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As filed with the Securities and Exchange Commission on , 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
DPL Inc.
(Exact name of registrant as specified in its charter)
OHIO 31-1163136
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
Courthouse Plaza S.W., Dayton, Ohio 45402
(513) 224-6000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
STEPHEN F. KOZIAR, JR., ESQ.
DPL Inc.
Courthouse Plaza S.W.
Dayton, Ohio 45402
(513) 224-6000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
The Commission is requested to send copies of all communications to:
ROBERT G. SCHUUR, ESQ. ROBERT A. WEIBLE, ESQ.
Reid & Priest Baker & Hostetler
40 West 57th Street 3200 National City Center
New York, New York, 10019 Cleveland, Ohio 44114
(Counsel for the Registrant) (Counsel for the Underwriters)
Approximate date of commencement of proposed sale to public:
At such time or times after the effective date as
the registrant shall determine.
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. |X|
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed
Proposed Maximum
Title of Each Class Amount Maximum Aggregate Amount of
of Securities to be Offering Price Offering Registration
to be Registered(1) Registered Per Share(2) Price(2) Fee
- -------------------------------------------------------------------------------
Common Shares,
$0.01 Par Value 3,500,000 Shs. $ 20.125 $70,437,500 $24,288.79
===============================================================================
(1) Includes Preferred Stock Purchase Rights of two-thirds of one Right per
Common Share.
(2) Estimated solely for the purpose of determining the registration fee.
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 of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
===============================================================================
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SUBJECT TO COMPLETION, DATED MARCH , 1994
PROSPECTUS
------------------------------------------------------------------------------
3,500,000
DPL Inc.
Common Shares
($0.01 par value)
DPL Inc. (the "Company"), may offer, from time-to-time, up to
3,500,000 of its Common Shares (the "Shares"). The Shares
will be sold through a syndicate of underwriters (the
"Underwriters"), including and represented by the
Underwriters named below and such other
Underwriters as the Company may determine, all
as described in "Plan of Distribution"
herein. The initial public offering price
of the Shares, the underwriting discount
and the proceeds to the Company are set
forth in the accompanying Prospectus
Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
CS FIRST BOSTON
- -------------------------------------------------------------------------------
The date of this Prospectus is , 1994.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus,
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company or any underwriter. This
Prospectus does not constitute an offer to sell or a solicitation of an offer
to buy any of the securities offered hereby in any jurisdiction to any person
to whom it is unlawful to make such offer or solicitation in such
jurisdiction. Neither the delivery of this Prospectus nor any sale made
thereunder shall, under any circumstances, create any implication that the
information is correct as of any time subsequent to the date hereof or that
there has been no change in the affairs of the Company since that date.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed with the Securities and Exchange Commission
(the "Commission"), pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), by the Company is incorporated in this Prospectus by
reference: The Annual Report on Form 10-K for the year ended December 31,
1993.
All documents filed by the Company pursuant to Section 13(a) or (c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference
herein and to be a part hereof from the respective dates of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this Prospectus
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified and superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents (without
exhibits, other than exhibits specifically incorporated by reference into such
documents) referred to above which have been or may be incorporated in this
Prospectus by reference. Written or telephone requests for such copies should
be directed to Mr. Thomas M. Jenkins, Group Vice President and Treasurer,
DPL Inc. P.O. Box 8825, Dayton, Ohio 45401 (telephone 513-259-7140).
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information may be inspected and copied at the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.; and at
the Commission's regional offices located at 500 West Madison Street, 14th
Floor, Chicago, Illinois; and Seven World Trade Center, 14th Floor, New York,
New York. Copies of such material can also be obtained at prescribed rates
from the Public Reference Section of the Commission at its principal office in
Washington, D.C. The Company's Common Shares are listed on the New York Stock
Exchange. Reports and other information filed with the Exchange can be
inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933 with respect to the securities offered
hereby. This prospectus omits certain information set forth in the
Registration Statement as permitted by the rules and regulations of the
Commission. For further information, reference is made to such Registration
Statement including the exhibits filed therewith.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the information
appearing elsewhere herein and in documents incorporated herein by reference.
THE OFFERING
The Company................. DPL Inc., a holding company, the principal
subsidiary of which is The Dayton Power and Light
Company ("DP&L"), an electric and natural gas
utility located in West Central Ohio.
Securities to be............ 3,200,000 Common Shares, $0.01 Par Value
Offered (a)(b) ("Shares"); 103,509,998 Common Shares outstanding
as of December 31, 1993.
Use of Proceeds............. To make a capital contribution to DP&L, which
intends to use the funds, along with internal
funds and short-term borrowings, to redeem all of
the outstanding shares of its Preferred Stock
Series D, E, F, H and I.
1994 Annualized Dividend
Rate Per Common Share...... $1.18
Book Value Per Common Share-
December 31, 1993(b)...... $10.51
SELECTED FINANCIAL INFORMATION
(Thousands, except per share amounts and percentages)
Twelve Months Ended December 31,
1993 1992 1991
------------- ------------- -------------
Income Statement Data:
Utility Service Revenues $1,151,298 $1,017,348 $ 995,581
Interest and Other Income 26,204 21,990 18,990
Total Income.............. 1,177,502 1,039,338 1,014,571
Net Income................ 138,981 138,803 119,210
Earnings Per Common
Share (b) (c)........... $1.42 $1.34 $1.15
Cash Dividend Per Common
Share (b) $1.12 $1.08 $1.08
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As of December 31, 1993
Actual As Adjusted (d)
-------------------- ---------------------
Capitalization:
Long-Term debt (excluding
current portion)......... $1,102,889 49.2% $1,102,889 49.8%
Preferred Stock
Without Mandatory
Redemption Provisions.. 82,850 3.7 22,851 1.0
With Mandatory
Redemption Provisions
(excluding current
portion)............... 30,000 1.3 0 0.0
Common Shareholders'
Equity................... 1,027,332 45.8 1,089,600 49.2
---------- ------ ---------- ------
Total
Capitalization..... $2,243,071 100.0% $2,215,340 100.0%
========== ====== ========== ======
(a) Does not include 300,000 Common Shares which may be offered in connection
with the exercise by the Underwriters of an over-allotment option.
(b) At December 31, 1993 there were 103,509,998 Common Shares outstanding,
which includes shares held in an Employee Stock Ownership Plan and another
employee plan. Pursuant to applicable accounting standards, 1993 per
share computations exclude Common Shares held in the Plans and are based
on 97,727,488 average Common Shares outstanding. Per Common Share
amounts for 1991 have been restated to reflect the three-for-two Common
Shares split paid in September 1992.
(c) Had the Company issued 3,200,000 Common Shares and DP&L redeemed its
Preferred Stock Series D, E, F, H and I at the beginning of 1993 and
capitalized issuance expenses and premiums, pro forma Earnings Per Common
Share for 1993 would have been $1.45.
(d) As adjusted to reflect the proposed issuance of 3,200,000 Common Shares
(assuming that an Underwriters' over-allotment option is not exercised) at
an assumed price of $20.125 per share and the application of the estimated
proceeds of $62,268,000 (net of estimated Underwriters discount and
$200,000 of issuance expenses) by DP&L, along with internal cash and/or
short-term borrowings, to the redemption of its Preferred Stock Series D,
E, F, H and I.
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THE COMPANY
The Company is a holding company incorporated under the laws of Ohio in
1986. Its principal subsidiary is The Dayton Power and Light Company
("DP&L"). DP&L is a public utility incorporated under the laws of Ohio in
1911. Located in West Central Ohio, DP&L furnishes electric service to an area
of approximately 6,000 square miles and furnishes natural gas service to
16 counties. In addition, DP&L provides steam heating service in downtown
Dayton, Ohio. DP&L serves an estimated population of 1.2 million. Principal
industries served include electrical machinery, automotive and other
transportation equipment, non-electrical machinery, agriculture, paper, and
rubber and plastic products. In 1993, approximately 76% and 21% of the
Company's operating revenues were derived from the sale by DP&L of electric
energy and gas, respectively, with the balance attributable to steam and
non-utility revenue.
The Company's principal executive and business office is located at
Courthouse Plaza Southwest, Dayton, Ohio 45402. Its telephone number is (513)
224-6000.
USE OF PROCEEDS
The Company plans to make a capital contribution of the net proceeds from
the sale of the Common Shares, estimated to be $62,268,000, to DP&L, which will
use the funds along with internal cash and/or short-term borrowings of
approximately $30 million, to redeem all of the outstanding shares of its
Preferred Stock, Series D, E, F, H and I.
COMMON SHARE DIVIDENDS
The rate and timing of dividends declared and paid by the Company on its
Common Shares will depend upon the earnings and financial condition of, and
dividend restrictions applicable to, the Company and its subsidiaries,
including DP&L, and upon other factors affecting dividend policy which are not
presently determinable. The current quarterly dividend rate on the Company's
Common Shares is $0.295 per share.
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The following table indicates dividends paid per Common Share and reported
high and low sale prices of the Common Shares on the composite tape as reported
by The Wall Street Journal.
Price Range
-----------------
High Low Dividends Paid
------- ------- --------------
1991 First Quarter..................... $14 $12-3/8 $.27
Second Quarter.................... 14-5/8 13-3/8 .27
Third Quarter..................... 15-1/8 13-3/8 .27
Fourth Quarter.................... 17-3/8 14-5/8 .27
1992 First Quarter..................... $17-3/8 $15-3/4 $.27
Second Quarter.................... 17-3/8 15-1/2 .27
Third Quarter..................... 19-1/2 17 .27
Fourth Quarter.................... 20 18-3/8 .27
1993 First Quarter..................... $21-1/4 $19-1/4 $.28
Second Quarter.................... 21 19 .28
Third Quarter..................... 21-7/8 20-3/8 .28
Fourth Quarter.................... 21-5/8 19 .28
1994 First Quarter (through March 11).. $21-5/8 $19-3/8 $.295
For a recent sale price of the Common Shares, see the cover of the
accompanying Prospectus Supplement.
The majority of funds required by the Company to operate and to enable it
to pay dividends on its Common Shares are expected to be derived from dividends
paid by DP&L on its Common Stock. Dividends on DP&L's Common Stock may be paid
only after full provision has been made for full cumulative dividends and
sinking fund requirements, if any, on its outstanding Preferred Stock. In
addition, so long as any Preferred Stock is outstanding, DP&L's Amended
Articles of Incorporation contain provisions restricting the payment of cash
dividends on any of its Common Stock if, after giving effect to such dividend,
the aggregate of all such dividends distributed subsequent to December 31, 1946
exceeds the net income of DP&L available for dividends on its Common Stock
subsequent to December 31, 1946, plus $1,200,000. The Supplemental Indentures
under which certain of DP&L's First Mortgage Bonds are outstanding include a
similar limitation. All earnings reinvested in the business of DP&L are
available for Common Stock dividends.
A Credit Agreement between the Company and certain banks requires that the
aggregate assets of DP&L and its subsidiaries (if any) constitute not less than
60% of the total consolidated assets of the Company, and that DP&L maintain
common shareholder's equity (as defined in the Credit Agreement) at least equal
to $550 million. As of December 31, 1993, such assets constituted 96.9% of the
total consolidated assets of the Company, and DP&L's common shareholder's
equity was $1,049,192,685.
The Company has an Automatic Dividend Reinvestment and Stock Purchase Plan
pursuant to which registered owners of its Common Shares and the Preferred
Stock of DP&L may automatically purchase additional Common Shares of the
Company by reinvesting their dividends or making supplemental cash
contributions, or both.
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DESCRIPTION OF COMMON SHARES
The authorized capital shares of the Company consist of 250,000,000 Common
Shares, $0.01 par value, of which 103,509,998 were outstanding at December 31,
1993 and 8,000,000 Preferred Shares, without par value. The Board of Directors
may authorize the issuance of the Preferred Shares in series and establish as
to each series the dividend rate, redemption rights, liquidation rights,
sinking fund requirements and conversion rights. No Preferred Shares of the
Company are outstanding and the Company has no plans to issue any Preferred
Shares.
All of the outstanding Common Shares are, and all of the Shares, when
issued, will be, fully paid and non-assessable. Shareholders of the Company do
not have any preemptive or other rights to purchase any Shares or other
securities of the Company.
Subject to the preferential dividend rights and sinking fund provisions of
any Preferred Shares which hereafter may be outstanding, holders of Common
Shares are entitled to receive such dividends as may be declared from time to
time by the Board of Directors out of funds legally available therefor. Upon
liquidation, holders of Common Shares are entitled to receive pro rata all
assets available to shareholders after payment to the holders of any Preferred
Shares of their preferential liquidation amounts.
Holders of Common Shares have and holders of the Shares will have
two-thirds of one preferred share purchase right (a "Right") for each Common
Share of the Company held by them. Each Right, evidenced by and traded with
the Common Shares, when it becomes exercisable, entitles the registered holder
to purchase from the Company one one-hundredth of a Preferred Share, Series A,
no par value, at an exercise price of $66 per one one-hundredth of a share (the
"Purchase Price").
The Rights will separate from the Common Shares and become exercisable
following the earlier to occur of (i) ten days following the date of public
disclosure that a person or group (an "Acquiring Person") has acquired
beneficial ownership of 15% or more of the outstanding Common Shares or
(ii) ten business days following the commencement of a tender offer or exchange
offer by a person other than the Company to acquire beneficial ownership of 15%
or more of the Outstanding Common Shares (the earlier of such dates being
called the "Distribution Date").
In the event a person becomes an Acquiring Person, the Rights would entitle
each holder of a Right to purchase at the Purchase Price, that number of Common
Shares having a market value equal to two times the Purchase Price. In the
event that, following the acquisition of 15% of the Common Shares, the Company
is acquired in a merger or other business combination or more than 50% of its
consolidated assets, earning power or cash flow is sold or otherwise
transferred or disposed of, the Rights would entitle each holder of a Right,
except for Rights held by an Acquiring Person, to purchase, at the Purchase
Price, that number of common shares of the acquiring company having a market
value of two times the Purchase Price. The Company is entitled to redeem or
amend the Rights, subject to certain conditions, prior to the Distribution
Date.
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The Rights will expire on December 13, 2001 unless earlier redeemed or
exchanged by the Company. The description and terms of the Rights are set
forth in a Rights Agreement between the Company and The First National Bank of
Boston, as Rights Agent, which has been filed as Exhibit 4(n) to the
Registration Statement of which this Prospectus constitutes a part, and to
which reference hereby is made.
Holders of Common Shares and Preferred Shares are entitled to one vote per
share upon all matters presented to shareholders. The Board of Directors is
divided into three classes, one of which is elected each year for a term of
three years. Shareholders may cumulate their votes in the election of
directors if notice has been given as provided by Ohio law. A majority of the
outstanding voting power of the Company constitutes a quorum at any meeting for
the election of directors.
The Common Shares are listed on the New York Stock Exchange.
The transfer agent and registrar for the Common Shares is The First
National Bank of Boston, Boston, Massachusetts.
PLAN OF DISTRIBUTION
The Company will sell the Shares to a syndicate of underwriters (the
"Underwriters"), including and represented by CS First Boston Corporation and
such other Underwriters as the Company may determine, all of which will be
named in the Prospectus Supplement for the Shares.
The Prospectus Supplement with respect to the Shares will set forth the
terms of the offering and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
The Shares will be acquired by the Underwriters for their own account and
may be resold at such time or times in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The Company will agree to indemnify the
Underwriters against certain civil liabilities, including liabilities under the
Securities Act. The underwriting agreement will provide that the obligations
of the Underwriters are subject to certain conditions precedent and that the
Underwriters will be obligated to purchase all of the Shares if any are
purchased.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
1993 have been so incorporated in reliance on the report of Price Waterhouse,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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The statements as to matters of law and legal conclusions made in the
documents which are incorporated in this Prospectus by reference with respect
to regulation, environmental matters and litigation, and made herein under
"Description of Common Shares" and in the fifth paragraph under "Common Share
Dividends," except insofar as such statements specify the amount of common
shareholder's equity, have been reviewed by S. F. Koziar, Jr., Esq., Group Vice
President and General Counsel of the Company, and have been made in reliance
upon his opinion and upon his authority as an expert. As of January 31, 1994,
Mr. Koziar owned 6,380 Common Shares of the Company.
LEGAL OPINIONS
The legality of the Shares has been or will be passed upon for the
Company by Mr. Koziar and by Messrs. Reid & Priest, 40 West 57th Street, New
York, N.Y. 10019, and for the Underwriters by Messrs. Baker & Hostetler,
3200 National City Center, Cleveland, Ohio 44114. In rendering their opinion,
Messrs. Reid & Priest will rely as to the matters of Ohio law upon Mr. Koziar.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Registration Fee . . . . . $ 24,289
Legal fees . . . . . . . . . . . . . . . . . . . . . . . . . . 50,000*
Accountants' fees . . . . . . . . . . . . . . . . . . . . . . 20,000*
Printing . . . . . . . . . . . . . . . . . . . . . . . . . . . 60,000*
Listing fee--New York Stock Exchange . . . . . . . . . . . . . 12,250
Transfer Agent's and Registrar's fees . . . . . . . . . . . . 1,500*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 31,961*
----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $ 200,000*
==========
*Estimated
Item 15. Indemnification of Directors and Officers.
Article VII of the Code of Regulations of the Company provides for
indemnification of directors, officers, employees or agents of the Company, or
individuals who serve at the request of the Company in such capacities for
other entities, against any and all expenses, judgments, fines and settlements
incurred by them in connection with claims and/or litigation arising out of
their service. Article VII provides that indemnification shall be available to
the full extent permitted by law including, without limitation,
Section 1701.13(E) of the Ohio Revised Code.
Under Ohio law, the liabilities against which a director and officer may be
indemnified and factors employed to determine whether a director and officer is
entitled to indemnification in a particular instance depend on whether the
proceeding in which the claim for indemnification arises was brought (a) other
than by and in the right of the corporation ("Category A Proceedings") or (b)
by and in the right of the corporation ("Category B Proceedings").
In Category A Proceedings, a corporation may indemnify each director and
officer against expenses, including attorneys' fees, judgments, fines,
penalties, and amounts paid in settlement actually and reasonably incurred by
him in connection with any threatened or actual proceeding in which he may be
involved by reason of his having acted in such capacity, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and with respect to any criminal action or
proceeding, he had no reasonable cause to believe that his conduct was
unlawful.
In Category B Proceedings, a corporation may indemnify each director and
officer against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement of any such
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification is permitted with respect to (i) any matter as to which such
person has been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless a court determines such
person is entitled to indemnification; or (ii) any matter in which the only
liability asserted against a director or officer relates to an unlawful loan,
dividend, distribution of assets or purchase or redemption of shares.
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Unless indemnification is ordered by a court, the determination as to
whether or not an individual has satisfied the applicable standards of conduct
(and therefore may be indemnified) is made by the corporation by a majority
vote of a quorum consisting of directors of the corporation who were not
parties to the action; or if such a quorum is not obtainable, or if a majority
vote of a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or by the shareholders of the corporation; or by
the court in which such action was brought.
Article VII does not limit in any way other indemnification rights to which
those seeking indemnification may be entitled. Ohio law requires
indemnification against expenses where a director or officer is successful on
the merits or otherwise in defense of any action. Consistent with Ohio law,
Article VII provides that expenses incurred by a director or officer in
defending any action may be paid by the Company in advance of final
disposition, upon receipt of an undertaking to repay such amount unless it is
ultimately determined that he is entitled to indemnification pursuant to
Article VII.
The Company maintains insurance policies covering its officers and
directors against certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended.
Item 16. List of Exhibits.
The following exhibits have been filed with the Securities and
Exchange Commission and are hereby incorporated herein by reference.
Incorporation By
Reference
----------------
3(a) Copy of Amended Articles of Incorporation Exhibit 3 to Report
of the Company dated January 4, 1991 and on Form 10-K for
amendment dated December 3, 1991 . . . . . year ended
December 31, 1991
(File No. 1-9052)
3(b) Copy of Amendment dated April 20, 1993 Exhibit 3(b) to
to the Amended Articles of Incorporation Report on Form 10-K
of the Company . . . . . . . . . . . . . . for year ended
December 31, 1993
(File No. 1-9052)
4(a) Copy of Composite Indenture dated as of Exhibit 4(a) to
October 1, 1935, between DP&L and Report on Form 10-K
The Bank of New York, Trustee with all for year ended
amendments through the Twenty-Ninth December 31, 1985
Supplemental Indenture . . . . . . . . . . (File No. 1-2385)
4(b) Copy of the Thirtieth Supplemental Exhibit 4(h) to
Indenture dated as of March 1, 1982, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-53906
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4(c) Copy of the Thirty-First Supplemental Exhibit 4(h) to
Indenture dated as of November 1, 1982, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-56162
4(d) Copy of the Thirty-Second Supplemental Exhibit 4(i) to
Indenture dated as of November 1, 1982, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-56162
4(e) Copy of the Thirty-Third Supplemental Exhibit 4(e) to
Indenture dated as of December 1, 1985, Report on Form 10-K
between DP&L and The Bank of New York, for year ended
Trustee . . . . . . . . . . . . . . . . . December 31, 1985
(File No. 1-2385)
4(f) Copy of the Thirty-Fourth Supplemental Exhibit 4 to
Indenture dated as of April 1, 1986, Report on Form 10-Q
between DP&L and The Bank of New York, for quarter ended
Trustee . . . . . . . . . . . . . . . . . June 30, 1986
(File No. 1-2385)
4(g) Copy of the Thirty-Fifth Supplemental Exhibit 4(h) to
Indenture dated as of December 1, 1986, report on Form 10-K
between DP&L and The Bank of New York, for the year ended
Trustee . . . . . . . . . . . . . . . . . December 31, 1986
(File No. 1-9052)
4(h) Copy of the Thirty-Sixth Supplemental Exhibit 4(i) to
Indenture dated as of August 15, 1992, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-53906
4(i) Copy of the Thirty-Seventh Supplemental Exhibit 4(j) to
Indenture dated as of November 15, 1992, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-56162
4(j) Copy of the Thirty-Eighth Supplemental Exhibit 4(k) to
Indenture dated as of November 15, 1992, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-56162
4(k) Copy of the Thirty-Ninth Supplemental Exhibit 4(k) to
Indenture dated as of January 15, 1993, Registration
between DP&L and The Bank of New York, Statement
Trustee . . . . . . . . . . . . . . . . . No. 33-57928
4(l) Copy of the Fortieth Supplemental Exhibit 4(m) to
Indenture dated as of February 15, 1993, Report on Form 10-K
between DP&L and the Bank of New York, for the year ended
Trustee . . . . . . . . . . . . . . . . . December 31, 1992
(File No. 1-2385)
<PAGE>
<PAGE>
4(m) Copy of the Credit Agreement dated as Exhibit 4(k) to
of November 2, 1989 between DPL Inc., DPL Inc.'s
The Bank of New York, as agent, and Registration
the banks named therein . . . . . . . . . Statement on
Form S-3
(File No. 33-32348)
4(n) Copy of Shareholder Rights Agreement Exhibit 4 to Report
between DPL Inc. and The First on Form 8-K dated
National Bank of Boston . . . . . . . . . December 13, 1991
(File No. 1-9052)
4(o) Copy of Certificate of Adjustment dated Exhibit to Amendment
August 20, 1992, pursuant to Rights No. 1 to DPL Inc.'s
Agreement . . . . . . . . . . . . . . . . Registration
Statement on
Form 8-A dated
December 3, 1991,
as amended by Form 8
filed August 21, 1992
(File 1-9052)
4(p) Copy of the Code of Regulations of Exhibit 4(j) to
the Company dated December 10, 1987 . . . DPL Inc.'s
Registration
Statement on
Form S-3
(File No. 33-32348)
The following exhibits are filed herewith. Page No.
--------
1 Form of Underwriting Agreement . . . . . .
5 Opinion of S. F. Koziar, Jr., Esq. . . . .
23(a) Consent of Price Waterhouse . . . . . . .
23(b) Consent of S. F. Koziar, Jr., Esq.
(included in Exhibit 5) . . . . . . . . .
24 Powers of Attorney (set forth in
signature page of Registration
Statement) . . . . . . . . . . . . . . . .
Pursuant to paragraph (b)(4)(iii)(A) of Item 601 of Regulation S-K, the
Company has not filed as an exhibit to this Form 10-K certain instruments with
respect to long-term debt because the total amount of securities authorized
thereunder does not exceed 10% of the total assets of the Company and its
subsidiaries on a consolidated basis, but hereby agrees to furnish to the SEC
on request any such instruments.
<PAGE>
<PAGE>
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, 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 the
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.
<PAGE>
<PAGE>
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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such 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.
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
DPL Inc., a corporation organized and existing under the laws of Ohio,
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 City of Dayton and State of Ohio on the 15th day of
March, 1994.
DPL INC.
By P. H. Forster
------------------------------------
(P. H. Forster, Chairman, President
and Chief Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints P. H. Forster, A. M. Hill and T. M. Jenkins and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities (including his capacity as a Director and/or officer
of DPL Inc.), to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or 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 and power of attorney have been signed below by the
following persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
T. J. Danis Director March 15, 1994
- -----------------------
(T. J. Danis)
Director , 1994
- ----------------------
(J. F. Dicke, II)
P. H. Forster Chairman, Director and March 15, 1994
- ---------------------- President (principal
(P. H. Forster) executive officer)
<PAGE>
<PAGE>
Ernie Green Director March 15, 1994
- -----------------------
(E. Green)
J. G. Haley Director March 15, 1994
- -----------------------
(J. G. Haley)
A. M. Hill Director March 15, 1994
- -----------------------
(A. M. Hill)
Director , 1994
- -----------------------
(W A. Hillenbrand)
T. M. Jenkins Group Vice President and March 15, 1994
- ---------------------- Treasurer
(T. M. Jenkins) (principal financial
officer and principal
accounting officer)
Director , 1994
- ----------------------
(R. J. Kegerreis)
Director , 1994
- -----------------------
(B. R. Roberts)
<PAGE>
<PAGE>
UNDERWRITING AGREEMENT
----------------------
CS First Boston Corporation
As Representative of the Several Underwriters,
Park Avenue Plaza,
New York, N.Y. 10055
Dear Sirs:
1. Introductory. DPL Inc., an Ohio corporation ("Company"), proposes
to issue and sell ________ of its Common Shares, $.01 par value per share ("Firm
Shares"), and also proposes to issue and sell to the Underwriters, at the option
of the Underwriters, an aggregate of not more than _______ additional Common
Shares, $.01 par value per share ("Optional Shares"), as set forth below. The
Firm Shares and the Optional Shares are herein collectively called the
"Securities". The Company hereby agrees with the several Underwriters named in
Schedule A hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 33- ), including a prospectus,
relating to the Securities has been filed with the Securities and Exchange
Commission ("Commission") and has been declared effective under the
Securities Act of 1933 ("Act"). The registration statement, as amended to
the date hereof, is hereinafter referred to as the "Registration
Statement", and the prospectus included in the Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of offering
of the Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act, including all
material incorporated by reference therein, is hereinafter referred to as
the "Prospectus". For purposes of this Agreement, "Effective Time" means
the date and time as of which the Registration Statement, or the most
recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
(b) On the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Act and the rules and regulations
of the Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
<PAGE>
be stated therein or necessary to make the statements therein not
misleading, and (ii) on the date of this Agreement, the Registration
Statement conforms, and at the time of filing of the Prospectus will
conform, in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. The preceding sentence does not
apply to statements in or omissions from the Registration Statement or
Prospectus based upon written information furnished to the Company by any
Underwriter through you specifically for use therein.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $ ______ per share, the respective
numbers of Firm Shares set forth opposite the names of the Underwriters in
Schedule A hereto. The Company will file with or mail to the Commission for
filing a supplement to the prospectus included in the Registration Statement to
reflect the terms of the offering of the Securities.
The Company will deliver the Firm Shares to you for the accounts of
the Underwriters against payment of the purchase price by certified or official
bank check or checks in New York Clearing House (next day) funds drawn to the
order of the Company at the office of Reid & Priest at 10:00 A.M., New York
time, on ________________, or at such other date and time not later than seven
full business days thereafter as you and the Company determine, such time and
date being herein referred to as the "First Closing Date". The certificates for
the Firm Shares so to be delivered will be in definitive form, in such
denominations and registered in such names as you may request in writing at
least 48 hours prior to the First Closing Date and will be made available for
checking and packaging at the office of ___________________ at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from you given to
the Company not more than 30 days subsequent to the date of the initial public
offering of the Firm Shares, the Underwriters may purchase, from time to time,
all or less than all of the Optional Shares at the purchase price per share to
be paid for the Firm Shares. The Company agrees to sell to the Underwriters the
number of Optional Shares specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Shares. Such Optional
Shares shall be purchased from the Company for the account of each Underwriter
in the same
-2-
<PAGE>
proportion as the number of Firm Shares set forth opposite such Underwriter's
name bears to the total number of Firm Shares (subject to adjustment by you to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Shares. No Optional Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company.
The time for the delivery of and payment for the Optional Shares,
being herein referred to as the "Second Closing Date" (which may be the First
Closing Date) and any time for the delivery of and payment for any Optional
Shares not purchased on the Second Closing Date, each together with the Second
Closing Date, a "Subsequent Closing Date," shall be determined by you but shall
be not later than five days after written notice of election to purchase
Optional Shares is given. The Company will deliver the Optional Shares to you
for the accounts of the several Underwriters against payment of the purchase
price therefor by certified or official bank check or checks in New York
Clearing House (next day) funds drawn to the order of the the Company, at the
office of Reid & Priest. The certificates for the Optional Shares will be in
definitive form, in such denominations and registered in such names as you
request in writing at least 48 hours prior to a Subsequent Closing Date and will
be made available for checking and packaging at the office of __________________
at a reasonable time in advance of such Subsequent Closing Date.
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.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will timely file the Prospectus with the Commission
pursuant to and in accordance with the appropriate subparagraph of Rule
424(b). The Company will advise you promptly of such filing pursuant to
Rule 424(b).
(b) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will not effect
such amendment or supplementation without your consent; and the Company
will also advise you promptly of any amendment or supplementation of the
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its
-3-
<PAGE>
best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when 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 amended or supplemented would include an
untrue 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 is necessary at any
time to amend the Prospectus to comply with the act, the Company promptly
will prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance; provided, however, if made after nine months from the date
hereof, such preparation and filing shall be at the expense of the
Underwriters. Neither your consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the Effective Date and (ii) the
date of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes that later
date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all exhibits,
except exhibits incorporated therein by reference), each related
preliminary prospectus, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as you request.
(f) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as you designate and will
continue such qualifications in effect so long as required for the
distribution; provided, that the Company shall not be required to qualify
as a foreign corporation in any jurisdiction or to give a general consent
to the service of process.
-4-
<PAGE>
(g) During the period of five years hereafter, the Company will furnish to
you and, upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report
to shareholders for such year; and the Company will furnish to you (i) as
soon as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act of
1934 or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as you may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Securities for sale under the
laws of such jurisdictions as you designate and the printing of memoranda
relating thereto, for the filing fee of the National Association of
Securities Dealers, Inc. relating to the Securities, and for expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including, except as provided in Section 5(e) of this Agreement, any
amendments and supplements thereto) to the Underwriters.
(i) The Company will not offer, sell, contract to sell or otherwise
dispose of any additional Common Shares without your prior written consent
for a period of 90 days after the date of the initial public offering of
the Securities, except issuances pursuant to the Company's Directors'
Deferred Stock Compensation Plan, Management Stock Incentive Plan,
Employees' Stock Plan or Dividend Reinvestment and Stock Purchase Plan.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Shares on the First
Closing Date and the Optional Shares on any Subsequent Closing Date will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) You shall have received a letter, dated the date of delivery
thereof (which shall be on or prior to the date of this Agreement), of
Price Waterhouse confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the
-5-
<PAGE>
Registration Statement comply in form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than five
days prior to the date of this Agreement, there was any change in the
capital stock or any increase in short-term indebtedness or long-term
debt of the Company and its subsidiaries consolidated or, at the date
of the latest available balance sheet read by such accountants, there
was any increase in consolidated net current liabilities or any
decrease in consolidated net assets, as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
(B) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants, there were any
decreases, as compared with the corresponding period of the previous
year in consolidated operating revenues or gross income or in the
total or per share amounts of consolidated net income; except in all
cases set forth in clauses (A) and (B) above for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
-6-
<PAGE>
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statement for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) of this Agreement. Prior to the
First Closing Date with respect to the Firm Shares and each Subsequent Closing
Date with respect to the Optional Shares, 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, to the knowledge of
the Company or you, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) except as contemplated in the Registration
Statement, any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including you, materially impairs the investment quality of the
Securities; (ii) any downgrading in the rating of any debt securities or
preferred stock of the Company or The Dayton Power & Light Company, an Ohio
corporation ("DP&L"), by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities or preferred stock of the Company (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including you, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Securities.
(d) You shall have received an opinion, dated such Closing Date, of S. F.
Koziar, Jr., Esq., Group Vice President and General Counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Ohio; the
Company is the sole holder of the issued
-7-
<PAGE>
and outstanding common shares of DP&L, and the Company is an exempt holding
company under The Public Utility Holding Company Act of 1935; the Company
has all requisite corporate power and authority to own its properties and
conduct its business as described in the Prospectus; DP&L has all requisite
corporate power and authority to carry on the public utility business in
which it is engaged and to own and operate the properties owned and used by
it in that business; the franchises of DP&L owned by it are sufficient
authority for it to carry on and transact its business as a public utility;
and the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which it owns or leases
substantial properties or in which the conduct of its business requires
such qualification;
(ii) The Securities delivered on such Closing Date and all other
outstanding Common Shares of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the shareholders of
the Company have no preemptive rights with respect to the Securities;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Securities by the Company,
except such as has been obtained and made under the Act and such as may be
required under state securities law;
(iv) The execution, delivery and performance of this Agreement and
the issuance and sale of Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement;
(v) The Registration Statement was declared effective under the Act
as of the date and time specified in such opinion, the Prospectus was filed
with the Commission pursuant to the subparagraph of Rule 424(b) specified
in such opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending
-8-
<PAGE>
the effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement and
the Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations;
such counsel has no reason to believe that either the Registration
Statement or the Prospectus, or any such amendment or supplement, as of
such respective dates, 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; the descriptions
in the Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such counsel does
not know of any legal or governmental proceedings required to be described
in the Registration Statement or Prospectus which are not described as
required or of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no opinion as
to the financial statements or other financial data contained in the
Registration Statement or the Prospectus; and
(vi) This Agreement has been duly authorized, executed and delivered
by the Company. In such opinion, such counsel may rely, as on matters of
New York law, upon the opinion of Reid & Priest.
(e) You shall have received an opinion, dated such Closing Date, of
Reid & Priest, counsel for the Company, covering the matters in (i)
(limited to the first clause thereof), (ii), (iii) (limited to consents,
approvals, authorizations or orders of, or filings with, United States
governmental bodies and agencies, other than courts), (v) (except as to the
descriptions of statutes, legal and governmental proceedings and contracts
and other documents), and (vi) of (d) above. In such opinion, such counsel
may rely, as on matters of Ohio law, upon the opinion of Mr. Koziar.
(f) You shall have received from Baker & Hostetler, counsel for the
Underwriters, such opinion or opinions, dated such Closing Date, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other related
matters as you may 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.
-9-
<PAGE>
(g) You shall have received a certificate, dated such Closing Date, of the
President or any Vice-President and a principal financial or accounting
officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material adverse
change in the financial position or results of operation of the Company and
its subsidiaries except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(h) You shall have received a letter, dated such Closing Date, of
Price Waterhouse which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than five days prior to such Closing Date for the
purposes of this subsection.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act 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 any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
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 an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through you
specifically for use therein; and provided further
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<PAGE>
that the foregoing indemnification with respect to the preliminary prospectus
shall not inure to the benefit of any
Underwriter if a copy of the Prospectus as then amended or supplemented (if the
Company shall have furnished to that Underwriter any amendments or supplements
thereto), but excluding any documents incorporated by reference therein, had not
been sent or given by an Underwriter or on its behalf to the person asserting
any such losses, claims, damages or liabilities, if required by law, at or prior
to the written confirmation of the sale of securities to such person.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act 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 any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 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
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
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<PAGE>
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f)
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of the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Securities hereunder on any Closing Date and
the aggregate number of shares of Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of shares of Securities that the Underwriters are obligated to purchase
on such Closing Date, you may make arrangements satisfactory to the Company for
the purchase of such Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date the non-
defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of shares of Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to you and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company except as provided in
Section 9 (provided that if such default occurs with respect to Optional Shares
after the First Closing Date, this Agreement will not terminate as to the Firm
Shares or any Optional Shares previously purchased). As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to
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<PAGE>
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the result thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If this Agreement is terminated pursuant to
Section 8, or if for any reason the purchase of the Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities. In no event shall the Company be liable to the
Underwriters for loss of anticipated profits.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
you at CS First Boston, Park Avenue Plaza, New York, N.Y. 10055, Attention:
Investment Banking Department, New Issue Processing Group or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at DPL
Inc., Courthouse Plaza Southwest, Dayton, Ohio 45402, Attention:
_____________________; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. You will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by you will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
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<PAGE>
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
If the foregoing is in accordance with you understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will be come a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
DPL Inc.
By: ______________________________
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CS FIRST BOSTON CORPORATION
By: ________________________
Acting on behalf of itself and as
the Representative of the several
Underwriters.
RAW0233:34022:94001:raw-60B.dup
bb 3/15/94
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<PAGE>
EXHIBIT 5
March 15, 1994
DPL Inc.
P.O. Box 1247
Dayton, OH 45401
RE: DPL Inc.
Registration Statement on Form S-3
3,500,000 Shares of Common Shares, $0.01 Par Value
Gentlemen:
As Group Vice President and General Counsel for DPL Inc. (the "Company"), I am
familiar with the corporate history, property, business and affairs of the
Company, and with the corporate proceedings taken by it in connection with the
issuance and sale of up to 3,500,000 shares of its Common Shares, $0.01 Par
Value (the "Shares"). In connection therewith I have examined such documents,
corporate records and other instruments as I have deemed necessary for the
purposes of this opinion, including:
(a) a copy of the Registration Statement on Form S-3 (together with
the exhibits thereto) to be filed by the Company with the Securities and
Exchange Commission (the "Commission") on or about the date hereof ("the
Registration Statement"), for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), including the
Prospectus constituting a part thereof and the documents incorporated in
the Prospectus by reference (the "Prospectus");
(b) a certified copy of the Articles of Incorporation of the
Company, as amended (the "Articles");
(c) certified copies of the resolutions adopted by the Board of
Directors of the Company at a meeting held on March 4, 1994, relating to
the issuance and sale of the Shares;
(d) a copy of the Code of Regulations of the Company as presently
in effect, certified by the Secretary of the Company;
(e) a specimen of the certificates for the Shares; and
(f) a form of Underwriting Agreement (the "Underwriting
Agreement"), a copy of which is being filed as an exhibit to the
Registration Statement.
<PAGE>
<PAGE>
Based upon the foregoing and upon my knowledge as Group Vice President and
General Counsel for the Company concerning the proposed transaction and the
corporate proceedings taken by the Company in connection therewith, I am of the
opinion that the Shares have been duly authorized and, when:
(i) the Registration Statement shall have become effective under
the Securities Act; and
(ii) the Company shall have entered into an Underwriting Agreement
with respect to the Shares in substantially the form filed as an exhibit to
the Registration Statement with the blanks therein appropriately filled in;
and
(iii) certificates for the Shares shall have been executed by the
proper officers of the Company and shall have been delivered against
receipt of the consideration specified and in the manner and pursuant to
the terms and provisions set forth in such Underwriting Agreement as
entered into by the Company;
the Shares will be validly issued, fully paid and nonassessable and have
the rights set forth in the Company's Articles.
I have also reviewed the statements as to matters of law and legal conclusions
made in the documents incorporated in the Prospectus by reference with respect
to regulation, environmental matters and litigation and made in the Prospectus
under the heading "DESCRIPTION OF COMMON SHARES" and in the fifth paragraph
under the heading "COMMON SHARE DIVIDENDS", except insofar as such statements
specify the amount of common shareholder's equity. Based upon my knowledge as
Group Vice President and General Counsel for the Company and such investigation
as I consider necessary for the purpose of giving this opinion, I am of the
opinion that, as to legal matters, such statements are true and correct.
I hereby consent to the reference to me in the headings "EXPERTS" and "LEGAL
OPINIONS" set forth in the Prospectus and to the filing of this opinion as an
Exhibit to the Registration Statement.
Sincerely,
Stephen F. Koziar, Jr.
----------------------------------------
Stephen F. Koziar, Jr.
Group Vice President and General Counsel
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<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 25, 1994, which appears on page 27 of the 1993 Annual Report to
Shareholders of DPL Inc., which is incorporated by reference in DPL Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1993. We also
consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears on page II-2 of such Annual Report on
Form 10-K. We also consent to the reference to us under the heading "Experts"
in such Prospectus.
Price Waterhouse
Dayton, Ohio
March 14, 1994
<PAGE>
