). If such Redemption Date is not an interest payment date with
respect to such Debenture, the amount of the next succeeding scheduled interest
payment on such Debenture will be reduced by the amount of interest accrued on
such Debenture to such Redemption Date.
On and after the Redemption Date, interest will cease to accrue on the
Debentures or any portion of the Debentures called for redemption (unless GPU
fails to make the payment of the redemption price and accrued interest). On or
before the Redemption Date, GPU will deposit with a paying agent (or the
Trustee) money sufficient to pay the redemption price of and accrued interest on
the Debentures to be redeemed on such date.
The Indenture provides that if GPU at any time elects to redeem only a part
of any series of the Debentures, the Trustee, as security registrar, will select
the particular Debentures to be redeemed using any method that it deems fair and
appropriate. However, if the Debentures are solely registered in the name of
Cede & Co. and traded through The Depository Trust Company ("DTC"), then DTC
will select the Debentures to be redeemed in accordance with its practices as
described in "Book-Entry Only Issuance -- The Depository Trust Company."
If at the time notice of redemption is given, the redemption moneys are not
on deposit with the Trustee, then the redemption shall be subject to their
receipt on or before the Redemption Date and such notice shall be of no effect
unless such moneys are received.
Payment and Paying Agents. Interest, if any, on each Debenture payable on
each interest payment date will be paid to the person in whose name such
Debenture is registered as of the close of business on the regular record date
for the interest payment date. However, interest payable at maturity will be
paid to the person to whom the principal is paid. If there has been a default in
the payment of interest on any Debenture, the defaulted interest may be paid to
the holder of such Debenture as of the close of business on a date to be fixed
by the Trustee, which will be between 10 and 15 days prior to the date proposed
by GPU for payment of such defaulted interest or in any other manner permitted
by any securities exchange on which such Debenture may be listed, if the Trustee
finds it practicable. (See Indenture, Section 307.)
Principal of, and premium, if any, and interest, if any, on the Debentures at
maturity will be payable upon presentation of the Debentures at the corporate
trust office of the Trustee, in The City of New York, as Paying Agent for GPU.
GPU may change the place of payment on the Debentures, may appoint one or more
additional Paying Agents, including GPU, and may remove any Paying Agent, all at
the discretion of GPU. (See Indenture, Section 602.)
Registration and Transfer. The transfer of Debentures may be registered,
and Debentures may be exchanged for other Debentures of the same series of
authorized denominations and with the same terms and principal amount, at the
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corporate trust office of the Trustee in The City of New York. GPU may change
the place for registration of transfer and exchange of the Debentures and may
designate additional places for such registration and exchange. No service
charge will be made for any transfer or exchange of the Debentures. However, GPU
may require payment to cover any tax or other governmental charge that may be
imposed. GPU will not be required to execute or to provide for the registration
of transfer of, or the exchange of, (a) any Debenture during a period of 15 days
prior to giving any notice of redemption or (b) any Debenture selected for
redemption except the unredeemed portion of any Debenture being redeemed in
part. (See Indenture, Section 305.)
Satisfaction and Discharge. GPU will be discharged from its obligations
on the Debentures, or any portion of the principal amount of the Debentures,
if
(1)it irrevocably deposits with the Trustee sufficient cash or eligible
obligations (or a combination of both) to pay the principal, or portion of
principal, interest, any premium and any other sums when due on the
Debentures at their maturity, stated maturity date, or redemption; and
(2) it delivers to the Trustee:
(a) a company order stating that the money and eligible obligations
deposited in accordance with the Indenture shall be held in trust
and certain opinions of counsel and of an independent public
accountant;
(b) if such deposit shall have been made prior to the maturity of such
Debentures, an officer's certificate stating GPU's intention that,
upon delivery of such officer's certificate, its indebtedness in
respect of such Debentures or portions thereof will have been
satisfied and discharged as contemplated in the Indenture.
For this purpose, eligible obligations include direct obligations of, or
obligations unconditionally guaranteed by, the United States entitled to the
benefit of the full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due in respect
thereof and which do not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof.
In the event that all of the conditions set forth above have been satisfied
in respect of any Debentures or portions thereof except that, for any reason,
the officer's certificate described in clause (b) above has not been delivered,
the holders of such Debentures or portions thereof will no longer be entitled to
the benefits of the covenant of GPU described below in "Limitation on Liens."
The indebtedness of GPU in respect of such Debentures or portions thereof,
however, will not be deemed to have been satisfied and discharged prior to
maturity, and the holders of such Debentures or portions thereof may continue to
look to GPU for payment of the indebtedness represented thereby. (See Indenture,
Section 701.)
The Indenture will be deemed satisfied and discharged when no Debt Securities
remain outstanding and when GPU has paid all other sums payable by GPU under the
Indenture. (See Indenture, Section 702.)
All moneys GPU pays to the Trustee or any Paying Agent on Debentures which
remain unclaimed at the end of two years after payments have become due will
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be paid to or upon the order of GPU. Thereafter, the holder of such
Debenture may look only to GPU for payment thereof. (See Indenture, Section
603.)
Limitation on Liens. The Indenture provides that, except as otherwise
specified with respect to a particular series of Debt Securities, GPU will not
pledge, mortgage, hypothecate or grant a security interest in, or permit any
mortgage, pledge, security interest or other lien upon, any capital stock of any
Subsidiary, as defined below, now or hereafter directly owned by GPU, to secure
any Indebtedness, as defined below, without also securing the outstanding Debt
Securities, including the Debentures, and all other Indebtedness entitled to be
so secured, equally and ratably with the Indebtedness and any other indebtedness
similarly entitled to be equally and ratably secured.
This restriction does not apply to, or prevent the creation or any
extension, renewal or refunding of:
(1) any mortgage, pledge, security interest, lien or encumbrance upon any
capital stock created at the time it is acquired by GPU or within one
year after that time to secure the purchase price for the capital
stock;
(2) any mortgage, pledge, security interest, lien or encumbrance upon any
capital stock existing at the time it is acquired by GPU, whether or
not the secured obligations are assumed by GPU; or
(3) any judgment, levy, execution, attachment or other similar lien
arising in connection with court proceedings, provided that:
(a) the execution or enforcement of the lien is effectively stayed
within 30 days after entry of the corresponding judgment, or the
corresponding judgment has been discharged within that 30 day period, and
the claims secured by the lien are being contested in good faith by
appropriate proceedings timely commenced and diligently prosecuted;
(b) the payment of each lien is covered in full by insurance
and the insurance company has not denied or contested coverage thereof;
or
(c) so long as each lien is adequately bonded, any appropriate and
duly initiated legal proceedings for the review of the corresponding
judgment, decree or order shall not have been fully terminated or the
period within which these proceedings may be initiated shall not have
expired.
For purposes of the restriction described in the preceding paragraph,
"Indebtedness" means:
(1) all indebtedness created or assumed by GPU for the
repayment of money borrowed;
(2) all indebtedness for money borrowed secured by a lien upon
capital stock owned by GPU and upon which indebtedness for money borrowed
GPU customarily pays interest, although GPU has not assumed or become
liable for the payment of the indebtedness for money borrowed; and
(3) all indebtedness of others for money borrowed which
is guaranteed as to payment of principal by GPU or in effect guaranteed
by
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GPU through a contingent agreement to purchase the indebtedness for money
borrowed, but excluding from this definition any other contingent
obligation of GPU in respect of indebtedness for money borrowed or other
obligations incurred by others.
"Subsidiary" means a corporation in which more than 50% of the outstanding
voting stock is owned, directly or indirectly, by GPU and/or by one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has that voting power by
reason of any contingency.
Notwithstanding the foregoing, except as otherwise specified in the
officer's certificate setting out the terms of a particular series of Debt
Securities, GPU may, without securing the Debt Securities, pledge, mortgage,
hypothecate or grant a security interest in, or permit any mortgage, pledge,
security interest or other lien, in addition to liens expressly permitted as
described in the preceding paragraphs, upon, capital stock of any Subsidiary now
or hereafter owned by GPU to secure any Indebtedness, which would otherwise be
subject to the foregoing restriction, in an aggregate amount which, together
with all other such Indebtedness, does not exceed 5% of Consolidated
Capitalization. For this purpose, "Consolidated Capitalization" means the sum
of:
(1) Consolidated Shareholders' Equity;
(2) Consolidated Indebtedness for money borrowed, which is total
indebtedness as shown on the consolidated balance sheet of GPU and its
Subsidiaries, exclusive of any that is due and payable within one year of
the date the sum is determined; and, without duplication
(3) any preference or preferred stock of GPU or any Consolidated
Subsidiary which is subject to mandatory redemption or sinking fund
provisions.
The term "Consolidated Shareholders' Equity" as used above means the total
Assets of GPU and its Consolidated Subsidiaries less all liabilities of GPU and
its Consolidated Subsidiaries that would, in accordance with generally accepted
accounting principles in the United States, be classified on a balance sheet as
liabilities, including without limitation:
(1) indebtedness secured by property of GPU or any of its
Consolidated Subsidiaries whether or not GPU or the Consolidated
Subsidiary is liable for the payment of the indebtedness unless, in the
case that GPU or the Consolidated Subsidiary is not so liable, the
property has not been included among the Assets of GPU or the Consolidated
Subsidiary on the balance sheet;
(2) deferred liabilities; and
(3) indebtedness of GPU or any of its Consolidated Subsidiaries that
is expressly subordinated in right and priority of payment to other
liabilities of GPU or such Consolidated Subsidiary.
As used in this definition, "liabilities" includes preference or preferred
stock of GPU or any Consolidated Subsidiary only to the extent of any preference
or preferred stock that is subject to mandatory redemption or sinking fund
provisions.
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The term "Consolidated Subsidiary", as used above, means, at any date, any
Subsidiary, the financial statements of which under generally accepted
accounting principles would be consolidated with those of GPU in its
consolidated financial statements as of that date.
The "Assets" of any person means the whole or any part of its business,
property, assets, cash and receivables. The term "Consolidated Indebtedness"
means total indebtedness as shown on the consolidated balance sheet of GPU and
its Consolidated Subsidiaries.
As of June 30, 2000, the Consolidated Capitalization of GPU was
approximately $8.5 billion.
The foregoing limitation does not limit in any manner the ability of:
- GPU to place liens on any of its assets other than the capital stock of
Subsidiaries;
- GPU to cause the transfer of its assets or those of its subsidiaries,
including the capital stock covered by the foregoing restrictions; or
- any of the subsidiaries of GPU to place liens on any of their assets.
Consolidation, Merger, and Sale of Assets. Under the terms of the Indenture,
GPU may not consolidate with or merge into any other entity or convey, transfer
or lease its properties and assets substantially as an entirety to any entity,
unless:
- the surviving or successor entity is organized and validly existing under
the laws of any domestic jurisdiction and it expressly assumes GPU's
obligations on all Debt Securities and under the Indenture;
- immediately after giving effect to the transaction, no Event of Default
and no event which, after notice or lapse of time or both, would become an
Event of Default shall have occurred and be continuing; and
- GPU shall have delivered to the Trustee an officer's certificate and an
opinion of counsel as to compliance with the foregoing.
The terms of the Indenture do not restrict GPU from entering into a merger in
which GPU is the surviving entity. (See Indenture, Section 1101.)
Events of Default. "Event of Default" when used in the Indenture with
respect to any series of Debt Securities, means any of the following:
- failure to pay interest, if any, on any Debt Security of the applicable
series for 30 days after it is due;
- failure to pay the principal of or premium, if any, on any Debt Security
of the applicable series when due, whether at maturity or upon earlier
redemption;
- failure to perform any other covenant in the Indenture, other than a
covenant that does not relate to that series of Debt Securities, that
continues for 90 days after GPU receives written notice from the Trustee,
or GPU and the Trustee receive a written notice from 33 percent of the
holders of the Debt Securities of such series; however, the
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Trustee or the Trustee and the holders of such principal amount of Debt
Securities of this series can agree to an extension of the 90 day period
and such an agreement to extend will be automatically deemed to occur if
GPU is diligently pursuing action to correct the default;
- certain events in bankruptcy, insolvency or reorganization of GPU; or
- any other event of default included in any supplemental indenture or
officer's certificate for a specific series of Debt Securities.
(See Indenture, Section 801.)
The Trustee may withhold notice to the holders of Debt Securities of any
default, except default in the payment of principal, premium, if any, or
interest, if it considers such withholding of notice to be in the interests of
the holders. An Event of Default for a particular series of Debt Securities does
not necessarily constitute an Event of Default for any other series of Debt
Securities issued under the Indenture.
Remedies
Acceleration of Maturity. If an Event of Default with respect to fewer
than all the series of Debt Securities occurs and continues, either the Trustee
or the holders of at least 33 percent in principal amount of the Debt Securities
of any series as to which the Event of Default has occurred may declare the
entire principal amount of all the Debt Securities of such series, together with
accrued interest, to be due and payable immediately. However, if the Event of
Default is applicable to all outstanding Debt Securities under the Indenture,
only the Trustee or holders of at least 33 percent in principal amount of all
outstanding Debt Securities of all series, voting as one class, and not the
holders of any one series, may make such a declaration of acceleration.
At any time after a declaration of acceleration with respect to the Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the Event of Default giving rise to
such declaration of acceleration will be considered waived, and such declaration
and its consequences will be considered rescinded and annulled, if:
- GPU has paid or deposited with the Trustee a sum sufficient to pay:
(1) all overdue interest, if any, on all Debt Securities of the series;
(2) the principal of and premium, if any, on any Debt Securities of the
series which have otherwise become due and interest, if any, that is
currently due;
(3) interest, if any, on overdue interest; and
(4) all amounts due to the Trustee under the Indenture; and
- any other Event of Default with respect to the Debt Securities of that
series has been cured or waived as provided in the Indenture.
There is no automatic acceleration, even in the event of bankruptcy,
insolvency or reorganization of GPU. (See Indenture, Section 802.)
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Right to Direct Proceedings. Other than its duties in case of an Event of
Default, the Trustee is not obligated to exercise any of its rights or powers
under the Indenture at the request, order or direction of any of the holders,
unless the holders offer the Trustee a reasonable indemnity. (See Indenture,
Section 903.) If they provide a reasonable indemnity, the holders of a majority
in principal amount of any series of Debt Securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any power conferred upon the Trustee.
However, if the Event of Default relates to more than one series, only the
holders of a majority in aggregate principal amount of all affected series will
have the right to give this direction. (See Indenture, Section 812). The Trustee
is not obligated to comply with directions that conflict with law or other
provisions of the Indenture.
Limitation on Right to Institute Proceedings. No holder of Debt Securities
of any series will have any right to institute any proceeding under the
Indenture, or to exercise any remedy under the Indenture, unless:
- the holder has previously given to the Trustee written notice of a
continuing Event of Default;
- the holders of a majority in aggregate principal amount of the outstanding
Debt Securities of all series in respect of which an Event of Default
shall have occurred and be continuing have made a written request to the
Trustee, and have offered reasonable indemnity to the Trustee to institute
proceedings; and
- the Trustee has failed to institute any proceeding for 60 days after
notice has been received and has not received any direction inconsistent
with the written request of holders during such period.
(See Indenture, Section 807.)
No Impairment of Right to Receive Payment. However, the limitations
described in the preceding paragraph do not apply to a suit by a holder of a
Debt Security for payment of the principal of or premium, if any, or interest,
if any, on a Debt Security on or after the applicable due date.
(See Indenture, Section 808.)
Annual Notice to Trustee. GPU will provide to the Trustee an annual
statement by an appropriate officer as to GPU's compliance with all
conditions and covenants under the Indenture. (See Indenture, Section 606.)
Modification and Waiver. GPU and the Trustee may enter into one or more
supplemental indentures without the consent of any holder of Debt Securities for
any of the following purposes:
- to evidence the assumption by any permitted successor of the covenants
of GPU in the Indenture and in the Debt Securities;
- to add additional covenants of GPU or to surrender any right or power
of GPU under the Indenture;
- to add additional Events of Default;
- to change, eliminate, or add any provision to the Indenture; provided,
however, if the change, elimination, or addition will adversely affect the
interests of the holders of Debt Securities of any series, other
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than any series the terms of which permit such change, elimination or
addition, in any material respect, such change, elimination, or addition
will become effective only:
(1) when the consent of the holders of Debt Securities of such series
has been obtained in accordance with the Indenture; or
(2) when no Debt Securities of such series remain outstanding under
the Indenture;
- to provide collateral security for all of the Debt Securities;
- to establish the form or terms of Debt Securities of any other series
as permitted by the Indenture;
- to provide for the authentication and delivery of bearer securities and
coupons attached thereto;
- to evidence and provide for the acceptance of appointment of a
successor Trustee;
- to provide for the procedures required for use of a noncertificated
system of registration for the Debt Securities of all or any series;
- to change any place where principal, premium, if any, and interest shall
be payable, Debt Securities may be surrendered for registration of
transfer or exchange and notices to GPU may be served; or
- to cure any ambiguity or inconsistency or to make any other provisions
with respect to matters and questions arising under the Indenture;
provided that such action shall not adversely affect the interests of the
holders of Debt Securities of any series in any material respect.
(See Indenture, Section 1201.)
The holders of at least a majority in aggregate principal amount of the Debt
Securities of all series then outstanding may waive compliance by GPU with
certain restrictive provisions of the Indenture. (See Indenture, Section 607.)
The holders of not less than a majority in principal amount of the outstanding
Debt Securities of any series may waive any past default under the Indenture
with respect to that series, except a default in the payment of principal,
premium, if any, or interest and certain covenants and provisions of the
Indenture that cannot be modified or be amended without the consent of the
holder of each outstanding Debt Security of the series affected. (See Indenture,
Section 813.)
If the Trust Indenture Act of 1939 is amended after the date of the Indenture
in such a way as to require changes to the Indenture, the Indenture will be
deemed to be amended so as to conform to such amendment of the Trust Indenture
Act of 1939. GPU and the Trustee may, without the consent of any holders, enter
into one or more supplemental indentures to evidence such an amendment. (See
Indenture, Section 1201.)
The consent of the holders of a majority in aggregate principal amount of the
Debt Securities of all series then outstanding is required for all other
modifications to the Indenture. However, if less than all of the series of Debt
Securities outstanding are directly affected by a proposed supplemental
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<PAGE>
indenture, then the consent only of the holders of a majority in aggregate
principal amount of all series that are directly affected, voting as a class,
will be required. No such amendment or modification may:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any Debt Security, or reduce the principal
amount of any Debt Security or its rate of interest or change the method
of calculating such interest rate or reduce any premium payable upon
redemption, or change the currency in which payments are made, or impair
the right to institute suit for the enforcement of any payment on or after
the stated maturity of any Debt Security, without the consent of the
holder;
- reduce the percentage in principal amount of the outstanding Debt
Securities of any series whose consent is required for any supplemental
indenture or any waiver of compliance with a provision of the Indenture or
any default thereunder and its consequences, or reduce the requirements
for quorum or voting, without the consent of all the holders of the
series; or
- modify certain of the provisions of the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past defaults with
respect to the Debt Securities of any series, without the consent of the
holder of each outstanding Debt Security affected thereby.
A supplemental indenture which changes the Indenture solely for the benefit
of one or more particular series of Debt Securities, or modifies the rights of
the holders of Debt Securities of one or more series, will not affect the rights
under the Indenture of the holders of the Debt Securities of any other series.
(See Indenture, Section 1202.)
The Indenture provides that Debt Securities owned by GPU or anyone else
required to make payment on the Debt Securities shall be disregarded and
considered not to be outstanding in determining whether the required holders
have given a request or consent. (See Indenture, Section 101.)
GPU may fix in advance a record date to determine the required number of
holders entitled to give any request, demand, authorization, direction, notice,
consent, waiver or other such act of the holders, but GPU shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act of the holders
may be given before or after such record date, but only the holders of record at
the close of business on that record date will be considered holders for the
purposes of determining whether holders of the required percentage of the
outstanding Debt Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other act
of the holders. For that purpose, the outstanding Debt Securities shall be
computed as of the record date. Any request, demand, authorization, direction,
notice, consent, election, waiver or other act of a holder shall bind every
future holder of the same Debt Securities and the holder of every Debt Security
issued upon the registration of transfer of or in exchange of such Debt
Securities. A transferee will be bound by acts of the Trustee or GPU taken in
reliance thereon, whether or not notation of such action is made upon such Debt
Security. (See Indenture, Section 104.)
Resignation of the Trustee. The Trustee may resign at any time by giving
written notice to GPU or may be removed at any time by act of the holders of a
majority in principal amount of all series of Debt Securities then outstanding
delivered to the Trustee and GPU. No resignation or removal of the Trustee and
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no appointment of a successor Trustee will be effective until the acceptance of
appointment by a successor Trustee. So long as no Event of Default or event
which, after notice or lapse of time, or both, would become an Event of Default
has occurred and is continuing and except with respect to the Trustee appointed
by act of the holders, if GPU has delivered to the Trustee a resolution of its
Board of Directors appointing a successor Trustee and such successor has
accepted such appointment in accordance with the terms of the respective
Indenture, the Trustee will be deemed to have resigned and the successor will be
deemed to have been appointed as Trustee in accordance with such Indenture. (See
Indenture, Section 910.)
Notices. Notices to holders of Debt Securities will be given by mail to the
addresses of such holders as they may appear in the security register therefor.
(See Indenture, Section 106.)
Title. GPU, the Trustee, and any agent of GPU or the Trustee, may treat the
person in whose name Debt Securities are registered as the absolute owner
thereof, whether or not such Debt Securities may be overdue, for the purpose of
making payments and for all other purposes irrespective of notice to the
contrary. (See Indenture, Section 308.)
Governing Law. The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York. (See Indenture,
Section 112.)
Regarding the Trustee. The trustee under the Indenture is United States Trust
Company of New York. United States Trust Company of New York has from time to
time engaged in transactions with, or performed services for , GPU and its
affiliates in the ordinary course of business. Among other things, United Trust
Company of New York acts as trustee under various indentures of affiliates of
GPU.
Book-Entry Only Issuance--The Depository Trust Company.
The Debentures will trade through DTC. The Debentures will be represented by
a global certificate and registered in the name of Cede & Co., DTC's nominee.
DTC is a New York clearing corporation and a clearing agency registered
under Section 17A of the Securities Exchange Act of 1934. DTC holds securities
for its participants. DTC facilitates settlement of securities transactions
among its participants through electronic computerized book-entry changes in the
participants' accounts. This eliminates the need for physical movement of
securities certificates. The participants include securities brokers and
dealers, banks, trust companies and clearing corporations. DTC is owned by a
number of its participants and by the New York Stock Exchange, Inc., the
American Stock Exchange LLC, and the National Association of Securities Dealers,
Inc. Others who maintain a custodial relationship with a participant can use the
DTC system. The rules that apply to DTC and those using its systems are on file
with the SEC.
Purchases of the Debentures within the DTC system must be made through
participants, which will receive a credit for the Debentures on DTC's records.
The beneficial ownership interest of each purchaser will be recorded on the
participants' records. Beneficial owners will not receive written confirmation
from DTC of their purchases, but beneficial owners should receive
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written confirmations of the transactions, as well as periodic statements of
their holdings, from the participants through which they purchased Debentures.
Beneficial owners will not receive certificates for their Debentures, except if
use of the book-entry system for the Debentures is discontinued.
To facilitate subsequent transfers, all Debentures deposited by direct
participants with DTC are registered in the name of DTC's nominee, Cede & Co.
The deposit of the Debentures with DTC and their registration in the name of
Cede & Co. effects no change in beneficial ownership. DTC has no knowledge of
the actual beneficial owners of the Debentures. DTC's records reflect only the
identity of the participants to whose accounts such Debentures are credited.
These participants may or may not be the beneficial owners. Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to participants, and by
participants to indirect participants and beneficial owners, will be governed by
arrangements among them.
Redemption notices will be sent to Cede & Co. If less than all of the
Debentures are being redeemed, DTC's practice is to determine by lot the amount
of Debentures of each participant to be redeemed.
Neither DTC nor Cede & Co. will itself consent or vote with respect to
Debentures. Under its usual procedures, DTC would mail an omnibus proxy to GPU
as soon as possible after the record date. The omnibus proxy assigns the
consenting or voting rights of Cede & Co. to those participants to whose
accounts the Debentures are credited on the record date. GPU believes that these
arrangements will enable the beneficial owners to exercise rights equivalent in
substance to the rights that can be directly exercised by a registered holder of
Debentures.
Interest and redemption payments on the Debentures will be made to DTC. DTC's
practice is to credit participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payments on that payment date.
Payments by participants to beneficial owners will be governed by standing
instructions and customary practices. Payments will be the responsibility of
participants and not of DTC, the Trustee or GPU. Payment of redemption proceeds,
distributions and interest to DTC is the responsibility of GPU. Disbursement of
payments to participants is the responsibility of DTC, and disbursement of
payments to the beneficial owners is the responsibility of participants.
A beneficial owner will not be entitled to receive physical delivery of
Debentures. Accordingly, each beneficial owner must rely on the procedures of
DTC to exercise any rights under the Debentures.
DTC may discontinue providing its services as securities depository with
respect to the Debentures at any time by giving reasonable notice to GPU. In the
event no successor securities depository is obtained, certificates for the
Debentures will be printed and delivered. If GPU decides to discontinue use of
the DTC system of book-entry transfers, certificates for the Debentures will be
printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that GPU believes to be reliable, but GPU does
not take responsibility for the accuracy of this information.
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UNDERWRITING
Subject to the terms and conditions stated in the underwriting agreement,
each underwriter named below has severally agreed to purchase, and GPU has
agreed to sell such underwriter, the principal amount of Debentures set forth
opposite the name of such underwriter.
Name Series A Debentures Series B Debentures
---- ------------------- -------------------
Salomon Smith Barney Inc.
----------- -----------
TOTAL
The underwriting agreement provides that the obligations of the several
underwriters to purchase the Debentures included in this offering are subject to
approval of certain legal matters by counsel and to certain other conditions.
The underwriters are obligated to purchase all the Debentures if they purchase
any of the Debentures.
The underwriters, for whom Salomon Smith Barney Inc. are acting as
representatives, propose to offer some of the Debentures directly to the public
at the applicable public offering price set forth on the cover page of this
prospectus and some of the Debentures to certain dealers at the applicable
public offering price less a concession not in excess of:
---% of the principal amount in the case of the Series A Debentures; and
---% of the principal amount in the case of the Series B Debentures.
The underwriters may allow, and such dealers may reallow, a concession to
certain other dealers not in excess of:
---% of the principal amount in the case of the Series A Debentures; and
---% of the principal amount in the case of the Series B Debentures.
After the initial offering of the Debentures to the public, the public
offering prices and such concessions may be changed by the representatives.
In connection with the offering, Salomon Smith Barney Inc. on behalf of the
underwriters may purchase and sell Debentures in the open market. These
transactions may include over-allotment, syndicate covering transactions and
stabilizing transactions. Over-allotment involves syndicate sales of Debentures
in excess of the principal amount of the particular series of Debentures to be
purchased by the underwriters in the offering, which creates a syndicate short
position. Syndicate covering transactions involve purchases
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of the respective series of Debentures in the open market after the distribution
has been completed in order to cover syndicate short positions. Stabilizing
transactions consist of certain bids or purchases of the respective series of
Debentures made for the purpose of preventing or retarding a decline in the
market price of such series of Debentures while the offering is in progress.
The underwriters also may impose a penalty bid. Penalty bids permit the
underwriters to reclaim a selling concession from a syndicate member when
Salomon Smith Barney Inc., in covering syndicate short positions or making
stabilizing purchases, repurchases Debentures originally sold by that syndicate
member.
Any of these activities may cause the price of the Debentures of that
particular series to be higher than the price that otherwise would exist in the
open market in the absence of such transactions. These transactions may be
effected in the over-the-counter market or otherwise and, if commenced, may be
discontinued at any time.
In addition to the underwriting discounts, GPU estimates that its total
expenses of this offering will be approximately $430,000.
The representatives have performed certain investment banking, commercial
banking and advisory services for GPU or certain of its affiliates from time to
time for which they have received customary fees and expenses. The
representatives may, from time to time, engage in transactions with and perform
services for GPU or certain of its affiliates in the ordinary course of their
business.
GPU has agreed to indemnify the underwriters against certain liabilities,
including liabilities under the Securities Act of 1933, or to contribute to
payments the underwriters may be required to make in respect of any of those
liabilities.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to GPU's Annual Report on Form 10-K for the year ended December 31,
1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL OPINIONS
The legality of the Debentures will be passed upon for GPU by Thelen Reid &
Priest LLP, New York, New York, and Ryan, Russell, Ogden & Seltzer LLP, Reading,
Pennsylvania, counsel for GPU, and for the underwriters by Winthrop, Stimson,
Putnam & Roberts, New York, New York. Thelen Reid & Priest LLP and Winthrop,
Stimson, Putnam & Roberts may rely as to all matters of Pennsylvania law upon
the opinion of Ryan, Russell, Ogden & Seltzer LLP. Winthrop, Stimson, Putnam &
Roberts also serves as legal counsel to FirstEnergy and certain of its
affiliates in connection with FirstEnergy's merger with GPU and certain other
matters.
-------------------
21
<PAGE>
You should rely only on the information contained or incorporated by
reference in this prospectus. GPU has not authorized anyone else to provide you
with different information. GPU is not making an offer of these Debentures in
any jurisdiction where the offer is not permitted. You should not assume that
the information in this prospectus or any prospectus is accurate as of any date
other than the date on the front of the prospectus.
22
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
Debentures being registered, other than underwriting and/or agents compensation,
are:
Filing Fee for Registration Statement....... $103,448
Legal Fees.................................. 87,500*
Accounting Fees............................. 40,000*
Printing (Form S-3, prospectus, etc.)....... 20,000*
Fees of the Trustee......................... 25,000*
Rating agencies' fees....................... 140,000*
Miscellaneous............................... 9,052*
------
Total....................................... $430,000*
========
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 37 of the By-Laws of GPU provides as follows:
"(a) A director shall not be personally liable for monetary damages as
such for any action taken, or any failure to take any action, on or after
January 27, 1987 unless the director has breached or failed to perform the
duties of his office under Section 1721 of the Pennsylvania Business Corporation
Law, and the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant to any criminal
statute, or the liability of a director for the payment of taxes pursuant to
local, state or Federal law.
(b) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
whether formal or informal, and whether brought by or in the right of the
corporation or otherwise, by reason of the fact that he was a director, officer
or employee of the corporation (and may indemnify any person who was an agent of
the Corporation), or a person serving at the request of the Corporation as a
director, officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise to
the fullest extent permitted by law, including without limitation
indemnification against expenses (including attorneys' fees and disbursements),
damages, punitive damages, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding unless the act or failure to act giving rise to the claim for
indemnification is finally determined by a court to have constituted willful
misconduct or recklessness.
(c) The Corporation shall pay the expenses (including attorneys' fees and
disbursements) actually and reasonably incurred in defending a civil or criminal
action, suit or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation, and may pay such expenses in advance on
<PAGE>
behalf of any agent on receipt of a similar undertaking. The financial ability
of such person to make such repayment shall not be a prerequisite to the making
of an advance.
(d) For purposes of this Section: (i) the Corporation shall be deemed to
have requested an officer, director, employee or agent to serve as fiduciary
with respect to an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise involves services
by, such person as a fiduciary with respect to the plan; (ii) excise taxes
assessed with respect to any transaction with an employee benefit plan shall be
deemed "fines"; and (iii) action taken or omitted by such person with respect to
an employee benefit plan in the performance of duties for a purpose reasonably
believed to be in the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the best interests
of the Corporation.
(e) To further effect, satisfy or secure the indemnification obligations
provided herein or otherwise, the Corporation may maintain insurance, obtain a
letter of credit, act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification agreements,
pledge or grant a security interest in any assets or properties of the
Corporation, or use any other mechanism or arrangement whatsoever in such
amounts, at such costs, and upon such other terms and conditions as the Board of
Directors shall deem appropriate.
(f) All rights of indemnification under this Section shall be deemed a
contract between the Corporation and the person entitled to indemnification
under this Section pursuant to which the Corporation and each such person intend
to be legally bound. Any repeal, amendment or modification hereof shall be
prospective only and shall not limit, but may expand, any rights or obligations
in respect of any proceeding whether commenced prior to or after such change to
the extent such proceeding pertains to actions or failures to act occurring
prior to such change.
(g) The indemnification, as authorized by this Section, shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in any
official capacity and as to action in any other capacity while holding such
office. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters arising prior to such
time, and shall inure to the benefit of the heirs, executors and administrators
of such person."
Sections 1741-1750 of the Pennsylvania Business Corporation Law authorizes
a corporation to provide in its by-laws for indemnification to be granted under
certain circumstances to its officers, directors and other agents against
expenses and liabilities incurred in connection with proceedings arising out of
such persons having taken action or failed to take action on behalf of the
corporation.
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<PAGE>
The foregoing rights of indemnification are not exclusive of any other
rights to which any director or officer (or his or her legal representatives)
may be entitled under any By-Law of GPU heretofore in effect, and apply to any
liability of any director or officer (or his or her legal representatives)
arising under any of the provisions of the Securities Act of 1933 only to the
extent that such rights of indemnification may be determined to be valid by a
court of competent jurisdiction.
Item 16. Exhibits.
1 --Form of Underwriting Agreement.
3-A(ii) --Articles of Incorporation of GPU, as amended--incorporated by
reference to Exhibit 3-A-2, 1996 Annual Report on Form 10-K, SEC
File No. 1-6047.
3-B --By-Laws of GPU, as amended--incorporated by reference to Exhibit
3-B, 1999 Annual Report on Form 10-K, SEC File No. 1-6047.
4-A --Form of Debenture Indenture.
4-B --Form of Officer's Certificate establishing terms of Debentures.
4-C --Form of Debenture--included in the form of Officer's Certificate
contained in Exhibit 4-B.
5-A --Opinion of Thelen Reid & Priest LLP.
5-B --Opinion of Ryan, Russell, Ogden & Seltzer LLP.
12-A --Statement Showing Computation of Consolidated Ratio of Earnings
to Fixed Charges - incorporated by reference to Exhibit 12-A,
1999 Annual Report on Form 10-K, SEC file No. 1-6047.
12-B --Statement Showing Computation of Consolidated Ratio of Earnings
to Fixed Charges for the Six Months Ended June 30, 2000.
12-C --Statement Showing Computation of Consolidated Ratio of Earnings
to Fixed Charges for the Twelve Months Ended June 30, 2000.
23-A --Consent of Thelen Reid & Priest LLP--included in its opinion
filed as Exhibit 5-A.
23-B --Consent of Ryan, Russell, Ogden & Seltzer LLP--included in its
opinion filed as Exhibit 5-B.
23-C --Consent of PricewaterhouseCoopers LLP.
24 --Power of Attorney--included in signature page.
25 --Statement of Eligibility of Trustee under the Trust Indenture
Act of 1939.
The Exhibits listed above which have heretofore been filed with the SEC and
which are designated in prior filings as noted above are hereby incorporated by
reference and made a part hereof with the same effect as if filed herewith.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the SEC such
II-3
<PAGE>
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For the purpose of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities being
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE>
POWER OF ATTORNEY
KNOWN ALL BY THESE PRESENTS, that GPU, Inc. and each of its undersigned
officers and directors hereby constitutes and appoints each of I. H. Jolles,
B. L. Levy and T. G. Howson its/his/her true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution for it/him/her and
in its/his/her name, place and stead, in any and all capacities, to sign all
or any amendments (including post-effective amendments) of and supplements to
this registration statement on Form S-3 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto each such attorney-in-fact and agent full power and authority
to do and perform each every act and thing requisite and necessary to be done
in and about the premises, to all intents and purposes and as fully as said
Corporation itself and each said officer or director might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact
and agent, or his substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Morris, State of New Jersey, on October 12, 2000.
GPU, INC.
By /s/ F.D. Hafer
---------------------------------
F.D. Hafer
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ F.D. Hafer Chairman, President, October 12, 2000
---------------
F.D. Hafer Chief Executive Officer
and Director (Principal
Executive Officer)
/s/ B. L. Levy Senior Vice President October 12, 2000
---------------
and Chief Financial
B. L. Levy Officer
(Principal Financial
Officer)
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<PAGE>
/s/ B. L. Levy Senior Vice President October 12, 2000
---------------
B. L. Levy and Chief Financial
Officer
(Principal Financial
Officer)
/s/ P.E. Maricondo Vice President and October 12, 2000
-------------------
P.E. Maricondo Comptroller
(Principal Accounting
Officer)
/s/ T. H. Black Director October 12, 2000
----------------
T. H. Black
/s/ T. B. Hagen Director October 12, 2000
-----------------
T. B. Hagen
/s/ J. M. Pietruski Director October 12, 2000
--------------------
J. M. Pietruski
/s/ R. N. Pokelwaldt Director October 12, 2000
---------------------
R. N. Pokelwaldt
/s/ C.A. Rein Director October 12, 2000
--------------
C. A. Rein
/s/ B.S. Townsend Director October 12, 2000
------------------
B. S. Townsend
/s/ C. A. H. Trost Director October 12, 2000
-------------------
C. A.H. Trost
/s/ K. L. Wolfe Director October 12, 2000
----------------
K. L. Wolfe
/s/ P. K. Woolf Director October 12, 2000
-----------------
P. K. Woolf
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