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EXHIBIT 4.2
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"Agreement") is entered into as of April 26, 2000 by and among Orion Power
Holdings, Inc. (the "Company"), GS Capital Partners II, L.P. ("GSCP II," and
together with any Affiliate (as defined below) (including without limitation,
the Other GSCP Entities, as defined below) to which it assigns any rights and
obligations under the Agreement, "GSCP"), GS Capital Partners III, L.P. ("GSCP
III"), GS Capital Partners II Offshore, L.P. ("GSCP Offshore"), GS Capital
Partners III Offshore, L.P. ("GSCP III Offshore"), Goldman, Sachs & Co.
Verwaltungs GmbH, as nominee for GS Capital Partners II Germany C.L.P. ("GS
Germany") and as nominee for GS Capital Partners III Germany C.L.P. ("GS III
Germany"), Stone Street Fund 1998, L.P. ("Stone") Bridge Street Fund 1998, L.P.
("Bridge"), Stone Street Fund 2000, L.P. ("Stone 2000") and Bridge Street Fund
2000, L.P. ("Bridge 2000," and collectively with GSCP III, GSCP Offshore, GSCP
III Offshore, GS Germany, GS III Germany, Stone, Bridge and Stone 2000, the
"Other GS Entities"), Constellation Enterprises, Inc. ("Constellation"),
Constellation Operating Services, Inc. ("COSI"), Diamond Generating Corporation
("DGC"), Diamond Cayman, Inc. ("DCI"), Mitsubishi International Corporation
("MIC," and collectively with DGC and DCI, "Mitsubishi") and Tokyo Electric
Power Company International B.V. ("TEPCO International"). Each of GSCP,
Constellation, Mitsubishi, TEPCO International and COSI is referred to herein as
a "Holder," and GSCP, Constellation, Mitsubishi, TEPCO International and COSI
are referred to collectively herein as "Holders."
R E C I T A L S:
WHEREAS, pursuant to the terms of that certain Subscription Agreement,
dated as of September 29, 1999, by and between the Company and Mitsubishi and
that certain Subscription Agreement, dated as of October 4, 1999, by and between
the Company and TEPCO International, the Company, GSCP, Constellation,
Mitsubishi Corporation and TEPCO International entered into a registration
rights agreement (the "Original Registration Rights Agreement"), dated as of
November 5, 1999.
WHEREAS, pursuant to the terms of that certain Stock Purchase Agreement
(the "COSI Purchase Agreement"), dated as of April 26, 2000, by and between the
Company and COSI, the execution and delivery of this Agreement by the parties
hereto is a condition to the purchase by the Company of various assets from
COSI.
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A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Affiliate" shall mean, with respect to any person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person; provided, however, that, for
purposes hereof, neither the Company nor any person controlled by the Company
shall be deemed to be an Affiliate of any Stockholder.
"Approved Underwriter" shall have the meaning set forth in
Section 2.
"Business Day" shall mean any day excluding Saturday, Sunday and
any day on which banks in the State of New York are authorized or required by
law or other governmental action to close.
"COSI Shares" shall mean the 12,193.548 Shares acquired by COSI
pursuant to the COSI Purchase Agreement, including any Shares acquired upon any
stock split, stock dividend or recapitalization with respect to such Shares.
"Damages" shall have the meaning set forth in Section 8.
"Demanding Holder" shall have the meaning set forth in Section
2.
"Demand Registration" shall have the meaning set forth in
Section 2.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations promulgated
thereunder.
"Incidental Registration" shall have the meaning set forth in
Section 3.
"Initial Public Offering" means an underwritten offering or
series of underwritten offerings pursuant to which the Shares becomes registered
under Section 12 of the Exchange Act (a) in which either (i) the Shares issued
constitute at least 20% of the Shares or (ii) the gross proceeds to the Company
and any selling stockholders, in the aggregate, is at least $75 million before
deducting underwriting discounts, commissions and offering expenses and (b)
which results in the Common Stock being held by at least 500 holders of record
within the meaning of Rule 12g5-1 under the Exchange Act.
"Litigation" shall have the meaning set forth in Section 21.
"Participating Holder" shall have the meaning set forth in
Section 3.
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"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
"Register," "registered" and "registration" shall mean and refer
to a registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such Registration
Statement by the SEC.
"Registration Expenses" shall have the meaning set forth in
Section 7.
"Registrable Securities" shall mean all Shares held by the
Holders as of the date hereof or acquired after the date hereof (including,
without limitation, Shares acquired pursuant to preemptive rights and Shares
subsequently transferred to a permitted transferee under Section 12 hereof),
provided that such term shall not include any such Shares sold to the public by
the Holders pursuant to a Registration Statement under the Securities Act or
sold by the Holders in a private transaction in which the selling Holder's
rights hereunder were not assigned to the purchasers thereof or Shares which may
be sold without restriction under Rule 144(k) of the Securities Act or any
successor rule thereto.
"Registration Statement" shall mean any registration statement
of the Company in compliance with Section 5 of the Securities Act and the rules
and regulations thereunder that covers Registrable Securities pursuant to the
provisions of this Agreement, including, without limitation, the Prospectus, all
amendments and supplements to such Registration Statement, including all
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement.
"Rights Holder" shall have the meaning set forth in Section 6.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, and the rules and regulations promulgated thereunder.
"Shares" shall mean the outstanding common stock of the Company,
par value $.01 per Share.
"Underwritten registration" or "underwritten offering" shall
mean a registration in which common equity securities of the Company are sold to
an underwriter or through an underwriter as agent for reoffering to the public.
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2. Demand Registration.
(a) Request for Demand Registration. At any time after the
Company's Initial Public Offering, each of the Holders shall be entitled to
request in writing that the Company effect the registration under the Securities
Act of Registrable Securities in accordance with this Section 2 (each, a "Demand
Registration"). Any such request for a Demand Registration by a Holder (the
"Demanding Holder") shall specify the amount of Registrable Securities proposed
to be sold and the intended method of disposition thereof. Upon receiving a
request for a Demand Registration, the Company will, as provided in this Section
2, use its reasonable best efforts to effect the registration under the
Securities Act of the Registrable Securities which the Company has been so
requested by the Demanding Holder to register. Notwithstanding anything in the
Section 2 to the contrary, the Company shall not be obligated to effect a
registration unless the anticipated aggregate gross offering price with respect
thereto would equal or exceed $35 million ($35,000,0000) (including the offering
price of Registrable Securities as to which other holders of Registrable
Securities are also seeking registration pursuant to such request). Any such
request for a Demand Registration may be a request for a shelf registration, if
the Company is eligible to use a shelf registration at the time of such request.
(b) Limitation on Demand Registrations. Notwithstanding
anything to the contrary set forth in Section 2(a) but subject to Sections 7 and
11, the Company shall not be obligated to file a Registration Statement with
respect to a Demand Registration upon a request by a Demanding Holder under
Section 2(a), (i) if two Demand Registrations initiated by the Demanding Holder
have become effective as specified in paragraph (c) below or (ii) if the Holder
requests a Demand Registration prior to six months following the date on which
any of the Company's common equity securities were first sold pursuant to any
Registration Statement declared effective by the SEC (or in the case of a shelf
registration, prior to six months following the date on which any Registration
Statement with respect to the Company's common equity securities is declared
effective).
(c) Effective Demand Registration. A registration shall not
constitute a Demand Registration until the Registration Statement has become
effective and remains continuously effective for the lesser of (i) the period
during which all Registrable Securities of the Demanding Holder registered in
the Demand Registration are sold and (ii) 90 days; provided, however, that a
registration shall not constitute a Demand Registration if (x) after such Demand
Registration has become effective, such registration or the related offer, sale
or distribution of Registrable Securities thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not attributable to the Demanding
Holder and such interference is not thereafter eliminated or (y) the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such Demand Registration are not satisfied or waived, other than
by reason of a failure by the Demanding Holder.
(d) Underwriting Procedures. If the Demanding Holder so
elects, the offering of Registrable Securities pursuant to a Demand Registration
shall be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter (as hereinafter defined) selected
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in accordance with Section 2(e). With respect to any firm commitment
underwritten offering, the Company shall enter into a reasonable and customary
underwriting agreement with the Approved Underwriter. If the Approved
Underwriter advises the Company in writing that in its opinion the aggregate
amount of Shares requested to be included in such offering is sufficiently large
to have a material adverse effect on the success of such offering, then the
Company shall include in such registration only the aggregate amount of Shares
that in the opinion of the Approved Underwriter may be sold without any such
material adverse effect and shall allocate the amount of the Shares to be
included in such registration as follows: the Company, the Demanding Holder, the
Participating Holders (as defined herein) and any other stockholder exercising
piggyback registration rights shall be allowed to include such amount of
Registrable Securities in the aggregate as the managing underwriter(s) deems
appropriate prior to any Shares being included on behalf of any other person;
provided, however, that (i) if the request for a Demand Registration occurs on
or prior to the date which is the one year anniversary of the Company's Initial
Public Offering, prior to any reduction of the amount of Shares intended to be
included in the offering by the Company pursuant to the exercise of its rights
under Section 2(f) herein, the aggregate amount of Shares intended to be
included in the offering by the former Demanding Holder, the Participating
Holders and any other stockholder exercising piggyback registration rights shall
be reduced in its entirety (which Shares shall be cut back on a pro rata basis
in accordance with the number of Shares proposed to be registered by the
Demanding Holder, the Participating Holders and any other stockholder exercising
piggyback registration rights) and (ii) if the request for a Demand Registration
occurs after the one year anniversary of the Company's Initial Public Offering,
the amount of Shares intended to be included in the offering by the Company
shall be reduced in its entirety prior to any reduction of the aggregate amount
of Shares intended to be included in the offering by the Demanding Holder, the
Participating Holders and any other stockholder exercising piggyback
registration rights intended to be included in such offering (which Shares,
after the elimination of Company Shares, shall be cut back on a pro rata basis
in accordance with the number of Shares proposed to be registered by the
Demanding Holder, the Participating Holders and any other stockholder exercising
piggyback registration rights).
(e) Selection of Underwriters. If any Demand Registration is
in the form of an underwritten offering, the Demanding Holder shall select and
obtain one or more investment banking firms of national reputation to act as the
managing underwriters of the offering (collectively, the "Approved
Underwriter"); provided, however, that the Approved Underwriter shall, in any
case, be acceptable to the Company in its reasonable judgment.
(f) Company Participation. If, in the case of a Demand
Registration requested on or prior to the date which is the one year anniversary
of the Company's Initial Public Offering, the Company gives notice to the
Demanding Holder and the managing underwriter, if any, within 20 Business Days
of the Company's receipt of the request for a Demand Registration, that the
Company wishes to include shares in such registration, such registration shall
not be deemed a Demand Registration and the Demanding Holder shall be deemed a
Participating Holder.
(g) Demanding Holder Cutback. If, in the case of any Demand
Registration, the shares to be included by the Demanding Holder in such
registration are reduced by the Approved Underwriter by one-third (1/3) or more
of the amount of shares the
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Demanding Holder requested to include in such registration, such registration
shall not be deemed a Demand Registration.
3. Incidental Registration. At any time after the Company's Initial
Public Offering, if the Company shall determine to register any Shares, or any
securities convertible into or exchangeable or exercisable for Shares, for its
own account or for the account of any stockholder (other than a registration on
Forms S-4 or S-8 or any replacement or successor form thereof), the Holders
shall be entitled to include Registrable Securities in such registration (and
related underwritten offering, if any) (each, an "Incidental Registration") on
the terms and conditions set forth in this Section 3.
(a) The Company shall promptly give written notice of such
determination to the Holders, and each Holder shall have the right to request,
by written notice given to the Company within twelve (12) Business Days of the
receipt by such Holder of such notice of determination, that a specific number
of Registrable Securities held by such Holder be included in such Registration
Statement (such participating Holders are referred to herein as "Participating
Holders");
(b) If the proposed registration relates to an underwritten
offering, the notice called for by Section 3(a) shall specify the name of the
managing underwriter for such offering;
(c) If the proposed registration relates to an underwritten
offering, each Participating Holder must (i) sell all or a portion of its
Registrable Securities on the same basis provided in the underwriting
arrangements approved by the Company and (ii) complete and execute all
questionnaires, powers of attorney, underwriting agreements and other documents
on the same basis as other similarly situated selling stockholders (or, if there
are no other selling stockholders, as would be customary in a transaction of
this type) reasonably required under the terms of such underwriting arrangements
or by the SEC;
(d) If the managing underwriter for the underwritten
offering under the proposed registration to be made by the Company determines
that inclusion of all or any portion of the Registrable Securities in such
offering would adversely affect the ability of the underwriter for such offering
to sell all of the securities requested to be included for sale or the price per
share in such offering, the number of shares that may be included in such
registration in such offering shall be allocated as follows:
(i) if the Company initiated the registration, the
Company, all Participating Holders and any other stockholder
exercising piggyback registration rights shall be allowed to
include such amount of Registrable Securities as the managing
underwriter(s) deems appropriate prior to any Shares being
included on behalf of any other person; provided, however, that,
prior to any reduction of the amount of Shares intended to be
registered by the Company, the aggregate amount of Shares
intended to be included in the offering by all Participating
Holders and any other stockholder exercising piggyback
registration rights shall be reduced in its entirety (which
Shares shall be cut back on a pro rata basis in accordance with
the number of Shares
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proposed to be registered by the Participating Holders and any
other stockholder exercising piggyback registration rights);
(ii) if, on or prior to the date which is the one
year anniversary of the Company's Initial Public Offering, a
Demanding Holder requests a Demand Registration, the Demanding
Holder, the Company, all Participating Holders and any other
stockholder exercising piggyback registration rights shall be
allowed to include such amount of Registrable Securities as the
managing underwriter(s) deems appropriate prior to any Shares
being included on behalf of any other person; provided, however,
that, prior to any reduction of the amount of Shares intended to
be registered by the Company pursuant to exercise of its rights
under Section 3(e) herein, the aggregate amount of Shares
intended to be included in such offering by the former Demanding
Holder, all Participating Holders and any other stockholder
exercising piggyback registration rights shall be reduced in its
entirety (which Shares shall be cut back on a pro rata basis in
accordance with the number of Shares proposed to be registered
by the Demanding Holder, the Participating Holders and any other
stockholder exercising piggyback registration rights);
(iii) if, after the date which is the one year
anniversary of the Company's Initial Public Offering, a
Demanding Holder requests a Demand Registration, the Demanding
Holder, the Company, all Participating Holders and any other
stockholder exercising piggyback registration rights shall be
allowed to include such amount of Registrable Securities as the
managing underwriter(s) deems appropriate prior to any Shares
being included on behalf of any other person; provided, however,
that the amount of Shares intended to be registered by the
Company shall be reduced in its entirety prior to any reduction
of the aggregate amount of Shares intended to be included in
such offering by the Demanding Holder, all Participating Holders
and any other stockholder exercising piggyback registration
rights (which Shares, after the elimination of Company Shares,
shall be cut back on a pro rata basis in accordance with the
number of Shares proposed to be registered by the Demanding
Holder, the Participating Holders and any other stockholder
exercising piggyback registration rights);
(e) If, in the case of a Demand Registration requested on or
prior to the date which is the one year anniversary of the Company's Initial
Public Offering, the Company gives notice to the Demanding Holder and the
managing underwriter, if any, within 20 Business Days of the Company's receipt
of the request for a Demand Registration, that the Company wishes to include
shares in such registration, such registration shall not be deemed a Demand
Registration and the Demanding Holder shall be deemed a Participating Holder;
(f) Each Participating Holder shall have the right to
withdraw its Registrable Securities from the Registration Statement at any time
prior to the effective date thereof, but if the same relates to an underwritten
offering and the initial filing thereof has been made, it may only withdraw its
Registrable Securities during the time period and on terms deemed appropriate by
the underwriters for such underwritten offering; and
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(g) The Company or any other stockholder exercising Demand
Registration rights shall have the right to terminate or withdraw any
registration statement filing under this Section 3 prior to the effective date
of such registration for any reason without liability to any Participating
Holder as a result thereof, whether or not such Participating Holder has elected
to include such securities in such registration. In such event, the Company or a
Participating Holder, as applicable, may elect to continue the registration;
provided, however, that, except as provided in Sections 2(f), 2(g) and 3(e)
hereof, if a Participating Holder makes such election, the election shall be
deemed a request for a Demand Registration and shall be subject to the limits on
Demand Registration requests set forth in this Agreement.
3A. Initial Public Offering Registration. At the Company's Initial
Public Offering, COSI shall be entitled to include the COSI shares in such
registration on the terms and conditions set forth in this Section 3A (the
"Special COSI Rights").
(a) The Company shall promptly give written notice of its
determination to effect an Initial Public Offering to COSI, and COSI shall have
the right to request, by written notice given to the Company within twelve (12)
Business Days of the receipt by such Holder of such notice of determination,
that a specific number of COSI Shares held by COSI, be included in such
Registration Statement ;
(b) The notice called for by Section 3A(a) shall specify the
name of the managing underwriter for the Initial Public Offering;
(c) COSI must (i) sell all or a portion of its COSI Shares
on the same basis provided in the underwriting arrangements approved by the
Company and (ii) complete and execute all questionnaires, powers of attorney,
underwriting agreements and other documents on the same basis as other similarly
situated selling stockholders (or, if there are no other selling stockholders,
as would be customary in a transaction of this type) reasonably required under
the terms of such underwriting arrangements or by the SEC;
(d) If the managing underwriter for the Initial Public
Offering determines that inclusion of all or any portion of the COSI Shares in
such offering would adversely affect the ability of the underwriter for such
offering to sell all of the securities requested to be included for sale or the
price per share in such offering, the number of shares that may be included in
such registration in such offering shall be allocated so that the Company and
COSI shall be allowed to include such amount of COSI Shares and Registrable
Securities as the managing underwriter(s) deems appropriate prior to any Shares
being included on behalf of any other person; provided, however, that, prior to
any reduction of the amount of Shares intended to be registered by the Company,
the aggregate amount of Shares intended to be included in the offering by COSI
shall be reduced in its entirety;
(e) COSI shall have the right to withdraw COSI Shares from
the Registration Statement at any time prior to the effective date thereof, but
if the initial filing of the Initial Public Offering has been made, COSI may
only withdraw the COSI Shares during the time period and on terms deemed
appropriate by the underwriters.
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4. Blockage Periods. Prior to and for the one hundred eighty (180)
day period following the date of the Company's Initial Public Offering, the
Company shall not be obligated to file any Registration Statement under Section
2. Notwithstanding any other provision of this Agreement, the Company shall not
be obligated to file any Registration Statement under Section 2 at any time that
(after having had discussions with the Demanding Holder) the Company's Board of
Directors determines in good faith, as certified to the Demanding Holder in
writing by the Company's President, Chief Executive Officer, Chief Financial
Officer, Chief Legal Officer or Chief Operating Officer that the filing of such
a Registration Statement would be seriously detrimental (including, without
limitation, if the filing of a Registration Statement would require disclosure
of a pending material transaction where such disclosure could impair the
Company's ability to complete such transaction) to the business of the Company.
The Company may decline to file any Registration Statement for this reason only
twice in any 12-month period and only for a maximum period of 90 days at any one
time. If the Company declines to file any Registration Statement pursuant to
this Section 4, it shall not file any Registration Statement (other than a Form
S-4 or Form S-8) without the prior written approval of the Demanding Holder,
which approval may be withheld at the Demanding Holder's sole discretion, unless
and until it files a Registration Statement including Registrable Securities
under Section 2 hereof.
5. Restrictions on Public Sale by Holders of Registrable
Securities. If Registrable Securities are included (in whole or in part) in a
Registration Statement filed by the Company under Section 2 for sale in an
underwritten offering, each Holder of Registrable Securities agrees, if
requested by the managing underwriter(s) of such offering, not to sell, make any
short sale of, loan, grant any option for the purchase of, dispose of or effect
any public sale or distribution of common equity securities of the same series
and class as (or securities exchangeable or exercisable for or convertible into
common equity securities of the same series and class as) its Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten registration), during the five (5) day
period prior to, and during the one hundred eighty (180) day period in the case
of an Initial Public Offering for all Holders of Registrable Securities or,
solely with respect to Demanding Holders and Participating Holders, during the
ninety (90) day period in the case of all other registrations (or, in either
case, during the shorter period requested or consented by the managing
underwriter(s) with respect to the Company or any other holder of common stock
of the Company) beginning on the closing date of such underwritten offering, to
the extent timely notified in writing by the Company or the managing
underwriter(s).
6. Registration Procedures. In connection with the Company's
registration obligations pursuant to Sections 2, 3 and 3A hereof, the Company
will use its reasonable best efforts to effect such registration to permit the
sale of the Registrable Securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company will as expeditiously as possible:
(a) with respect to registrations made pursuant to Section 2
only, prepare and file with the SEC a Registration Statement with respect to
such Registrable Securities and use its reasonable best efforts to cause such
Registration Statement to become effective as soon as practicable, and, upon the
request of any Holder of Registrable Securities to be sold under such
Registration Statement (a "Rights Holder"), keep such Registration Statement
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effective for up to ninety (90) days, provided that, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company will furnish to the Rights Holders and their counsel, copies of all
such documents proposed to be filed at least three (3) days prior thereto,
provided, further, that the Company will not name or otherwise provide any
information with respect to any Rights Holder in any Registration Statement or
Prospectus without the express written consent of such Rights Holder, which
consent shall not be unreasonably withheld, unless required to do so by the
Securities Act and the rules and regulations thereunder;
(b) prepare and file with the SEC such amendments,
post-effective amendments and supplements to the Registration Statement and the
Prospectus as may be necessary to comply with the provisions of the Securities
Act and the rules and regulations thereunder with respect to the disposition of
all securities covered by such Registration Statement;
(c) promptly notify the Rights Holders (i) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (v) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference so that such documents will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(d) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at the
earliest possible time;
(e) if requested by the Approved Underwriter or Rights
Holder, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the Approved Underwriter and such Rights Holder
agree should be included therein as required by applicable law and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
promptly after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or such post-effective amendment;
provided, however, that the Company shall not be required to take any of the
actions of this Section 6(e) which it determines are not, on the advice of
counsel for the Company, required under applicable law;
(f) furnish to each Rights Holder, without charge, at least
one copy of the Registration Statement and any post-effective amendment thereto,
including financial
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statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(g) deliver to the Rights Holders, without charge, such
reasonable number of conformed copies of the Registration Statement (and any
post-effective amendment thereto) and such number of copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
(and any documents incorporated by reference therein) as the Rights Holders may
reasonably request, all in full conformity with the Securities Act; the Company
consents to the use of the Prospectus or any amendment or supplement thereto by
the Rights Holders in connection with the offer and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any offering of Registrable Securities covered
by a Registration Statement, register or qualify or cooperate with the Rights
Holders in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any Rights Holder reasonably requests, and use its reasonable
best efforts to keep each such registration or qualification effective,
including through new filings, or amendments or renewals, during the period such
Registration Statement is required to be kept effective pursuant to the terms of
this Agreement; and do any and all other acts or things necessary or advisable
to enable the disposition in all such jurisdictions reasonably requested by such
Rights Holder, provided that under no circumstances shall the Company be
required in connection therewith or as a condition thereof to qualify to do
business, to become subject to taxation or to file a general consent to service
of process in any such states or jurisdictions;
(i) cooperate with the Rights Holders and the managing
underwriter or underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, free of any and all
restrictive legends, such certificates to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any, or
the Rights Holders may request;
(j) upon the occurrence of any event contemplated by Section
6(c)(v) above, prepare a supplement or post-effective amendment to the
Registration Statement or the Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(k) make generally available to the holders of the Company's
outstanding securities earnings statements satisfying the provisions of Section
11(a) of the Securities Act, no later than forty-five (45) days after the end of
any twelve (12) month period (or ninety (90) days, if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm or best efforts underwritten
offering, or, if not sold to underwriters in such an offering, (ii) beginning
with the first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement, which statements shall cover said
twelve (12) month period;
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12
(l) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration Statement
from and after a date not later than the effective date of such Registration
Statement;
(m) use its reasonable best efforts to cause all Registrable
Securities covered by each Registration Statement to be listed, subject to
notice of issuance, prior to the date of the first sale of such Registrable
Securities pursuant to such Registration Statement, on each securities exchange
on which the Shares issued by the Company are then listed, and admitted to
trading on the Nasdaq Stock Market or other national exchange, if the Shares are
then admitted to trading on the Nasdaq Stock Market or such national exchange;
(n) enter into such agreements (including underwriting
agreements in customary form containing, among other things, reasonable and
customary indemnities) and take such other actions as the Rights Holders shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities; and
(o) furnish, at the request of the Rights Holders, on the
date that Registrable Securities are delivered to an underwriter for sale in
connection with an underwritten registration, or, in connection with any other
registration, on the date that the Registration Statement with respect to such
registration becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purpose of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Rights Holders, (ii)
a letter dated such date, from the independent certified public accountants of
the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Rights Holders, subject to
such Rights Holders' provision of information reasonably requested by such
independent certified public accountants to comply with the rules governing
delivery of such letters, and (iii) cause the underwriting agreement to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 8 hereof (or such other provisions and procedures acceptable to the
Rights Holders) with respect to all parties to be indemnified pursuant to such
Section.
Each Rights Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
6(c)(v) hereof, such Rights Holder will forthwith discontinue disposition of
Registrable Securities under the Prospectus related to the applicable
Registration Statement until such Rights Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(j) hereof, or until
it is advised in writing by the Company that the use of the Prospectus may be
resumed. It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section 6 with respect to the Registrable
Securities of a Rights Holder that such Rights Holder shall furnish to the
Company such information regarding itself and the Registrable Securities held by
it as shall be required by the Securities Act to effect the registration of the
Rights Holder's Registrable Securities and as typically provided by similarly
situated selling stockholders.
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13
7. Registration Expenses. All expenses incident to any registration
to be effected hereunder (whether or not the Registration Statement is filed or
declared effective) and incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, National Association of Securities
Dealers, Inc., stock exchange and qualification fees, fees and disbursements of
the Company's counsel and of independent certified public accountants of the
Company (including the expenses of any special audit required by or incident to
such performance), the fees of one counsel reasonably acceptable to the Company
representing the Rights Holders in such offering, expenses of the underwriters
that are customarily requested in similar circumstances by such underwriters
(excluding discounts, commissions or fees of underwriters, qualified independent
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Registrable Securities), all
such expenses being herein called "Registration Expenses," will be borne by the
Company. The Company will also pay its internal expenses, the expense of any
annual audit and the fees and expenses of any person retained by the Company.
Notwithstanding the foregoing, the Company will not be obligated to pay
Registration Expenses for more than two Demand Registrations by the same
Demanding Holder effected pursuant to Section 2 of this Agreement. Registration
Expenses incurred in connection with Registration Statements requested under
Section 2 that are not filed or declared effective by the SEC will be paid by
the Company and will not count against such limit; provided, however, if such
Registration Statement not being filed or declared effective is the result of
the actions of the Demanding Holder, then the Demanding Holder will bear the
Registration Expenses of such Demand Registration in which case such
registration shall not be counted as a Demand Registration under Section 2.
8. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Rights Holder, its officers, directors,
partners, employees and agents and each person who controls such Rights Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, partners, employees and agents of any
such controlling person from and against any and all losses, claims, damages and
liabilities (including any investigation, legal or other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) (collectively, "Damages") to which
such Rights Holder may become subject under the Securities Act, the Exchange Act
or other federal or state securities law or regulation, at common law or
otherwise, insofar as such Damages arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or any amendment or
supplement thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or any state securities or blue sky laws in
connection with the Registration Statement, Prospectus or preliminary prospectus
or any amendment or supplement thereto, provided that the Company will not be
liable to such Rights Holder to the extent that such Damages arise from or are
based upon any untrue statement or omission (x) based upon written information
furnished to
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the Company by the Rights Holder expressly for the inclusion in such
Registration Statement, (y) made in any preliminary prospectus if the Rights
Holder failed to deliver a copy of the Prospectus with or prior to the delivery
of written confirmation of the sale by the Rights Holder to the party asserting
the claim underlying such Damages and such Prospectus would have corrected such
untrue statement or omission and (z) made in any Prospectus if such untrue
statement or omission was corrected in an amendment or supplement to such
Prospectus delivered to the Rights Holder prior to the sale of Registrable
Securities and the Rights Holder failed to deliver such amendment or supplement
prior to or concurrently with the sale of Registrable Securities to the party
asserting the claim underlying such Damages. The Company shall also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution customarily indemnified by
issuers in underwritten public offerings, their officers, directors, agents and
employees and each Person who controls such Persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Rights
Holders.
(b) Indemnification by Rights Holder. If Registrable
Securities are sold under a Prospectus which is a part of a Registration
Statement, each Demanding Holder and Participating Holder agrees to indemnify
and hold harmless the Company, its directors and each officer who signed such
Registration Statement and each person who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, partners, employees and agents of any such
controlling person under the same circumstances as the foregoing indemnity from
the Company to such Demanding Holder or Participating Holder, as applicable, to
the extent that such losses, claims, damages, liabilities or actions arise out
of or are based upon any untrue statement of a material fact or omission of a
material fact that was made in the Prospectus, the Registration Statement, or
any amendment or supplement thereto, in reliance upon and in conformity with
information relating to the Demanding Holder or Participating Holder, as
applicable, furnished in writing to the Company by the Demanding Holder or
Participating Holder, as applicable, expressly for use therein, provided that in
no event shall the aggregate liability of the Demanding Holder or Participating
Holder, as applicable exceed the amount of the net proceeds received by such
Demanding Holder or Participating Holder, as applicable upon the sale of the
Registrable Securities giving rise to such indemnification obligation. Each
Demanding Holder and Participating Holder shall indemnify the underwriters under
terms customary to such underwritten offerings as reasonably requested by such
underwriters. The Company and Rights Holder shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as customarily furnished by such persons in similar circumstances.
(c) Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder will (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party, provided, however,
that any person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such person and not
of the
-14-
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indemnifying party unless (A) the indemnifying party has agreed to pay such fees
or expenses, (B) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such person or (C)
in the reasonable judgment of such person and the indemnifying party, based upon
advice of their respective counsel, a conflict of interest may exist between
such person and the indemnifying party with respect to such claims (in which
case, if the person notifies the indemnifying party in writing that such person
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such person). No settlement in respect of any third party claim may
be effected by the indemnifying party without the indemnified party's prior
written consent (which consent shall not be unreasonably withheld) unless the
settlement involves only the payment of money by the indemnifying party,
provides for a full and unconditional release of the indemnified party and does
not include a statement as to, or any admission of, fault, culpability or a
failure to act by, or on behalf of, the indemnified party. Any indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim.
As used in this Section 8(c), the terms "indemnifying party," "indemnified
party" and other terms of similar import are intended to include only the
Company (and its officers, directors and control persons and the officers,
directors, partners, employees and agents of such control persons as set forth
above) on the one hand, and the Rights Holder (and its officers, directors,
partners, employees, agents and control persons and the officers, directors,
partners, employees and agents of such control persons as set forth above) on
the other hand, as applicable.
-15-
16
(d) Contribution. If for any reason the foregoing indemnity
is unavailable, then the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or indemnifying parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions which resulted in such losses, claims, demands, liabilities or
expenses as well as any other relevant equitable considerations. With respect to
contribution required pursuant to this Section 8(d), 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 indemnifying party or
indemnifying parties on the one hand or the indemnified party on the other, and
the parties' relative, intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. Notwithstanding the
provisions of this Section 8(d), an indemnified holder of Registrable Securities
shall not be required to contribute any amount in excess of the amount by which
the net proceeds to such holder of Registrable Securities from the sale thereof
exceed the amount of damages which such indemnified holder has otherwise been
required to pay pursuant to Section 8(b) by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Timing of Payments. An indemnifying party shall make
payments of all amounts required to be made pursuant to the foregoing provisions
of this Section 8 to or for the account of the indemnified party from time to
time promptly upon receipt of bills or invoices relating thereto or when
otherwise due or payable.
(f) Survival. The indemnity and contribution agreements
contained in this Section 8 shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of the Holders, their respective
officers, directors, partners, attorneys, agents or any person, if any, who
controls any Holder as aforesaid, and shall survive the transfer of such
Registrable Securities by any Holder.
9. Preparation; Reasonable Investigation. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of this
Agreement:
(a) the Company shall, with respect to a Registration
Statement filed by the Company, give the Rights Holders, the underwriters, if
any, and their respective counsel and accountants the opportunity to participate
in the preparation of such Registration Statement (other than reports and proxy
statements incorporated therein by reference and lawfully and properly filed
with the SEC) and each Prospectus included therein or filed with the SEC, and
each amendment thereof or supplement thereto; and
(b) the Company shall give the Rights Holders, the
underwriters, if any, and their respective counsel and accountants such
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such Rights Holders, as the case may be, or such underwriters, to
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conduct a reasonable investigation within the meaning of Section 11(b)(3) of the
Securities Act.
10. Rule 144 and Rule 144A. At all times during which the
Company is subject to the periodic reporting requirements of the Exchange Act,
the Company covenants that it will file, on a timely basis, the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder, and it will take such further
action as any Holder may reasonably request (including, without limitation,
compliance with the current public information requirements of Rule 144(c) and
Rule 144A under the Securities Act), all to the extent required from time to
time to enable the Holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the conditions provided by (a)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, (b) Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or (c) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of a Holder, the Company will provide reasonable and
customary assistance to facilitate such Holder's sale of Registrable Securities
in block trades or other similar transactions. Notwithstanding the foregoing,
nothing in this Section 10 shall be deemed to require the Company to register
any of it securities pursuant to the Exchange Act.
11. No Inconsistent Agreements. The Company will not enter
into any agreement offering registration rights of the nature set forth herein
without the consent of the holders of a majority of the Registrable Securities,
which consent may be withheld, in their sole discretion. Notwithstanding
anything in this Agreement to the contrary, the Company shall be allowed to
grant demand registration rights and piggyback registration rights on terms
substantially similar to those provided in this Agreement to new stockholders of
the Company prior to an IPO.
12. Assignment of Rights. Except for the Special COSI
Rights, any Holder may assign its rights under the Agreement to (a) any
transferee of the Registrable Securities of such Holder, if such transferee has
executed this Agreement and agreed to be bound by the terms hereof (it being
understood, however, that such Holder shall retain all of such Holder's rights
hereunder with respect to all Registrable Securities not so transferred thereby)
or (b) any stockholder, subsidiary, partner, nominee or affiliate of such Holder
or any such transferee. The transferor shall, within twenty (20) days after such
transfer, furnish the Company with written notice of the name and address of
such transferee and the securities with respect to which such registration
rights are being assigned. No such transfer may increase the aggregate number of
rights to request a Demand Registration. The Special COSI Rights may not be
assigned to any party except Constellation and its Affiliates unless otherwise
agreed in writing by each of the Company, GSCP, Constellation, Mitsubishi and
TEPCO International.
13. Duration of Agreement. Subject to Section 12, the rights
and obligations of a Holder under this Agreement shall terminate at such time as
such Holder no longer is the beneficial owner of any Shares. All terms of this
Agreement shall survive until, by their respective terms, they are no longer
operative.
14. Amendment and Waiver. Except as otherwise provided
herein, no modification,
-17-
18
amendment or waiver of any provision of this Agreement shall be effective
against the Company or any Holder unless such modification, amendment or waiver
is approved in writing signed by the Company and holders of a majority of the
Registrable Securities.
15. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
16. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
17. Successors and Assigns. Subject to Section 12, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Holders and their respective successors, assigns, heirs and personal
representatives, such that the rights under this Agreement shall inure to the
benefit of and be binding upon subsequent holders of Registrable Securities.
This Agreement shall inure to the benefit of and be binding upon the Company and
any corporation resulting from the merger or consolidation of the Company with
or into such corporation (in which the Company is not the surviving corporation)
or any corporation whose securities are issued in exchange for Shares.
18. Counterparts. This Agreement may be executed in separate
counterparts each of which, when executed and delivered to the other parties,
shall be an original and all of which taken together shall constitute one and
the same agreement.
19. Remedies. Each party hereto shall be entitled to enforce
its rights under this Agreement specifically to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that each party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
20. Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered or sent by facsimile or
reputable overnight courier service (charges prepaid) to the Company, GSCP,
Constellation, COSI, Mitsubishi and TEPCO International at the addresses set
forth below and to any subsequent holder of Stock subject to this Agreement at
such address as the Company maintains on its books and records, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally
-18-
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or on receipt.
The Company's address is: Orion Power Holdings, Inc.
7 East Redwood Street
10th Floor
Baltimore, Maryland 21202
Facsimile: (410) 234-0994
Attention: General Counsel
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Facsimile: (212) 859-4000
Attention: Paul M. Reinstein, Esq.
GSCP's address is: GS Capital Partners II, L.P.
85 Broad Street
New York, New York 10004
Facsimile: (212) 902-3000
Attention: Ben Adler, Esq.
Constellation's address is: 111 Market Place
Suite 500
Baltimore, Maryland 21202
Facsimile: (410) 468-3499
Attention: David M. Perlman, Esq.
COSI's address is: Constellation Operating Services, Inc.
111 Market Place, Suite 200
Baltimore, Maryland 21202
Facsimile: (410) 230-4849
Attention: Secretary
DGC's address is: Diamond Generating Corporation
333 S. Grand Avenue, Suite 3000
Los Angeles, California 90071
Facsimile: 213-620-1170
Attention: President
with a copy to:
Mitsubishi Corporation
6-3, Marunouchi 2-chome, Chiyoda-ku
Tokyo 100-8086, Japan
Facsimile: 81-3-3210-4246
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Attention: Power & Traffic Project
Development Department
with a copy to:
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, 22nd Floor
Los Angeles, California 90071
Facsimile: (213) 612-2554
Attention: Richard A. Shortz, Esq.
DCI's address is: Diamond Cayman, Inc.
c/o Mitsubishi Corporation
6-3, Marunouchi 2-chome, Chiyoda-ku
Tokyo 100-8086, Japan
Facsimile: 81-3-3210-4246
Attention: MC/TOK (MD-B)
with a copy to:
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, 22nd Floor
Los Angeles, California 90071
Facsimile: (213) 612-2554
Attention: Richard A. Shortz, Esq.
MIC's address is: Mitsubishi International Corporation
520 Madison Avenue
New York, New York
Attention: Legal Department
Facsimile: 212-605-1771
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with a copy to:
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, 22nd Floor
Los Angeles, California 90071
Facsimile: (213) 612-2554
Attention: Richard A. Shortz, Esq.
TEPCO International's address is: Tokyo Electric Power Company
International B.V.
Officia 1, De Boelelaan 7, 1083HJ
Amsterdam, The Netherlands
Facsimile: 31-20-642-7675
Attention: BTM Trust (Holland) B.V.
with a copy to: The Tokyo Electric Power Co., Inc.
1-3 Uchisaiwai-cho 1-chome Chiyoda-ku
Tokyo 100-0011 Japan
Facsimile: 81-3-3596-8438
Attention: Business Development Group International
Affairs Department
with a copy to:
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, 22nd Floor
Los Angeles, California 90071
Facsimile: (213) 612-2554
Attention: Richard A. Shortz, Esq.
21. Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the principles of
conflicts of law. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States of America, in each case
located in the County of New York, for any action, proceeding or investigation
in any court or before any governmental authority ("Litigation") arising out of
or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any Litigation relating thereto except in such courts),
and further agrees that service of any process, summons, notice or document by
U.S. registered mail to its respective address set forth in this Agreement shall
be effective service of process for any Litigation brought against it in any
such court. Each of the parties hereto hereby irrevocably and unconditionally
waives any objection to the laying of venue of any Litigation arising out of
this Agreement or the transactions contemplated hereby in the courts of the
State of New York or the United States of America, in each case located in the
County of New York, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such Litigation
brought in any such court has been brought in an inconvenient forum. Each of the
parties irrevocably and unconditionally waives, to the fullest
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22
extent permitted by applicable law, any and all rights to trial by jury in
connection with any Litigation arising out of or relating to this Agreement or
the transactions contemplated hereby.
22. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
23. Construction. Where specific language is used to clarify
by example a general statement contained herein, such specific language shall
not be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
-22-
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement on the day and year first above written.
ORION POWER HOLDINGS, INC.
By:
----------------------------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By:
----------------------------------------------------------
CONSTELLATION ENTERPRISES, INC.
By:
---------------------------------------------------------
Name:
Title:
CONSTELLATION OPERATING SERVICES, INC.
By:
---------------------------------------------------------
Name:
Title:
OTHER GS ENTITIES
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.P., its general partner
By: GS Advisors III, Inc., its general partner
By:
---------------------------------------------------------
24
STONE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp., its general partner
By:
----------------------------------------------------------
Name:
Title:
BRIDGE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp., its managing general partner
By:
-------------------------------------------------------
Name:
Title:
BRIDGE STREET FUND 2000, L.P.
By:
By:
-------------------------------------------------------
Name:
Title:
STONE STREET FUND 2000, L.P.
By:
By:
-------------------------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P., its general partner
By: GS Advisors II, Inc., its general partner
By:
------------------------------------------------------
Name:
Title:
25
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III (Cayman), L.P., its general partner
By: GS Advisors III, Inc., its general partner
By:
------------------------------------------------------
Name:
Title:
GOLDMAN, SACHS & CO. VERWALTUNGS GmbH
(as nominee for GS Capital Partners II Germany C.L.P.)
By:
------------------------------------------------------
Name:
Title:
and
By:
------------------------------------------------------
Name:
Title:
GOLDMAN, SACHS & CO. VERWALTUNGS GmbH
(as nominee for GS Capital Partners III Germany C.L.P.)
By:
------------------------------------------------------
Name:
Title:
and
By:
------------------------------------------------------
Name:
Title:
DIAMOND GENERATING CORPORATION
By:
-----------------------------------------------------
Name:
Title:
26
DIAMOND CAYMAN, INC.
By:
-----------------------------------------------------
Name:
Title:
MITSUBISHI INTERNATIONAL CORPORATION
By:
-----------------------------------------------------
Name:
Title:
TOKYO ELECTRIC POWER COMPANY INTERNATIONAL B.V.
By:
------------------------------------------------------
Name:
Title: