EXHIBIT 10.55
November 3, 1999
Northeast Utilities
107 Selden Street
Berlin, CT 06037
Dear Sirs:
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between Party A and Party
B through the Arranging Agent on the Trade Date specified below (the
"Transaction"). This Confirmation constitutes a "Confirmation" as referred to
in the Agreement specified below.
1. The definitions and provisions contained in the 1991 ISDA Definitions
(the "1991 Swap Definitions"), as supplemented by the 1998 Supplement to
the 1991 Swap Definitions (the "Swap Definitions") and in the 1996 ISDA
Equity Derivatives Definitions (the "Equity Definitions", together with
the Swap Definitions, the "Definitions") (in each case as published by
the International Swaps and Derivatives Association, Inc.) are
incorporated into this Confirmation. In the event of any inconsistency
between the Swaps Definitions and the Equity Definitions, the Equity
Definitions will govern, and between the Definitions and the provisions
and this Confirmation, this Confirmation will govern. References herein
to a "Transaction" shall be deemed to be references to a "Swap
Transaction" for the purposes of the Swap Definitions.
If Party A and Party B are parties to the 1992 ISDA Master Agreement (the
"Agreement"), this Confirmation supplements, forms a part of, and is
subject to such Agreement. If Party A and Party B are not yet parties to
the Agreement, they agree to use their best efforts promptly to
negotiate, execute, and deliver the Agreement through the Arranging
Agent, including Party A's standard form of Schedule and Addendum for
Physical Delivery of Shares attached thereto and made a part thereof,
with such modifications as Party A and Party B shall in good faith agree.
Upon execution and delivery by Party A and Party B of the Agreement,
this Confirmation shall supplement, form a part of, and be subject to
such Agreement. Until Party A and Party B execute and deliver the
Agreement, this Confirmation (together with all other Confirmations of
Transactions previously entered into between them, notwithstanding
anything to the contrary therein) shall supplement, form a part of, and
be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of
the first such Transaction between them, Party A and Party B had executed
that agreement (incorporating therein Party A's standard form of Schedule
and Addendum for Physical Delivery of Shares) and had specified that the
Automatic Early Termination provisions contained in Section 6(a) of such
agreement would apply.
The Agreement and each Confirmation thereunder will be governed by and
construed in accordance with the laws of the State of New York without
reference to choice of law doctrine.
Party A and Party B expressly acknowledge that, in reliance upon the
other party's entering into the Transaction evidenced by this
Confirmation, each party has made (or refrained from making) substantial
financial commitments and has taken (or refrained from taking) other
material actions.
All payments in connection with this Transaction shall be made in U.S.
Dollars.
In this Confirmation, "Party A" means Credit Suisse Financial Products,
"Party B" means Northeast Utilities and "Arranging Agent" means Credit
Suisse First Boston Corporation, acting solely in its capacity as
Arranging Agent for both Party A and Party B.
2. The terms of the Transaction to which this Confirmation relates are as
follows:
General Terms:
Trade Date: November 3, 1999
Effective Date: November 3, 1999
Termination Date: December 31, 2000 subject to
adjustment in accordance with the
Following Business Day Convention,
the terms of the Party B Net
Settlement Option, the Party A
Optional Termination and the Party B
Optional Termination.
Transaction Type: Equity Forward
Seller: Party A
Buyer: Party B (sometimes also referred to
as the "Issuer").
Shares: Common Shares, par value $5.00, of
Party B.
Closing Price on the Exchange
As of the Business Day Prior
To the Trade Date: $21.0625
Notional Amount: Initially, an amount equal to the
Accumulated Adjusted Principal Share
Amount, up to an amount equal to the
Principal Share Amount, in each case
multiplied by the Initial Share
Price.
Principal Share Amount: The number of Shares that represent
purchase prices in an aggregate
principal amount of $100,000,000.
Accumulated Adjusted Principal
Share Amount: On any Valuation Date during the
Initial Pricing Period the aggregate
number of Shares purchased by Party
A up to the Principal Share Amount,
for which full payment has been made
by Party A.
Initial Share Price: The weighted average of the Average
Share Prices for all Valuation Dates
occurring during the Initial Pricing
Period or, if the last day of a
Calculation Period shall occur prior
to the completion of the Initial
Pricing Period, the weighted average
of the Average Share Price for all
Valuation Dates occurring to and
including the last day of the
relevant Calculation Period.
Average Share Price: For any Valuation Date, the weighted
average price of the Shares purchased
by Party A on such Valuation Date
(plus a $0.04 per share commission
charged by Party A).
Initial Pricing Period: The earlier to occur of (i) the
Business Day that is 22 trading days
prior to the acquisition by Party B
of Yankee Energy System, Inc.
pursuant to the terms of the
Agreement and Plan of Merger dated as
of June 14, 1999 between Yankee
Energy System, Inc. and Party B (the
"Merger Agreement"), which
acquisition is currently expected to
be April 15, 2000, subject to
extension to such later date as is
permitted by the Merger Agreement,
and for which Party B has provided
written notice to Party A through the
Arranging Agent and (ii) the Exchange
Business Day on which Shares with an
aggregate purchase price of
$100,000,000 have been purchased.
Valuation Date: In respect of the Initial Pricing
Period, any Exchange Business Day on
which a Market Disruption Event has
not occurred. In respect of the
Final Pricing Period, any Exchange
Business Day on which a Registration
Suspension Event or Market Disruption
Event has not occurred.
Exclusion Period: The first minute of trading and the
last one-half hour before the
scheduled close of trading on the
Exchange.
Calculation Period: The period from and including a
Calculation Period Interest Reset
Date to but excluding the next
succeeding Calculation Period
Interest Reset Date, provided that,
the first Calculation Period Interest
Reset Date will commence on the
Effective Date and the final
Calculation Interest Period will end
on and exclude the Termination Date.
Calculation Period
Interest Reset Dates: The 15th day of each February, May,
August and November, commencing on
November 15, 1999.
Party A Calculation Period
Payment Dates: The 15th day of each February, May,
August and November, commencing on
November 15, 1999.
Party A Payment: The Dividend Amount (as defined
below).
Party B Calculation Period
Payment Dates: The 15th day of each February, May,
August and November, commencing on
November 15, 1999.
Party B Payment: An amount in U.S. Dollars equal to
the Interest Amount determined as of
the relevant Party B Calculation
Period Payment Date.
Floating Rate Option: USD-LIBOR-BBA
Spread: 2.5% per annum
Designated Maturity: 3 months
Interest Amount/Net
Interest Amount: The payment obligation of Party A and
Party B on such Calculation Period
Payment Dates in respect of the
Dividend Amount (defined below) and
any Interest Amounts shall be
netted, such that the party obligated
to pay the greater amount shall pay
to the other party, through the
Agent, an amount equal to the
difference between such amounts (the
"Net Interest Amount").
For each Calculation Period during
the Initial Pricing Period, an amount
equal to the product of (i) the
weighted average Notional Amount for
such Calculation Period and (ii) USD-
LIBOR-BBA, plus Spread, and for each
Calculation Period thereafter, the
product of the Notional Amount and
ISD-LIBOR-BBA, plus Spread (subject
to adjustment in all cases in
accordance with the Following
Business Day Convention).
In the case either Net Cash Settlement
or Net Share Settlement has been
designated as the Method of
Settlement, the Notional Amount (and
the accrued interest attributable
thereto) shall be reduced during the
Final Reference Share Price Pricing
Period by amounts equal to the Net
Proceeds (defined below) received by
the Selling Agent in respect to sales
of the Shares, which reduction shall
occur on the Business Day on which
such Net Proceeds are received as
immediately available funds by the
Selling Agent. The Calculation Agent
may rely on the information provided
pursuant to "(D)-Physical Settlement"
hereunder unless the Selling Agent
delivers notice of any failure to
receive an anticipated payment in
respect of the Shares sold or because
of any Settlement Disruption Event or
an amendment to the time of payment in
respect of any Shares sold.
Dividend Amount: An amount in USD equal to the sum of:
(i) The aggregate amount in respect of
all dividends declared by the Issuer
to which the record holder of the
Principal Share Amount (provided,
however, that for purpose of
determining the Dividend Amount in
the case either Net Cash Settlement
or Net Share Settlement has been
designated as the Method of
Settlement, the Principal Share
Amount shall be reduced by the number
of Shares sold by the Selling Agent
prior to the record date in respect
of any dividend declared in respect
of the Shares during the Final
Reference Share Price Pricing Period)
would be entitled by virtue of the
occurrence of a dividend record date
during the period from the Effective
Date to the Settlement Date (other
than any Lagging Dividend Payment
Amount or any dividends resulting in
an Adjustment due to a Potential
Adjustment Event); and
(ii) An amount representing the interest
that could have been earned on such
dividends described in (i) at a rate
equal to USD-LIBOR-BBA for a
designated maturity of one month (any
non-conforming period shall be
linearly interpolated by the
Calculation Agent) for the period
from the date that such dividends
were or would have been received, for
which a Party A Calculation Period
Payment Date is a compounding date;
the applicable compounding rate for
each compounding period is USD-LIBOR-
BBA with a designated maturity of one
month, for which the Day Count
Fraction is Actual/360 and the
Following Business Day Convention
will apply, and for which compounding
is applicable to the Settlement Date
Lagging Dividend Payment
Amount: In the event that a dividend is
declared and payable to a holder of
record prior to the Settlement Date
of this Transaction but such dividend
has not been paid on or before such
Settlement Date, Party A agrees to
pay to Party B through the Arranging
Agent an amount equal to the
dividends received by Party A in
respect of the Number of Shares on
the next succeeding Business Day
after the payment is received.
Day Count Fraction: Actual/360
Additional Party B Payment: On the Effective Date, Party B shall
pay to Party A, through the Arranging
Agent, a structuring fee equal to
$1,250,000.
Party A and Party B Final Payments
Termination Settlement
Payment Options: In respect of the Termination Date
(including, in case any Event of
Default or Termination Event has
occurred, the related Early
Termination Date) Party B shall elect
one of the following Settlement
Options (each a "Method of
Settlement"):
(A) Gross Physical
Settlement: Unless Party B has specified Net Cash
Settlement or Net Share Settlement in
accordance with the terms hereof, on
the Settlement Date, Party A will
through the Arranging Agent, deliver
the Principal Share Amount to Party
B, and Party B will pay to Party A an
amount equal to the sum of (i) the
Notional Amount and (ii) the Net
Interest Amount.
(B) Net Cash
Settlement: If Party B has specified Net Cash
Settlement as the Method of
Settlement, the Selling Agent will
sell a number of Shares equal to the
Principal Share Amount, in accordance
with the terms hereof. On the
related Settlement Date, Party A will
pay to Party B, an amount in USD
equal to the product of the Principal
Share Amount and the Final Reference
Share Price, and Party B will pay to
Party A, through the Arranging Agent,
an amount in USD equal to the sum of
(i) the Notional Amount and (ii) the
Net Interest Amount (which will
reduce the amount due from Party B if
the Net Interest Amount is negative).
The payment obligations of Party A
and Party B on such date in respect
of such amounts shall be netted, such
that the party obligated to pay the
greater amount shall pay to the other
party, through the Arranging Agent,
an amount equal to the difference
between such amounts.
If Party A is required to pay such
differences on such Settlement Date
the Selling Agent, from the aggregate
Net Proceeds (defined below) of the
sales of Shares, will pay such
difference to Party B in accordance
with the preceding sentence and pay
the remainder of such proceeds to
Party A. If Party B is obligated to
pay such difference, Party B will pay
such amount to Party A through the
Arranging Agent and the Selling Agent
will pay the aggregate Net Proceeds
of the sales of Shares to Party A.
(C) Net Share
Settlement: If Party B has specified Net Share
Settlement as the Method of
Settlement, the Selling Agent shall
sell, in accordance with the terms
hereof, such number of Shares from
the Principal Share Amount that will
generate aggregate Net Proceeds equal
to the sum of (i) the Notional
Amount, and (ii) the Net Interest
Amount.
If during the Final Reference Share
Price Pricing Period Party A receives
aggregate Net Proceeds equal to the
sum of (i) the Notional Amount and
(ii) the Net Interest Amount (which
will reduce the amount due from Party
B if the Net Interest Amount is
negative) from the sale of a number
of Shares that is less than the
Principal Share Amount, on the
relevant Settlement Date the Selling
Agent shall deliver to Party B, a
number of Shares equal to the excess
of the Principal Share Amount less
such number of Shares sold by the
Selling Agent during such period (the
"Party A Net Share Settlement
Delivery").
If during the Final Reference Share
Price Pricing Period the Selling
Agent sells a number of Shares equal
to the Principal Share Amount and
Party A receives aggregate Net
Proceeds from such sales in an amount
that is less than the sum of (i) the
Notional Amount and (ii) the Net
Interest Amount, Party A shall notify
Party B, through the Arranging Agent,
of such fact, and by 4:30 p.m. New
York time on the second Exchange
Business Day following such
notification Party B shall deliver a
number of additional Shares (which
Party A reasonably estimates is equal
in value to the Shortfall (defined
below)) (the aggregate number of
additional Shares, delivered pursuant
to this Net Share Settlement
methodology, the "Party B Net Share
Settlement Delivery") to the Selling
Agent, which will be sold by the
Selling Agent using the Offering
Method determined pursuant to this
Confirmation as described below (to
the extent that such sales are
required to generate aggregate Net
Proceeds equal to the excess of (A)
the sum of (i) the Notional Amount
and (ii) the Net Interest Amount over
(B) the aggregate Net Proceeds
received by the Selling Agent from
the sale of the Principal Share
Amount (for purposes of determining
the obligation of Party B in
connection with Net Share Settlement,
the term "Shortfall" at anytime and
from time to time means the US Dollar
amount by which the sum of (i) the
Notional Amount plus (ii) the Net
Interest Amount exceeds the aggregate
Net Proceeds, if any, actually
received from the sale of (i) all or
a portion of the Number of Shares
plus (ii) additional Shares delivered
pursuant to the Party B Net Share
Settlement Delivery)). The Selling
Agent shall use its best efforts to
sell only such additional Shares as
shall generate aggregate Net Proceeds
equal to the Shortfall and return the
excess Shares, if any, to Party B. In
the event the additional Shares
delivered by Party B to the Selling
Agent are sold for an amount that is
less than the Shortfall, the Selling
Agent shall notify Party B, through
the Arranging Agent, of such fact and
by 4:30 p.m. New York time on the
second Exchange Business Day
following such notification Party B
shall deliver additional Shares to
Party A, through the Arranging Agent,
and, subject to Party B's delivery of
a Sale Revocation and Designation
Notice (defined below) in connection
with Physical Settlement (defined
below), Party B shall continue to so
deliver additional Shares upon
notification until the aggregate Net
Proceeds received by the Selling
Agent from the sale of all such
Shares delivered by Party B to Party
A results in a Shortfall equal to
zero; provided, however, that
notwithstanding Party B's obligations
set forth in Appendix A hereto, in
the event that Party B is required
pursuant to this paragraph to deliver
additional Shares and is unable to
deliver additional Shares which are
at the time of delivery duly
authorized, validly issued, fully
paid and nonassessable and free of
any liens, claims or encumbrances
(except liens, claims or encumbrances
pursuant to this Transaction), or
Party B otherwise fails to deliver
such additional Shares and such
inability or failure continues for
five Exchange Business Days (the "Net
Share Settlement Incapacity Event"),
such Net Share Settlement shall be
deemed terminated and Party B shall
be obligated to pay Party A within
five Business Days from the date of
the Net Share Settlement Incapacity
Event an amount in cash equal to the
amount of the Shortfall that has not
been received from the sale of
additional Shares as of the date of
the Net Share Settlement Incapacity
Event and the Selling Agent shall
deliver to Party B any additional
Shares received in respect of such
Shortfall and not sold by the Selling
Agent as of the date of the Net Share
Settlement Incapacity Event.
The term "Net Proceeds" in respect of
a sale of Shares shall mean gross
proceeds of such sale less reasonable
and customary discounts, fees,
commissions and expenses (the "Sale
Expenses"), including, but not
limited to, reasonable commissions,
discounts, fees and expenses
customarily payable to
underwriter(s) in the case of a
Registered Offering (defined below)
or to a placement agent in the case
of an Exempt Offering (defined
below), which may include reasonable
amounts customarily payable to the
Selling Agent acting as underwriter
or placement agent, as well as any
additional reasonable fees and
expenses of any dealers engaged by
any such underwriter or placement
agent which are customarily payable.
(D) Physical
Settlement: In the event Party B elects either
Net Cash Settlement or Net Share
Settlement, the Selling Agent agrees
to provide the Calculation Agent and
Party B not later than 5:00 PM on any
Business Day on which it has sold
Shares a report through the Arranging
Agent of the number of Shares sold,
the average sale price and the
aggregate Net Proceeds received by
the Selling Agent from such sales and
a reasonable breakdown of the Sales
Expenses.
At any time after the designation of
the Method of Sale, and if
applicable, the Offering Method, but
prior to the execution and delivery
of any underwriting agreement with
respect to the Shares, Party B may
deliver to the Selling Agent and to
Party A through the Arranging Agent a
revocation of the Net Cash Settlement
or Net Share Settlement Method of
Settlement and request the suspension
of any further sales of Shares in
respect of this Transaction by the
Selling Agent (a "Sale Revocation
and Designation Notice") on the
Business Day immediately following
delivery of such Sale Revocation and
Designation Notice. Receipt of the
Sale Revocation and Designation
Notice shall obligate the Selling
Agent to suspend any sales and
solicitations of orders to buy the
Shares but shall not affect Party A's
obligations to perform any settlement
or delivery of Shares in connection
with sales previously agreed and
sales which are pending agreement on
the date such Sale Revocation and
Designation Notice is received and
which have been agreed before the
close of business on such date. Upon
receipt of a Sale Revocation and
Designation Notice, the Selling Agent
shall report to Party B the number of
Shares that remain unsold (which may
be some or all of the Principal Share
Amount and any additional Shares) as
of the Business Day succeeding
delivery of the Sale Revocation and
Designation Notice (the "Remaining
Shares"). In the event of delivery
of the Sale Revocation and
Designation Notice, Party B shall be
required to deliver to Party A
through the Arranging Agent a cash
amount in respect of the Remaining
Shares such that the amount paid by
Party B to Party A for the Remaining
Shares plus the aggregate Net
Proceeds received by the Selling
Agent from the sale of other Shares
in connection with the Net Cash
Settlement or the Net Share
Settlement equals (i) the Notional
Amount plus (ii) the Net Interest
Amount, and Party A shall be required
to deliver to Party B the Remaining
Shares. Settlement and delivery of
the Remaining Shares and payment
therefor shall be made to the parties
through the Arranging Agent on the
second Business Day after the
delivery of such Sale Revocation and
Designation Notice.
(E) Offering Method Upon receipt of notice designating
either Net Cash Settlement or Net
Share Settlement as the Method of
Settlement, Party B may determine the
offering method (the "Offering
Method") including whether the Shares
to be sold will be offered pursuant
to a registration statement filed or
to be filed (a "Registered Offering")
pursuant to the Securities Act of
1933 (the "1933 Act"), subject to
Party A's consent to a Registered
Offering, which consent shall not be
unreasonably withheld.
If Party B determines the Shares will
be offered in a Registered Offering
and Party A consents to a Registered
Offering (which consent shall not be
unreasonably withheld), Party B (and
to the extent required therein, Party
A) will use their reasonable efforts
to comply in all material respects
with the Registration Procedures set
forth in Appendix A attached hereto.
In the event that Party A, and its
underwriter(s), upon advice from
their respective counsel, reasonably
object to the form or substance of
the registration statement, Party A
will deliver to Party B through the
Arranging Agent a suspension request
stating the reason or reasons for
such objection ("Suspension Request")
and Party B will either (i) modify or
amend the registration statement to
address such reasonable objection(s)
or (ii) suspend the preparation of
such registration statement with
respect to the offering of the
Principal Share Amount. In addition,
if such registration statement has
been filed and identifies either
Party A or the Principal Share Amount
and Party B determines not to amend
or modify, or that it cannot amend or
modify the registration statement to
address Party A's or its
underwriter(s)' reasonable
objections, Party B will withdraw
such registration statement pursuant
to Rule 259 of the 1933 Act if such
registration statement relates solely
to the offering of the Principal
Share Amount. In the event that no
registration statement has been filed
identifying Party A or the Principal
Share Amount and Party B determines
not to amend or modify, or that it
cannot amend or modify the
registration statement to address
Party A's or its underwriter(s)'
reasonable objections, Party B may
within five Business Days of the
delivery of the Suspension Request
determine whether the Principal Share
Amount will be sold pursuant to an
offering that is exempt from the
registration requirements of the 1933
Act (an "Exempt Offering") as the
means of sale in respect of either a
Net Cash Settlement or a Net Share
Settlement or designate Gross
Physical Settlement as the Method of
Settlement. If, however, a
registration statement identifying
Party A or the Principal Share Amount
has been filed and such registration
statement is not amended to address
Party A's or its underwriter(s)
reasonable objections or has been
withdrawn, as set forth herein, then
not later than the third succeeding
Business Day from the receipt of the
Suspension Request Party B shall
deliver to Party A through the
Arranging Agent a notice designating
Gross Physical Settlement as the
Method of Settlement.
In the event Party A delivers to
Party B through the Arranging Agent a
notice that it will not consent to
Party B's determination that the
Principal Share Amount are to be sold
in a Registered Offering as provided
herein, Party B may, within five
Business Days from the delivery of
such notice, either revoke the Net
Cash Settlement or Net Share
Settlement Method of Settlement and
designate Gross Physical Settlement
as the Method of Settlement or elect
to have Party A pursue the
contemplated sale of Shares in
connection with Net Cash Settlement
or Net Share Settlement through an
Exempt Offering. If an Exempt
Offering is pursued and Party B and
its counsel object to the exemption
to be relied on pursuant to which
Shares are to be sold by either Party
A or the Selling Agent or the opinion
of counsel to Party A or any related
documentation to be used in
connection with the Exempt Offering,
Party B may deliver a notice of
suspension to Party A through the
Arranging Agent and Party B may
either (i) designate Gross Physical
Settlement as the Method of
Settlement, (ii) renew its
solicitation of Party A's consent for
a Registered Offering within five
Business Days of its delivery of any
notice of objection or (iii) subject
to the consent of Party A and its
counsel (which consent will not be
unreasonably withheld), request an
alternative Exempt Offering.
Notwithstanding the foregoing, if an
Event of Default or Termination Event
has occurred and is continuing with
respect to Party B, Party B will be
foreclosed from making any
determination as to the Offering
Method and, subject to the terms
hereof and all applicable regulatory
requirements, such determination
shall be in Party A's sole
discretion. In connection with any
Offering Method, Party B shall co-
operate with the reasonable
requirements of Party A and its
underwriter(s) and Party A and its
underwriter(s) shall co-operate with
the reasonable requests of Party B,
including without limitation
providing such additional information
as may reasonably be required so that
any offering document to be used does
not contain any untrue statement of a
material fact or omit to state a
material fact necessary in order to
make the statements made in such
offering document, in light of the
circumstances under which they were
made, not misleading.
Final Reference Share Price: In respect of the number of Shares
sold by the Selling Agent in
connection with a Net Cash Settlement
or a Net Share Settlement, the
average Net Proceeds per Share of all
sales of the Shares sold by the
Selling Agent in (i) transactions on
the Exchange at the exchange prices
received by the Selling Agent, if
any, (ii) a Registered Offering, if
any, based on the public offering
price and (iii) transactions with
recognized dealers or principals in
the private placement market which
are unaffiliated with Party A
pursuant to an Exempt Offering, if
any, and with or through which the
Selling Agent effects any sales of
Shares pursuant to a Net Cash
Settlement or Net Share Settlement,
which may be shortened by the
delivery of a Sale Revocation and
Designation Notice by Party B.
Final Reference
Share Price Pricing Period: The period commencing on the
Termination Date, and continuing
until the completion of the
deliveries and any sales of Shares
related thereto required for Net Cash
Settlement or Net Share Settlement.
Notwithstanding any other provisions
set forth herein, in the event that
the Settlement Date for this
transaction has been delayed to a
date that is the one year anniversary
of the Termination Date for any
reason, including, without
limitation, because a Net Share
Settlement or a Net Cash Settlement
has been designated and the Final
Reference Share Price Pricing Period
has not been completed, or in the
case of any designated Method of
Settlement because of any Market
Disruption Event or Settlement
Disruption Event, then on the
Business Day next succeeding such
anniversary, Party B shall be deemed
to have delivered a Sale Revocation
and Designation Notice to Party A
through the Arranging Agent
suspending any further sales pursuant
to the terms and conditions set forth
in "(D)- Physical Settlement".
Pursuant to such paragraph (D)-
Physical Settlement, on the date such
Sale and Revocation and Designation
Notice is delivered any unsold Shares
shall be deemed to be Remaining
Shares and the payment and delivery
procedures set forth in such
paragraph shall govern the payment
and delivery obligations of the
parties
Settlement Dates: To the extent not otherwise provided
for hereunder, each of (i) the third
Exchange Business Day following the
end of the Final Reference Share
Price Pricing Period in the case of
Net Cash Settlement or Net Share
Settlement, and (ii) the next
Exchange Business day following (a)
the Termination Date that Party B
specifies or is deemed to have
specified in a Termination Notice
hereunder specifying Gross Physical
Settlement as the Method of
Settlement or (b) the Termination
Date that is applicable in the event
Party B is deemed to have specified
Gross Physical Settlement as the
Method of Settlement in the case of
Gross Physical Settlement.
If a Settlement Disruption Event
prevents a Net Share Settlement or a
Net Cash Settlement on the day that
otherwise would have been the
Settlement Date, then the Settlement
Date will be the first succeeding day
on which settlement can take place
through the Clearance System unless a
Settlement Disruption Event prevents
settlement on each of the ten (10)
consecutive Clearance System Business
Days immediately following the
original date that, but for such
Settlement Disruption Event, would
have been the Settlement Date. In
that case, (a) if the Shares can be
delivered in any other commercially
reasonable manner, then the
Settlement Date will be the first day
on which settlement of a sale of
Shares executed on that tenth (10th)
Clearance System Business Day
customarily would take place using
such other commercially reasonable
manner of delivery (which other
manner of delivery will be deemed the
Clearance System for purposes of
delivery of the relevant Shares), and
(b) if the Shares cannot be delivered
in any other commercially reasonable
manner, then the Settlement Date will
be postponed until delivery can be
effected through the Clearance System
or any other commercially reasonable
manner.
Settlement Disruption Event: An event beyond the control of the
parties as a result of which (i) the
Clearance System cannot clear the
transfer of the Shares or (ii) in the
case of any Shares in physical
certificate form, the payment system
for bank fund transfers (e.g. the
Federal Reserve wire payment system)
cannot make electronic funds payments
or otherwise transfer funds in the
ordinary course.
Trading Day: An Exchange Business Day other than
an Exchange Business Day on which (i)
a Market Disruption Event occurs, or
(ii) Party B, by notice to Party A,
through the Arranging Agent, by 8:30
a.m., New York time, determines, on
the advice of counsel respecting
applicable federal securities laws,
that such day shall not be a Trading
Day for one or more purposes of this
Transaction specified by Party B in
accordance with such advice.
Exchange Business Day: Any day that is (or, but for the
occurrence of a Market Disruption
Event, would have been) a Trading Day
on the Exchange other than a day on
which trading on the Exchange is
scheduled to close prior to its
regular weekday closing time.
Market Disruption Event: The occurrence or existence on any
Exchange Business Day of any
suspension of or material limitation
imposed on trading (by reason of
movement in price exceeding limits
permitted by the relevant exchange or
otherwise) on the Exchange in the
Shares, if, in the reasonable
determination of the Calculation
Agent, such suspension or limitation
prevents such day from being used as
a Trading Day.
Exchange: The New York Stock Exchange.
Calculation Agent: Party A, whose determinations and
calculations hereunder as Calculation
Agent will be binding in the absence
of manifest error. Subject to the
foregoing, the Calculation Agent will
have no responsibility for good faith
errors or omissions in making any
determination or calculation as
provided herein.
Selling Agent: Credit Suisse First Boston
Corporation. When selling any Shares
pursuant to this Transaction, the
Selling Agent shall determine the
number of Shares to be sold on any
Trading Day and the price or prices
at which such Shares are sold,
provided, however, that it shall act
in a commercially reasonable manner
and on commercially reasonable terms,
and shall comply with applicable
securities laws, rules and
regulations, applicable to it and the
Transaction (including sales relating
thereto).
Party A and Party B hereby
acknowledge and agree that the
execution and delivery of this
Confirmation by the Selling Agent
does not constitute a commitment or
an obligation of the Selling Agent to
purchase or sell any Shares or any
other security as principal.
Party A Optional
Termination: In addition to any other termination
rights that Party A may have under
the Agreement, in the event of any
Merger Event, the terms of which are
Share-for-Other or Share-for-
Combined, pursuant to which a
registered holder of Shares is
entitled to receive cash
consideration in connection with the
Merger Event, Party A shall have the
right within three Business Days
after the payment of any cash
consideration in connection with the
Merger Event, to cause the
Transaction to terminate in part
before the originally scheduled
Termination Date by giving a
Termination Notice to Party B through
the Arranging Agent, designating a
Termination Date not earlier than
five Business Days after the delivery
date of the Termination Notice and
making the Partial Termination
Payments consisting of (i) a deemed
payment by Party B to Party A by
means of the Merger Termination
Payment (defined below) and (ii) the
payment by Party A to Party B of the
Premium Cash Merger Payment (defined
below) on the date designated as the
Termination Date.
"Merger Termination Payment" means an
amount equal to the product of (i)
the Termination Share Amount (defined
below) and (ii) the Per Share Cash
Component (defined below).
"Termination Share Amount" means the
number of Shares equal to the product
of the Principal Share Amount and a
fraction, the numerator of which is
equal to the Per Share Cash Component
and the denominator if which is equal
to the per share total consideration
of such offer.
"Per Share Cash Component" means the
per share cash component of any offer
to purchase the Shares underlying the
Merger Event.
"Premium Cash Merger Payment" means
the amount equal to the product of
(i) the Termination Share Amount and
(ii) the result of the per share
total consideration of any offer to
purchase the Shares underlying the
Merger Event, minus the Initial Share
Price, provided, however, that such
difference shall not be less than
zero.
Party B Optional Termination: In addition to any other termination
rights that Party B may have under
the Agreement, Party B may elect to
cause this Transaction to terminate
in whole, or in part, before the
originally scheduled Termination Date
for any reason by giving a
Termination Notice to Party A through
the Arranging Agent during the last
five Business Days prior to any Party
B Calculation Period Payment Date and
designating a Termination Date.
Except for the originally scheduled
Termination Date for which no written
notice is required, no Termination
Date designated hereunder may be set
unless Party A has received a written
notice not less than 30 Business
Days, in the case of either Net Cash
Settlement or Net Share Settlement
and not less than two Business Days
in the case of Gross Physical
Settlement in connection with the
relevant Method of Settlement.
Subject to the terms of this
Transaction, Party B shall give Party
A written notice, through the
Arranging Agent of the Method of
Settlement.
Registration Notice: Party B agrees that subsequent to the
Effective Date it will not file any
registration statement, amend a
previously filed registration
statement or commence any of the
procedures set forth in Appendix A
attached hereto with respect to any
Shares that may be sold in connection
with Net Cash Settlement or Net Share
Settlement without providing notice
to, and receiving the consent of,
Party A, which consent shall not be
unreasonably withheld.
Sale Notification: If the Selling Agent sells any Shares
acquired pursuant to this Transaction
in the Initial Transaction or in
either a Net Cash Settlement or a Net
Share Settlement, such sale(s) must
be in accordance with the terms and
conditions set forth herein and the
Selling Agent must notify Party B of
such sale(s) as provided herein by
telephonic notice, promptly confirmed
in writing.
Settlement Terms: In respect of the Termination Date
Party B shall specify whether Gross
Physical Settlement, Net Cash
Settlement or Net Share Settlement is
to apply. In the event Party B fails
to specify the Method of Settlement
as provided herein, Party B shall be
deemed to have specified Gross
Physical Settlement as the Method of
Settlement in respect of such
Termination Date.
Adjustment Events:
Method of Adjustment: Calculation Agent Adjustment.
Extraordinary Events:
Consequences of
Merger Events: Following each Merger Event:
(a) Share-for-Share: Alternative Obligation
(b) Share-for-Other: Alternative Obligation
(c) Share-for-Combined: Alternative Obligation
Nationalization or Insolvency: Cancellation and Payment
3. Miscellaneous
Transfer: Neither the Transaction nor any
interest or obligation in or under
the Transaction may be transferred
(whether by way of security or
otherwise) by either party without
the prior written consent of the
other party, except that a party may
make a transfer of the Transaction
pursuant to a consolidation or
amalgamation with, or merger with or
into, or transfer of all or
substantially all its assets to,
another entity, or upon or after any
default of the other party. Any
purported transfer that is not in
compliance with this paragraph will
be void.
Party B Representation and
Covenants: On each Exchange Business Day during
a Final Reference Share Price Pricing
Period, Party B hereby represents and
warrants to Party A that, unless
Party B notifies Party A, through the
Arranging Agent, that such day is not
a Trading Day, it has publicly
disclosed all material information
necessary for Party B to be able to
purchase or sell Shares in compliance
with applicable federal securities
laws. Party B hereby represents and
warrants to Party A that: (i) it has
entered into this Transaction in
connection with the Share repurchase
program announced publicly on June 3,
1998, and July 13, 1999 for purposes
consistent with those stated in such
public disclosures and (ii) on the
Trade Date and on the Settlement
Date, Party B has available to it
before and immediately after any
purchase of Shares pursuant to this
Transaction such orders, consents or
other authorities as may be required
by the SEC pursuant to rules and
regulations of the Public Utility
Holding Company Act of 1935 (the
"1935 Act"), with respect to the
execution, delivery and performance
of the forward purchase obligations
under this Transaction , and (iii) on
the filing date of any registration
statement or the commencement of any
offer not involving a public offering
in the case of any Net Cash
Settlement or Net Share Settlement,
the offering of Shares (or New Shares
as provided herein), on the
Settlement Date and on each day
during the Final Share Price Pricing
Period, will be made pursuant to the
orders, consents or other
authorizations that may be required
under the rules and regulations
promulgated under the 1935 Act ,
which will be in full force and
effect and, to Party B's knowledge,
will be free of any pending or
overtly threatened proceedings
contemplating the revocation or
modification of such order; provided,
however, in lieu of making the
representations and warranties and
agreeing the covenants set forth in
clauses (i) and (ii), delivering an
opinion of counsel addressing such
matters as Party A may reasonably
request and are customarily provided
in connection with the purchase and
sale of common stock, including,
without limitation, that Party B is
not subject to the 1935 Act, that no
authorization, consent or notice is
required in order for Party B to
perform any purchase or sale
obligation with respect to the Shares
other than any authorizations,
consents, filings or notices that may
be required under the 1933 Act and
any applicable state law that may be
required for the authorization of any
purchase of Shares. Party B also
represents that it is not subject to
regulation by any state, county or
municipal agency, authority, board,
council or similar body having
authority or jurisdiction over Party
B within the meaning of any
applicable state law, order or
regulation or any municipal
government or authority with the
capacity or power to regulate
electric utility or gas utility
companies ("Local Regulators") and
all approvals and consents from or
notices to any Local Regulator
required by Party B to execute and
deliver the Confirmation and to
perform the Transaction and the
related transactions contemplated
thereby have been received or given
and remain in full force and effect.
Party B hereby agrees that from the
Trade Date through and including the
Settlement Date, it will comply in
all material respects with all
corporate or, if applicable, similar
laws affecting its ability to perform
its repurchase obligations under this
Transaction, including any such
requirements of the SEC or any Local
Regulator. In the event that Party B
reasonably believes that at any time
during the term of this Transaction
Party B would be prohibited from
performing its repurchase obligations
under this Transaction as currently
contemplated without delivering
notice to or obtaining the consent of
the SEC or any Local Regulator, Party
B will provide notice thereof through
the Arranging Agent and designate a
date for Settlement, which shall be a
date on which Party B still satisfies
such requirements and for which no
notice or consent is required to
perform the repurchase obligations
contemplated by this Transaction.
Other Provisions: If, notwithstanding any other
provision of this Confirmation, this
Transaction is terminated at a time
when any law, rule or regulation,
including without limitation, the
1935 Act or any applicable state law,
order or regulation, prevents Party B
from repurchasing the Number of
Shares, Gross Physical Settlement
shall not apply. Each party agrees
that if delivery of the Shares on any
Settlement Date is subject to any
restriction imposed by a regulatory
authority (other than the federal
securities laws and the rules of the
SEC affecting Registered or Exempt
Offerings) that materially restricts
or prevents delivery of any such
Shares, the parties will negotiate in
good faith a procedure to effect
settlement of such affected Shares in
a manner which complies with any
relevant rules of such regulatory
authority.
Party B Undertakings: Party B hereby agrees that if it is
the object of any merger,
consolidation, amalgamation of Party
B with or into another entity (and
Party B is not the surviving entity)
or a third party acquires such number
of Shares or the right to control
such number of Shares (or the voting
power thereof) and the acquisition of
such number of Shares or the voting
power with respect thereto results in
the transfer of control of Party B
(within the meaning of Rule 405 of
the 1933 Act), then in the event that
(i) Alternative Obligation is elected
in respect of Consequences of Merger
Event - Share- for-Combined and (ii)
a material portion of Shares are
exchanged or exchangeable for New
Shares (as defined in the Equity
Definitions), then Party B shall
cause the issuer of such New Shares
to undertake and perform each and
every obligation and satisfy each and
every condition precedent of Party B
arising under this Confirmation with
respect to any purchase or sale of
the Shares, including, but not
limited to, the representations,
agreements, and covenants that relate
to the Shares and any purchase or
sale thereof, the exercise or
election of any Method of Settlement
or Offering Method, the participation
and preparation of any materials
relating to any registration
statement in connection with any
Registered Offering of Shares, and
the determinations and decisions
relating thereto, modified in all
cases, mutatis mutandis, to apply to
the issuer and to the New Shares. Any
failure by Party B to cause the
issuer of New Shares to achieve any
undertakings, performance or
satisfaction of any such obligations
to the reasonable satisfaction of
Party A shall be deemed an
irrevocable exercise of Gross
Physical Settlement option as the
Method of Settlement that shall be
deemed to supersede any prior
exercise of any Method of Settlement
Option.
Cessation and Suspension: If at any time during the Term of the
Transaction Party B is subject to any
legal or regulatory requirements
("Legal Requirements") or any
directly related policies or
procedures adopted by Party B with
respect to the Legal Requirements,
which, in Party B's reasonable
judgement requires it, or Party A if
acting on behalf of Party B, to
refrain from purchasing or selling
Shares on any Trading Day, Party B
shall give prompt telephonic notice
of the cessation of any further
purchases or sales of Shares and the
suspension of any further purchases
or sales of Shares (each, a
"Cessation Notice"), which cessation
and suspension shall remain in effect
until further notice from Party B.
Each telephonic notice of a Cessation
Notice shall be promptly confirmed in
writing. Notwithstanding the
foregoing, the delivery of a
Cessation Notice shall not affect any
obligation of Party A to deliver or
receive Shares in settlement of any
purchase or sale of Shares agreed
prior to the delivery of the
Cessation Notice.
Issuer Repurchase Safe Harbor: Assuming that Party B's conduct
complies with the requirements of
rule 10b-18 promulgated under the
1934 Act ("Rule 10b-18"), Party A
will use its best efforts to comply
with the manner of purchase, time,
price and volume requirements of Rule
10b-18 in connection with its
purchase of Shares under this
Transaction.
Limited Liability: No shareholder or trustee of Party B
shall be held to any liability
whatever for the payment of any sum
of money or for damages or otherwise
under this Confirmation, and this
Confirmation shall not be enforceable
against any such trustee in their or
his or her individual capacities or
capacity and this Confirmation shall
be enforceable against the trustees
of Party B only as such, and every
person, firm, association, trust or
corporation having any claim or
demand arising under this
Confirmation and relating to Party B,
its shareholders or trustees shall
look solely to the trust estate of
Party B for the payment or
satisfaction thereof.
Securities Contract: Each party hereby represents to the
other that it intends this
Transaction to be a securities
contract within the meaning of
Section 741 of Bankruptcy Code, as
amended (11 U.S.C. <section>741).
4. Credit Support Documents: Party A: None
Party B: Collateral Appendix
5. Account Details:
Payments to Party A:Citibank, NY
ABA # 021-000-089
A/C: Credit Suisse First Boston Corp.
A/C: 40804388
FFC: Northeast Utilities
A/C #: 2GA3P0
Payments to Party B: Fleet
ABA # 011500010
Acct No.: 50252481
Ref.: NU Share Repurchase
Delivery of Shares
to Party A: To be advised by written notice
within 30 days of the Trade Date
Delivery of Shares
to Party B: To be advised by written notice
within 30 days of the Trade Date
6. U.S. Private Placement Representations
As this Transaction may constitute the sale by Party A to Party B in the
case of this Transaction, and by Party B to Party A in the case of the
Number of Shares, in each case, through Arranging Agent, of a Security
or Securities (as defined in the 1933 Act), in addition to the
representations contained in Section 3 of the Agreement, Party B hereby
represents to Party A in respect of this Transaction and Party A
represents to Party B in respect of the Number of Shares (for purposes
of this Section 6, the representation of Party A with respect to
Securities shall be made with respect to the Number of Shares and the
representation of Party B shall be made with respect to the Transaction,
in accordance with Section 3 of the Agreement), as follows:
(a) Each party is acquiring such Securities through the Arranging Agent
for its own account as principal, for investment purposes only, and
not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part, and no other person
has a direct or indirect beneficial interest in any such Securities
acquired by it through the Arranging Agent;
(b) Each party understands that the offer and sale by the other party,
through the Arranging Agent, of such Securities are intended to be
exempt from registration under the 1933 Act, by virtue of Section
4(2) thereof. In furtherance thereof, each Party represents and
warrants that (i) it has the financial ability to bear the economic
risk of its investment and has adequate means of providing for its
current needs and other contingencies, (ii) it is experienced in
investing in forward purchase contracts and similar instruments and
has determined that such securities are a suitable investment for
it, and (iii) it is an institution that qualifies as an "accredited
investor" as that term is defined in Regulation D under the 1933
Act; and
(c) Each party has been given the opportunity to ask questions of, and
receive answers from, the other party through the Arranging Agent
concerning the terms and conditions of such Securities and
concerning the financial condition and business operations of the
other party and has been given the opportunity to obtain such
additional information necessary in order for each party to
evaluate the merits and risks of purchase of such Securities to the
extent the issuer of the Securities possesses such information or
can acquire it without unreasonable effort or expense.
(d) The Shares shall bear a legend substantially as set forth below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"ACT") OR ANY STATE SECURITIES LAWS ("BLUE SKY LAW") ANY MAY
NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF
WITHOUT REGISTRATION UNDER THE ACT AND UNDER APPLICABLE BLUE
SKY LAW OR UNLESS SUCH SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION IS EXEMPT FROM REGISTRATION THEREUNDER.
THE SALE, TRANSFER, PLEDGE OR OTHER DISPOSTION OF THIS
SECURITY IS SUBJECT TO THE AGREEMENT BETWEEN THE ISSUER,
CREDIT SUISSE FIRST BOSTON CORPORATION, AS ARRANGING AGENT,
AND CREDIT SUISSE FINANCIAL PRODUCTS DATED NOVEMBER 3, 1999
(THE "AGREEMENT").
Each party hereby acknowledges that it understands and agrees that
disposition of any such Securities is restricted in the manner set forth
under the Agreement, the 1933 Act and state securities laws. For
example, such Securities have not been registered under the 1933 Act or
under the securities laws of certain states and, therefore, cannot be
resold, pledged, assigned or otherwise disposed of unless they have been
registered under the 1933 Act and under the applicable laws of such
states or an exemption from such registration is available.
9. Matters relating to the Arranging Agent:
(a) As a broker-dealer registered with the SEC, Credit Suisse First
Boston Corporation in its capacity as Arranging Agent will be
responsible for (i) effecting this Transaction, (ii) issuing all
required confirmations and statements to Party A and Party B, (iii)
maintaining books and records relating to this Transaction as
required by Rules 17a-3 and 17a-4 under the Securities Exchange Act
of 1934 (the "1934 Act") and (iv) unless otherwise requested by
Party B, receiving, delivering, and safeguarding Party B's funds
and any securities in connection with this Transaction, in
compliance with Rule 15c3-3 under the Exchange Act.
(b) Credit Suisse First Boston Corporation is acting in connection with
this Transaction solely in its capacity as Arranging Agent for
Party A and Party B pursuant to instructions from Party A and Party
B. Credit Suisse First Boston Corporation shall have no
responsibility or personal liability to Party A or Party B arising
from any failure by Party A or Party B to pay or perform any
obligations hereunder, or to monitor or enforce compliance by Party
A or Party B with any obligation hereunder, including without
limitation, any obligations to maintain collateral. Each of Party
A and Party B agrees to proceed solely against the other to collect
or recover any securities or monies owing to it in connection with
or as a result of this Transaction. Credit Suisse First Boston
Corporation shall otherwise have no liability in respect of this
Transaction, except for its gross negligence or wilful misconduct
in performing its duties as Arranging Agent.
(c) Any and all notices, demands, or communications of any kind
relating to this Transaction, including without limitation, any
option exercise notice, between Party A and Party B shall be
transmitted exclusively through the Arranging Agent at the
following address:
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, NY 10010
Facsimile No.: (212) 325-8175
Telephone No.: (212) 325-8678
Attention: Ricardo Harewood
(d) The date and time of the Transaction evidenced hereby will be
furnished by the Arranging Agent to Party A and Party B upon
written request.
(e) The Arranging Agent will furnish to Party B upon written request a
statement as to the source and amount of any remuneration received
or to be received by the Arranging Agent in connection with the
Transaction evidenced hereby.
(f) Party A and Party B each represents and agrees (i) that this
Transaction is not unsuitable for it in the light of such party's
financial situation, investment objectives and needs and (ii) that
it is entering into this Transaction in reliance upon such tax,
accounting, regulatory, legal and financial advice as it deems
necessary and not upon any view expressed by the other or the
Arranging Agent.
(g) Party A and Party B each is aware of and agrees to be bound by the
rules of the National Association of Securities Dealers, Inc.
("NASD") applicable to the Transaction and is aware of and agrees
not to violate, either alone or in concert with others, any
applicable position or exercise limits established by the NASD.
Credit Suisse Financial Products is regulated by The Securities and Futures
Authority and has entered into this transaction as principal.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours sincerely,
CREDIT SUISSE FIRST BOSTON CORPORATION, solely
in its capacities as Arranging Agent and
Selling Agent
By:
Name:
Title:
CREDIT SUISSE FINANCIAL PRODUCTS
By:
Name:
Title:
Confirmed as of the date first written above:
NORTHEAST UTILITIES
By:
Name:
Title:
APPENDIX A
TO
CONFIRMATION OF TRANSACTION
BETWEEN
CREDIT SUISSE FINANCIAL PRODUCTS
AND
NORTHEAST UTILITIES
CSFP REFERENCE TRN [.]
Unless otherwise agreed in writing by Party A and Party B with respect to
specific sales of Shares by the Selling Agent or specific Shares to be
delivered to the Selling Agent by Party B, the provisions of this Appendix A
shall apply to all Shares in satisfaction of a Party B Net Cash Settlement or
Net Share Settlement Delivery including the resale of the Number of Shares
which were acquired in a transaction not involving any public offering and,
in the case of Net Share Settlement, any additional Shares (collectively, the
"Shares").
(a) Party B shall have reserved and have available, out of its authorized
but unissued capital stock, for the purpose of effecting the payment of any
Party B Net Cash or Net Share Settlement Delivery in Shares as provided in
the Confirmation, the full number of shares of capital stock that would then
be issuable with respect to such payment.
(b) Party B shall have filed with the SEC a registration statement on Form
S-3 or such other form as is acceptable to Party A; such registration
statement shall have been declared effective with respect to such Shares (the
"Registration Statement") and no stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission. Party B, at
the request of Party A, shall deliver an underwriting agreement naming Party
A, or its designee, as underwriter, together with such other agreements,
certificates and instruments as Party A may reasonably require either
pursuant to such underwriting agreement or as are customarily provided
together with such underwriting agreement.
(c) Party B shall have registered or qualified such Shares under such
securities or "blue sky" laws of such States and other jurisdictions in the
United States and Puerto Rico as Party A or any underwriter shall have
reasonably requested, and shall have done any and all other acts and things
as may be reasonably necessary to be done by Party B to enable Party A or any
underwriter to consummate the disposition in such jurisdictions of the Shares
covered by the Registration Statement; provided that Party B shall not be
required to make any filing or take any action as a result of this paragraph
(c) that would required it to qualify as a foreign corporation or file a
general consent to service of process in any jurisdiction.
(d) Party B shall have caused such Shares and the issuance thereof to be
registered with or approved by such other governmental agencies or
authorities in the United States as may be reasonably necessary to be done by
Party B to enable Party A or any underwriter to consummate the disposition of
such Shares.
(e) Party B shall have (i) given Party A and its underwriter(s), if any, and
their respective counsel and accountants, the opportunity to participate in
the preparation of all materials filed with the SEC or any other governmental
agency (the "Filed Materials") prior to the first day of such Final Reference
Share Price Pricing Period, (ii) furnished to each of them copies of all such
Filed Materials (and all documents incorporated therein by reference)
sufficiently in advance of filing to provide them with a reasonable
opportunity to review such documents and comment thereon, (iii) given each of
them such opportunities to discuss the business of Party B with its officers
and the independent public accountants who have issued a report on its
financial statement as shall be reasonably necessary, in the opinion of Party
A and such underwriter(s) or their respective counsel, to conduct a
reasonable investigation (within the meaning of the 1933 Act, as amended)
with respect to such Filed Materials, (iv) delivered to Party A and its
underwriter(s), if any, the financial statements of Party B filed with the
SEC, (v) included in such Filed Materials material, furnished to Party B in
writing, which in the reasonable judgment of Party A or its underwriter(s),
if any, subject to the consent of Party B (which shall not be unreasonably
withheld), should be included with respect to Party A, Party A's
underwriter(s) and the "Plan of Distribution", including, without limitation,
language to the effect that the holding by Party A of the Shares is not to be
construed as a recommendation by Party A of the investment quality thereof
and (vi) if requested by Party A, deleted from such Filed Materials any
reference to Party A if in the written opinion of counsel to Party A, in form
and substance to Party B, such reference to Party A by name or otherwise is
not required by the 1933 Act or any similar Federal statute then in force.
(f) Party B shall have furnished to Party A and any underwriter, addressed
to Party A and any such underwriter and dated the first day of the Final
Reference Share Price Pricing Period, (i) an opinion of counsel for Party B
(which opinion may be from internal counsel for Party B) and (ii) a "cold
comfort" letter signed by the independent public accountants who have issued
a report on Party B's financial statements included in such Registration
Statement, covering substantially the same matters with respect to such
Shares and the offering, sale and issuance thereof as are customarily covered
in opinions of issuer's counsel and in accountants' letters delivered to
underwriter(s) in underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial matters as Party A may
have reasonably requested.
(g) Party B shall have complied with all applicable provisions of the 1933
Act and the 1934 Act and the Public Utility Holding Company Act of 1935, all
applicable rules of the SEC and all other applicable laws, rules and
regulations of any governmental or regulatory authority with respect to such
Filing Materials and such Shares and the offering, sale and issuance thereof.
(h) Party B shall have caused all such Shares to be listed on the Exchange
and on each securities exchange on which Party B has caused similar
securities issued by Party B to be listed.
(i) Party B shall have provided a transfer agent and registrar for such
Shares.
(j) Party B shall have taken such other actions as Party A or any
underwriter of such Shares shall have reasonably requested in order to
expedite or facilitate the disposition of such Shares.
(k) Party B shall provide Party A and its underwriter(s), if any, with
indemnity and contribution in form and substance acceptable to Party A
covering such matters relating to the Shares, the Filed Materials, and such
other matters as Party A shall reasonably request.
(l) Party B shall have paid all customary costs and expenses reasonably
incurred in connection with the foregoing, provided, that unless otherwise
agreed, Party A and its underwriter(s) shall be responsible for the fees and
expenses of their respective counsel.
(m) Party B shall deliver all such registered Shares through the Clearance
System.