exv10w1






EXHIBIT 10.1




 





Registration Rights Agreement




Dated as of August 7, 2009




among




FirstEnergy Solutions Corp.,

(an Ohio corporation)

as Issuer




and




Morgan Stanley & Co. Incorporated

Barclays Capital Inc.

Credit Suisse Securities (USA) LLC

RBS Securities Inc.

as Representatives of the Initial Purchasers




 






 









 








REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this
7th day of August, 2009, by and between FirstEnergy Solutions Corp., an Ohio corporation
(the “Issuer”) and Morgan Stanley & Co. Incorporated (“Morgan Stanley”), Barclays
Capital Inc. (“Barclays”), Credit Suisse Securities (USA) LLC (“Credit Suisse”) and
RBS Securities Inc. (“RBS”), as Representatives (defined below) of the Initial Purchasers
(defined below).




          This Agreement is made pursuant to the Purchase Agreement, dated August 4, 2009 (the
“Purchase Agreement”), between the Issuer and Morgan Stanley, Barclays, Credit Suisse and
RBS as Representatives of the Initial Purchasers, which provides for the sale by the Issuer to the
Initial Purchasers of $400,000,000 aggregate principal amount of 4.80% Senior Notes due 2015 (the
“2015 Notes”), $600,000,000 aggregate principal amount of 6.05% Senior Notes due 2021 (the
“2021 Notes”), and $500,000,000 aggregate principal amount of 6.80% Senior Notes due 2039
(the “2039 Notes” and together with the 2015 Notes and the 2021 Notes, the
“Notes”). In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Issuer has agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.




          In consideration of the foregoing, the parties hereto agree as follows:




          1. Definitions.




          1.1 As used in this Agreement, the following capitalized defined terms shall have the
following meanings:





     “1933 Act” shall mean the Securities Act of 1933, as amended from time to time.




     “1934 Act” shall mean the Securities Exchange Act of 1934, as amended from time
to time.




     “2015 Exchange Notes” shall mean, collectively, the Issuer’s 4.80% Exchange
Senior Notes due 2015 containing terms identical to the 2015 Notes in all material respects
(except in each case for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of 2015 Notes in exchange for
Registrable Notes of such series pursuant to the Exchange Offer.




     “2015 Notes” shall mean the Company’s $400,000,000 aggregate principal amount
of 4.80% Senior Notes due 2015.




     “2021 Exchange Notes” shall mean, collectively, the Issuer’s 6.05% Exchange
Senior Notes due 2021 containing terms identical to the 2021 Notes in all material respects
(except in each case for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of 2021 Notes in exchange for
Registrable Notes of such series pursuant to the Exchange Offer.



 









 






     “2021 Notes” shall mean the Company’s $600,000,000 aggregate principal amount
of 6.05% Senior Notes due 2021.




     “2039 Exchange Notes” shall mean, collectively, the Issuer’s 6.80% Exchange
Senior Notes due 2039 containing terms identical to the 2039 Notes in all material respects
(except in each case for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of 2039 Notes in exchange for
Registrable Notes of such series pursuant to the Exchange Offer.




     “2039 Notes” shall mean the Company’s $500,000,000 aggregate principal amount
of 6.80% Senior Notes due 2039.




     “Affiliate” shall have the meaning given to that term in Rule 405 under the
1933 Act or any successor rule thereunder.




     “Barclays” shall have the meaning set forth in the preamble to this Agreement.




     “Closing Date” shall mean the Closing Time as defined in the Purchase
Agreement.




     “Credit Suisse” shall have the meaning set forth in the preamble to this
Agreement.




     “Depositary” shall mean The Depository Trust Company, or any other depositary
appointed by the Issuer, provided, however, that such depositary must have an
address in the Borough of Manhattan, in The City of New York and, provided
further, that if the Notes are not held in book-entry form, references herein to the
Depositary shall be deemed to refer to the Holders.




     “Exchange Notes” shall mean collectively, the 2015 Exchange Notes, the 2021
Exchange Notes and the 2039 Exchange Notes.




     “Exchange Offer” shall mean the exchange offer by the Issuer of Exchange Notes
for Registrable Notes pursuant to Section 2.1 hereof.




     “Exchange Offer Registration” shall mean a registration under the 1933 Act
effected pursuant to Section 2.1 hereof.




     “Exchange Offer Registration Statement” shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by reference therein.




     “Exchange Period” shall have the meaning set forth in Section 2.1 hereof.



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     “First Supplemental Indenture” shall mean the First Supplemental Indenture,
dated as of August 1, 2009, between the Issuer and The Bank of New York Mellon Trust
Company, N.A., as trustee, supplementing the Indenture.




     “Holder” shall mean any beneficial owner from time to time of Registrable Notes
(including any of the Initial Purchasers, for so long as it owns any Registrable Notes).




     “Indenture” shall mean the Indenture, dated as of August 1, 2009, between the
Issuer and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented by
the First Supplemental Indenture, and as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.




     “Initial Purchasers” shall mean the initial purchasers named in Schedule 1 to
the Purchase Agreement.




     “Issuer” shall have the meaning set forth in the preamble to this Agreement and
shall also include the Issuer’s successors.




     “Majority Holders” shall mean the Holders of a majority of the aggregate
principal amount of Outstanding (as defined in the Indenture) Registrable Notes; provided
that whenever the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuer or any Affiliate (as
defined in the Indenture) of the Issuer shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage amount.




     “Morgan Stanley” shall have the meaning set forth in the preamble to this
Agreement.




     “Notes” shall have the meaning set forth in the preamble to this Agreement.




     “Participating Broker-Dealer” shall mean each of Morgan Stanley, Barclays,
Credit Suisse and RBS and any other broker-dealer which makes a market in the Notes and
exchanges Registrable Notes in the Exchange Offer for Exchange Notes.




     “Person” shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.




     “Prospectus” shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including any such prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Notes covered by a Shelf
Registration Statement, and by all other amendments and supplements to a prospectus,
including pre-effective and post-effective amendments, and in each case including all
documents incorporated by reference therein.



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     “Purchase Agreement” shall have the meaning set forth in the preamble to this
Agreement.




     “RBS” shall have the meaning set forth in the preamble to this Agreement.




     “Registrable Notes” shall mean the Notes of any Holder; provided,
however, that such Notes shall cease to be Registrable Notes when (i) a Registration
Statement with respect to such Notes shall have been declared or otherwise become effective
under the 1933 Act and such Notes shall have been disposed of pursuant to such Registration
Statement, (ii) such Notes are eligible for resale to the public pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A under the 1933 Act) under the 1933
Act, (iii) such Notes shall have ceased to be outstanding or (iv) the Exchange Offer is
consummated (except in the case of Notes purchased from the Issuer that continue to be held
by any Initial Purchaser).




     “Registration Expenses” shall mean any and all expenses incident to performance
of or compliance by the Issuer with this Agreement, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all SEC, stock exchange or
Financial Industry Regulatory Authority (formerly known as National Association of
Securities Dealers, Inc. (the “FINRA”)) registration and filing fees, including, if
applicable, the reasonable fees and expenses of any “qualified independent underwriter” (and
its counsel) that is required to be retained by any Holder of Registrable Notes in
accordance with the rules and regulations of the FINRA, (ii) all reasonable fees and
expenses incurred in connection with compliance with state securities or blue sky laws and
compliance with the rules of the FINRA (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky qualification of any of
the Exchange Notes or Registrable Notes and any filings with the FINRA), (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the Registrable Notes on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Issuer and of the independent public accountants of the
Issuer, including the expenses of any special audits or “cold comfort” letters required by
or incident to such performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable fees and expenses
of counsel to the Initial Purchasers in connection therewith, and (ix) any reasonable fees
and disbursements of the underwriters customarily required to be paid by issuers or sellers
of securities and the reasonable fees and expenses of any special experts retained by the
Issuer in connection with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder, it being understood that in no event shall the Issuer be
liable for the fees and expenses of more than one counsel (in addition to any local counsel)
in connection with registration pursuant to either Section 2.1 or Section 2.2 hereof.



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     “Registration Statement” shall mean any registration statement of the Issuer
which covers any of the Exchange Notes or Registrable Notes pursuant to the provisions of
this Agreement, and all amendments and supplements to any such Registration Statement,
including pre-effective and post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by reference therein.




     “Representatives” shall mean each of Morgan Stanley, Barclays, Credit Suisse
and RBS in its capacity as Representatives of the Initial Purchasers.




     “SEC” shall mean the United States Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed by the
United States Securities and Exchange Commission.




     “Shelf Registration” shall mean a registration effected pursuant to Section 2.2
hereof.




     “Shelf Registration Statement” shall mean a “shelf” registration statement of
the Issuer pursuant to the provisions of Section 2.2 of this Agreement which covers all of
the Registrable Notes on an appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all documents incorporated by
reference therein.




     “Trustee” shall mean the trustee with respect to the Notes under the Indenture.



          2. Registration Under the 1933 Act.




          2.1 Exchange Offer. The Issuer shall (A) prepare and, as soon as practicable
following the Closing Date, file with the SEC an Exchange Offer Registration Statement with respect
to a proposed Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Notes, a like principal amount of Exchange Notes, (B) use its reasonable best efforts
to cause the Exchange Offer Registration Statement to be declared effective under the 1933 Act not
later than 180 calendar days following the Closing Date, (C) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective until the closing of the Exchange Offer
and (D) use its reasonable best efforts to cause the Exchange Offer to be consummated within 210
calendar days following the Closing Date. The Exchange Notes will be issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Notes for Exchange Notes (assuming that such Holder
(a) is not an Affiliate of the Issuer within the meaning of Rule 405 under the 1933 Act, (b) is not
a broker-dealer tendering Registrable Notes acquired directly from the Issuer for its own account,
(c) acquired the Exchange Notes in the ordinary course of such Holder’s business and (d) has no
arrangements or understandings with any person to participate in the Exchange Offer for the purpose
of distributing the Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or




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restrictions under the 1933 Act and without material restrictions under the securities laws of
a majority of the several states of the United States.




          In connection with the Exchange Offer, the Issuer shall:





     (a) mail to the Depositary a copy of the Prospectus forming part of the Exchange Offer
Registration Statement together with an appropriate letter of transmittal and related
documents;




     (b) use its reasonable best efforts to keep the Exchange Offer open for acceptance for
a period of not less than 20 business days after the date notice thereof is mailed to the
Depositary (or longer if required by applicable law) (such period referred to herein as the
“Exchange Period”);




     (c) utilize the services of the Depositary for the Exchange Offer;




     (d) permit Holders to withdraw tendered Registrable Notes at any time prior to 5:00
p.m. (Eastern Time) on the last business day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Registrable Notes delivered
for exchange, and a statement that such Holder is withdrawing his election to have such
Notes exchanged;




     (e) notify the Depositary that any Registrable Notes not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as
provided herein); and




     (f) otherwise comply in all respects with all applicable laws relating to the Exchange
Offer.



          As soon as practicable after the close of the Exchange Offer, the Issuer shall:





     (i) accept for exchange all Registrable Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of transmittal which shall be
an exhibit thereto;




     (ii) deliver to the Trustee for cancellation all Registrable Notes so accepted
for exchange; and




     (iii) cause the Trustee promptly to authenticate and deliver the respective
Exchange Notes to each Holder of Registrable Notes so accepted for exchange in a
principal amount equal to the principal amount of the Registrable Notes of such
Holder so accepted for exchange.



          The Issuer shall use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained therein,



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in order to permit such Prospectus to be lawfully delivered by all Participating
Broker-Dealers subject to the prospectus delivery requirements of the 1933 Act for such period of
time as such Participating Broker-Dealers must comply with such requirements in order to resell the
Exchange Notes; provided, however, that (i) such period shall end on the earlier of 90 days after
the consummation of the Exchange Offer and the date on which all Participating Broker-Dealers have
sold all Exchange Notes held by them (unless such period is extended pursuant to Section 3(k)
below) and (ii) the Issuer shall make such Prospectus, and any amendment or supplement thereto,
available to any such Participating Broker-Dealer for use in connection with any resale of any
Exchange Notes for a period ending on the earlier of 90 days after the consummation of the Exchange
Offer and the date on which all Participating Broker-Dealers have sold all Exchange Notes held by
them (unless such period is extended pursuant to Section 3(k) below).



          Interest on the Exchange Notes will accrue from the most recent interest payment date to which
interest has been paid on the respective Registrable Notes surrendered in exchange therefor or, if
no interest has been paid on such Registrable Notes, from the Closing Date. The Exchange Offer
shall not be subject to any conditions, other than (i) that the Exchange Offer, or the making of
any exchange by a Holder, does not violate applicable law or any applicable interpretation of the
staff of the SEC, (ii) the due tendering of Registrable Notes in accordance with the Exchange
Offer, (iii) that each Holder of Registrable Notes exchanged in the Exchange Offer shall have
represented (x) that all Exchange Notes to be received by it shall be acquired in the ordinary
course of its business (y) that it is not an Affiliate of the Issuer and (z) that at the time of
the consummation of the Exchange Offer it shall have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange
Notes and shall have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or proceeding shall have been
instituted or threatened in any court or by or before any governmental agency with respect to the
Exchange Offer which, in the judgment of the Issuer, would reasonably be expected to impair the
ability of the Issuer to proceed with the Exchange Offer. The Issuer shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender
of Registrable Notes in the Exchange Offer. Each Holder of Registrable Notes who wishes to
exchange such Registrable Notes for Exchange Notes in the Exchange Offer will be required to make
certain customary representations in connection therewith, including representations that (i) all
Exchange Notes to be received by it were acquired in the ordinary course of its business, (ii)  it
is not an Affiliate of the Issuer and (iii) at the time of the consummation of the Exchange Offer
it shall have no arrangement or understanding with any person to participate in the distribution
(within the meaning of the 1933 Act) of the Exchange Notes and shall have made such other
representations as may be reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or other appropriate form under the 1933 Act
available. Each Holder hereby acknowledges and agrees that any Participating Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of the Exchange Notes:
(1) could not under SEC policy as in effect on the date of this Agreement rely on the position of
the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman &
Sterling dated July 2, 1993, and similar



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no-action letters (including any no-action letter obtained based on the representation in
clause (i) above), and (2) must comply with the registration and prospectus delivery requirements
of the 1933 Act in connection with the secondary resale transaction and that such a secondary
resale transaction should be covered by an effective registration statement containing the selling
security holder information required by Items 507 and 508, as applicable, of Regulation S-K, the
SEC standard instructions for filing forms under the 1933 Act, if the resales are of Exchange Notes
obtained by such Holder in exchange for Notes acquired by such Holder directly from the Issuer or
an affiliate of the Issuer.



          2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Issuer is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any other
reason (A) the Exchange Offer Registration Statement is not declared effective within 180 calendar
days following the Closing Date or (B) the Exchange Offer is not consummated within 210 calendar
days after the Closing Date (provided that the Issuer is not then actively pursuing such
effectiveness or consummation, as the case may be), (iii) upon the written request of the Initial
Purchasers with respect to any Registrable Notes which they acquired directly from the Issuer,
(iv) upon the written request of any Holder that either (A) is not permitted pursuant to applicable
law, SEC rules and regulations or applicable interpretations thereof by the staff of the SEC to
participate in the Exchange Offer or (B) participates in the Exchange Offer and does not receive
fully tradable Exchange Notes pursuant to the Exchange Offer, or (v) if the Issuer so elects, then
in case of each of clauses (i) through (v) the Issuer shall, at its cost:





     (a) as promptly as practicable, file with the SEC, and thereafter shall use its
reasonable best efforts to cause to be declared or otherwise become effective as promptly as
practicable but no later than 180 calendar days after the Closing Date, a Shelf Registration
Statement relating to the offer and sale of the Registrable Notes by the Holders from time
to time in accordance with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf Registration Statement;




     (b) use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming a part thereof to be usable
by Holders for a period ending on the earliest of (i) two years from the Closing Date,
(ii) the date on which the Registrable Notes become eligible for resale without volume
limitations pursuant to Rule 144 under the 1933 Act, or (iii) for such shorter period that
will terminate when all Registrable Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be outstanding or
otherwise to be Registrable Notes; and




     (c) notwithstanding any other provisions hereof, use its reasonable best efforts to
ensure that (i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading and (iii) any



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Prospectus forming a part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not misleading.



          The Issuer further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Depositary copies of any such
supplement or amendment as promptly as reasonably practicable after its being used or filed with
the SEC.




          No Holder of Registrable Notes shall be entitled to include any of its Registrable Notes in
any Shelf Registration Statement pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Issuer in writing, within 15 days after receipt of a request therefor, such
information as the Issuer may, after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf Registration Statement
or Prospectus included therein. Each Holder as to which any Shelf Registration is being effected
agrees promptly to furnish to the Issuer all information with respect to such Holder necessary to
make the information previously furnished to the Issuer by such Holder not materially misleading.




          2.3 Expenses. The Issuer shall pay all Registration Expenses in connection with the
registration pursuant to Section 2.1 or 2.2 hereof. Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such
Holder’s Registrable Notes pursuant to the Shelf Registration Statement.




          2.4 Effectiveness.





     (a) The Issuer will be deemed not to have used its reasonable best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if the Issuer voluntarily
takes any action that would, or omits to take any action which omission would, result in any
such Registration Statement not being declared or otherwise becoming effective or in the
Holders of Registrable Notes covered thereby not being able to exchange or offer and sell
such Registrable Notes during that period as and to the extent contemplated hereby, unless
such action is required by applicable law.




     (b) Neither an Exchange Offer Registration Statement pursuant to Section 2.1 hereof nor
a Shelf Registration Statement pursuant to Section 2.2 hereof will be deemed to have become
effective unless it has been declared effective by the SEC or otherwise become effective
under the 1933 Act; provided, however, that if, after it has been declared or otherwise
become effective, the offering of Registrable Notes pursuant to a Shelf Registration
Statement is interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of



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such interference until the offering of Registrable Notes pursuant to such Registration
Statement may legally resume.



          2.5 Additional Interest. The Notes will provide that if the Exchange Offer is not
consummated and the Shelf Registration Statement is not declared or does not otherwise become
effective on or prior to the date that is 210 calendar days after the Closing Date, the interest
rate on the Notes will be increased by 0.25% per annum commencing on the date that is 210 calendar
days after the Closing Date, until the Exchange Offer is consummated or the Shelf Registration
Statement is declared effective by the SEC or has otherwise become effective; provided, that in the
case of a Shelf Registration Statement, if the Issuer is unable to cause such Shelf Registration
Statement to become effective because Holders of Registrable Notes have not provided information
with respect to themselves as required by law to be included therein pursuant to the Issuer’s
request as provided herein, such 0.25% increase in the interest rate shall be payable only to
Holders that have furnished such information required by law to be included therein to the Issuer
pursuant to its request hereunder from but excluding the date such information is provided to the
Issuer to but excluding the date the Shelf Registration Statement is declared effective by the SEC
or otherwise became effective (such increased interest, the “Additional Interest”).




          2.6 Specific Enforcement. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with
its obligations under Sections 2.1 and 2.2 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required to specifically
enforce the Issuer’s obligations under Sections 2.1 and 2.2 hereof.




          3. Registration Procedures.




          In connection with the obligations of the Issuer with respect to Registration Statements
pursuant to Sections 2.1 and 2.2 hereof, the Issuer shall:





     (a) prepare and file with the SEC a Registration Statement, within the relevant time
period specified in Section 2 hereof, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Issuer, (ii) shall in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders thereof, (iii) shall
comply as to form in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and (iv) shall comply in all respects with
the requirements of Regulation S-T under the 1933 Act, and use its best efforts to cause
such Registration Statement to become effective and remain effective in accordance with
Section 2 hereof;




     (b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such Registration
Statement effective for the applicable period, and cause each Prospectus to be supplemented
by any required prospectus supplement, and as so



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supplemented to be filed pursuant to Rule 424 under the 1933 Act and comply with the
provisions of the 1933 Act applicable to them with respect to the disposition of all
securities covered by each Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the selling Holders thereof;




     (c) in the case of a Shelf Registration, (i) notify the Depositary, at least five (5)
business days prior to filing, that a Shelf Registration Statement with respect to the
Registrable Notes is being filed and advise the Depositary that the distribution of
Registrable Notes will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to the Depositary and to each
underwriter of an underwritten offering of Registrable Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as the Depositary or underwriter may reasonably
request, including financial statements and schedules and, if the Depositary so requests,
all exhibits, in order to facilitate the public sale or other disposition of the Registrable
Notes; and (iii) hereby consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes in connection with the offering
and sale of the Registrable Notes covered by the Prospectus or any amendment or supplement
thereto;




     (d) use its best efforts to register or qualify the Registrable Notes under all
applicable state securities or “blue sky” laws of such jurisdictions as any Holder of
Registrable Notes covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Notes shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC or has otherwise
become effective under the 1933 Act, and do any and all other acts and things which may be
reasonably necessary or advisable to enable each such Holder and underwriter to consummate
the disposition in each such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that the Issuer shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction where it is not then
so subject;




     (e) notify promptly each Holder of Registrable Notes under a Shelf Registration or any
Participating Broker-Dealer who has notified the Issuer that it is utilizing the Exchange
Offer Registration Statement as provided in Section 3(f) hereof, and, if requested by such
Holder or Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and



11









 







the closing of any sale of Registrable Notes covered thereby, the representations and
warranties of the Issuer contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be true and correct in
all material respects, (v) of the happening of any event or the discovery of any facts
during the period a Shelf Registration Statement is effective or an Exchange Offer
Registration Statement is being utilized pursuant to Section 2.1 above which makes any
statement made in such Registration Statement or related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading, and (vi) of the receipt
by the Issuer of any notification with respect to the suspension of the qualification of the
Registrable Notes or the Exchange Notes, as the case may be, for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;




     (f) in the case of the Exchange Offer Registration Statement (i) include in the
Prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan
of Distribution” which section shall be reasonably acceptable to the Initial Purchasers or
another representative of the Participating Broker-Dealers and shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with respect to
the potential “underwriter” status of any broker-dealer that holds Registrable Notes
acquired for its own account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule 13d-3 under the 1934
Act) of Exchange Notes to be received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchasers and their
counsel, represent the prevailing views of the staff of the SEC, including a statement that
any such broker-dealer who receives Exchange Notes for Registrable Notes pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such Exchange Notes,
(ii) furnish to each Participating Broker-Dealer who has delivered to the Issuer the notice
referred to in Section 3(e) hereof, without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto, by any person subject
to the prospectus delivery requirement of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:




“if the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a result
of market-making activities or other trading activities, it
will deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of Exchange Notes



12









 







received in respect of such Registrable Notes pursuant to
the Exchange Offer;” and




(y) a statement to the effect that by a broker-dealer making the acknowledgment described in
clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Notes, the broker-dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act;




     (g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers
and (ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable
Notes, copies of any comment letters received from the SEC or any other request by the SEC
or any state securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;




     (h) make every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;




     (i) in the case of a Shelf Registration, furnish to the Depositary, and each
underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference and exhibits thereto, unless
requested);




     (j) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Notes to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold and not bearing any restrictive legends, and
enable such Registrable Notes to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the underwriters, if
any, may reasonably request at least three (3) business days prior to the closing of any
sale of Registrable Notes;




     (k) in the case of a Shelf Registration, upon the occurrence of any event or the
discovery of any facts, each as contemplated by Sections 3(e)(ii), 3(e)(iv), 3(e)(v) and
3(e)(vi) hereof, or in the case of an Exchange Offer Registration Statement, upon the
occurrence of any event or the discovery of facts, each as contemplated by Sections
3(e)(ii), 3(e)(v) and 3(e)(vi) hereof, use its best efforts to 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 Notes or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and notify each Holder to
suspend use of the Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus until such time as
such Holder has received from the Issuer an amended or supplemented Prospectus correcting
such misstatement or omission;



13









 






     (l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchasers on behalf
of such Holders, and make representatives of the Issuer as shall be reasonably requested by
the Holders of Registrable Notes, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;




     (m) obtain a CUSIP number for all Exchange Notes or Registrable Notes, as the case may
be, not later than the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable Notes, as the case may
be, in a form eligible for deposit with the Depositary;




     (n) (i) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as
amended (the “TIA”), in connection with the registration of the Exchange Notes or
Registrable Notes, as the case may be, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA, and (iii) execute, and use its best efforts to
cause the Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;




     (o) in the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Notes and in such connection whether or not
an underwriting agreement is entered into and whether or not the registration is an
underwritten registration:




     (i) make such representations and warranties to the Holders of such Registrable
Notes and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them;




     (ii) obtain opinions of counsel to the Issuer and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and the holders of a majority in principal
amount of the Registrable Notes being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;




     (iii) if requested by any selling Holder of Registrable Notes or underwriter,
obtain “cold comfort” letters and updates thereof from the independent registered
public accounting firm of the Issuer who have certified the financial statements of
the Issuer and any other entity included or incorporated by reference in the
Registration Statement addressed to the such underwriters, if any,



14









 







and use reasonable efforts to have such letter addressed to the selling Holders
of Registrable Notes (to the extent consistent with SAS 72), such letters to be in
customary form and covering matters of the type customarily covered in “cold
comfort” letters to underwriters in connection with similar underwritten offerings;




     (iv) enter into a securities sales agreement with the Holders and an agent of
the Holders providing for, among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of Registrable Notes, which
agreement shall be in form, substance and scope customary for similar offerings;




     (v) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Sections 4 and 5 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to said
Sections or, at the request of any underwriters, in the form customarily provided to
such underwriters in similar types of transactions; and




     (vi) deliver such documents and certificates as may be reasonably requested and
as are customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Notes being sold and the managing underwriters,
if any.




The above shall be done at (i) the effectiveness of such Registration Statement (and each
post-effective amendment thereof) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;




     (p) in the case of a Shelf Registration, make available for inspection by
representatives of the Holders of the Registrable Notes and any underwriters participating
in any disposition pursuant to a Shelf Registration Statement and any counsel or accountant
retained by such Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Issuer reasonably requested by any such persons
and use its reasonable best efforts to cause the respective officers, directors, employees,
and any other agents of the Issuer to supply all information reasonably requested by any
such representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Issuer available for discussion
of such documents as shall be reasonably requested by the Initial Purchasers;




     (q)




     (i) in the case of an Exchange Offer Registration Statement, within a
reasonable time prior to the filing of any Exchange Offer Registration Statement,
any Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to such Prospectus, provide copies
of such document to the Initial Purchasers and make such changes in any such
document prior to the filing thereof as the Initial Purchasers may reasonably



15









 







request and, except as otherwise required by applicable law, not file any such
document in a form to which the Initial Purchasers on behalf of the Holders of
Registrable Notes shall reasonably object; and




     (ii) in the case of a Shelf Registration, within a reasonable time prior to
filing any Shelf Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Depositary, to the Initial
Purchasers, to counsel on behalf of the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any, make such
changes in any such document prior to the filing thereof as the Initial Purchasers,
the counsel to the Holders or the underwriter or underwriters reasonably request and
not file any such document in a form to which the Majority Holders or the Initial
Purchasers on behalf of the Holders of Registrable Notes or any underwriter may
reasonably object and make the representatives of the Issuer available for
discussion of such document as shall be reasonably requested by the Holders of
Registrable Notes, the Initial Purchasers on behalf of such Holders, or any
underwriter;




     (r) in the case of a Shelf Registration, use its reasonable best efforts to cause all
Registrable Notes to be listed on any securities exchange on which similar securities issued
by the Issuer are then listed if requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable Notes, if any;




     (s) in the case of a Shelf Registration, use its reasonable best efforts to cause the
Registrable Notes to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Notes, if any;




     (t) otherwise comply with all applicable rules and regulations of the SEC and make
available to security holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder;




     (u) cooperate and assist in any filings required to be made with the FINRA and, in the
case of a Shelf Registration, in the performance of any due diligence investigation by any
underwriter and its counsel (including any “qualified independent underwriter” that is
required to be retained in accordance with the rules and regulations of the FINRA); and




     (v) in the case of any Exchange Offer Registration Statement, upon consummation of an
Exchange Offer,




          (A) obtain a customary opinion of counsel to the Issuer addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the Exchange Offer, and
which includes an opinion that (i) the Issuer has duly authorized, executed and



16









 







delivered the Exchange Notes and the Indenture and (ii) each of the Exchange Notes and
the Indenture constitute legal, valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms (with customary exceptions); and




          (B) deliver to the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if requested by the Initial Purchasers or such other
representative of the Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers (i) an opinion of counsel or opinions of counsel substantially in the form
attached hereto as Exhibit A and (ii) an officer’s certificate substantially in the form
customarily delivered in a public offering of debt securities.



          In the case of a Shelf Registration Statement, the Issuer may (as a condition to such Holder’s
participation in the Shelf Registration) require each Holder of Registrable Notes to furnish to the
Issuer such information regarding the Holder and the proposed distribution by such Holder of such
Registrable Notes as the Issuer may from time to time reasonably request in writing for use in
connection with any Shelf Registration Statement or Prospectus included therein, including, without
limitation, information specified in Item 507 of Regulation S-K under the 1933 Act. Each Holder as
to which any Shelf Registration is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed with respect to such Holder in order to make any information
with respect to such Holder previously furnished to the Issuer by such Holder not materially
misleading.




          In the case of a Shelf Registration Statement or an Exchange Offer Registration Statement,
each Holder agrees that, upon receipt of any notice directly or indirectly from the Issuer of the
happening of any event or the discovery of any facts, each of the kind described in Section 3(e)(v)
hereof, such Holder will forthwith discontinue disposition of Registrable Notes pursuant to a
Registration Statement until such Holder’s receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof, and, if so directed by the Issuer, such Holder will
deliver to the Issuer (at such Holder’s expense) all copies in such Holder’s possession, other than
permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable
Notes current at the time of receipt of such notice.




          If any of the Registrable Notes covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the underwriter or underwriters and manager or managers that will manage
such offering will be selected by the Majority Holders of such Registrable Notes included in such
offering and shall be acceptable to the Issuer. No Holder of Registrable Notes may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder’s
Registrable Notes on the basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents required under the
terms of such underwriting agreement.




          4. Indemnification.




          4.1 Indemnification by the Issuer. The Issuer agrees to indemnify and hold harmless
each Initial Purchaser, its directors and officers, each Holder, each Participating Broker-Dealer,
each Person who participates as an underwriter (any such Person being an




17









 







“Underwriter”) and each Person, if any, who controls any Holder or Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any and
all losses, claims, damages and liabilities that arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any Registration Statement
pursuant to which Exchange Notes or Registrable Notes were registered under the 1933 Act or any
related Prospectus or any related Issuer Free Writing Prospectus (as that term is defined in Rule
433(h)(1) under the 1933 Act), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each Initial Purchaser and each controlling person, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage or liability, except insofar as such losses, claims, damages or
liabilities arise out of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission or are based upon information furnished in writing to the Issuer by
any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with respect to such
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter, as the case may be,
specifically for inclusion therein.




          4.2 Indemnification by the Holders, Initial Purchasers, Participating Broker-Dealers and
Underwriters. Each Holder, each Initial Purchaser, each Participating Broker-Dealer and each
Underwriter severally, but not jointly, agrees to indemnify and hold harmless the Issuer, each
other Initial Purchaser, each other Participating Broker-Dealer, each other Underwriter and each
other selling Holder, and each of their respective directors and officers, and each Person, if any,
who controls the Issuer, any Initial Purchaser, any Participating Broker-Dealer, any Underwriter,
or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity contained in Section 4.1 hereof, but only
with reference to written information relating to such Holder, Initial Purchaser, Participating
Broker-Dealer or Underwriter furnished in writing to the Issuer by such Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter specifically for inclusion in the Shelf Registration
Statement or such Prospectus; provided, however, that no such Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Holder, Initial Purchaser, Participating Broker-Dealer
or Underwriter from the sale of Registrable Notes pursuant to such Shelf Registration Statement.
This indemnity agreement will be in addition to any liability which such Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter may otherwise have.




          4.3 Actions Against Parties; Notification. Promptly after receipt by an indemnified
party under Section 4.1 or 4.2 hereof of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under
Section 4.1 or 4.2 hereof, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party (i) will not relieve it from any liability
under Section 4.1 or 4.2 hereof unless and to the extent such failure results in the loss by the
indemnifying party of substantial rights and defenses and (ii) will not, in any event relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in Section 4.1 or 4.2 hereof. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and




18









 




the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded upon
advice of counsel that there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying party. It is
understood that the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate
counsel for all such indemnified parties. Such counsel shall be designated in writing by the
Representatives in the case of parties indemnified pursuant to the second preceding paragraph, and
by the Issuer in the case of parties indemnified pursuant to the first preceding paragraph.




          4.4 Settlement Without Consent. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason of such settlement or
judgment. An indemnifying party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or
proceeding and (ii) does not include any statement as to, or any admission of, fault, culpability
or failure to act by or on behalf of any indemnified party.




          5. Contribution. In the event that the indemnity provided for in Section 4.1 or
4.2 hereof is held by a court to be unavailable, in whole or in part, to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall have several and
not joint obligation to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively “Losses”) to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the offering of the
Notes, the Exchange Notes or the Registrable Notes and the Registration Statement which resulted in
such Losses. If the allocation provided by the immediately preceding sentence is held by a court
to be unavailable for any reason, the indemnifying party and the indemnified party shall contribute
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party on the one hand and of such indemnified party on the
other hand in connection with the statements or omissions that resulted in such Losses, as well as
any other relevant equitable considerations. Benefits received by the Issuer shall be deemed to be
equal to the sum of (x) the total net proceeds from the offering (before deducting expenses) and
(y) the total amount of Additional Interest (as defined in Section 2.5 hereof) which the Issuer was
not required to pay as a result of registering the securities covered by the Registration Statement
which resulted in the Losses. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total discounts and commissions, and benefits received by any other Holders shall be
deemed to be equal to the value of receiving Notes, Exchange Notes or Registrable Notes, as
applicable, registered under the 1933 Act. Benefits received by any



19









 







Participating Broker-Dealer shall be deemed to be equal to the total commissions relating to
the market-making and exchange of Registrable Notes for Exchange Notes. Benefits received by any
Underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the indemnifying party on the
one hand or by the indemnified party on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding the provisions of this Section 5, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the total price at
which the Notes underwritten by it and distributed by it to the public were offered to the public
exceeds the amounts of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission; nor shall any
Participating Broker-Dealer be required to contribute any amount in excess of the amount by which
the total price at which the Notes exchanged for Exchange Notes by it were offered to the public
exceeds the amounts of any damages which such Participating Broker-Dealer has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission; nor, shall any Underwriter in the case of a Shelf Registration Statement be required to
contribute any amount in excess of the amount by which the total price at which the Notes
underwritten by it exceeds the amounts of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. The parties agree that it would not be just and equitable if contribution were determined
by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any
other method of allocation that does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this Section 5, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.



          For purposes of this Section 5, each person, if any, who controls a Holder, an Initial
Purchaser, a Participating Broker-Dealer or an Underwriter, in each case, within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, shall have the same rights to
contribution as such Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter, as the
case may be, and each officer of the Issuer who shall have signed the Registration Statement, each
director of the Issuer and each person, if any, who controls the Issuer within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Issuer.




          6. Miscellaneous.




          6.1 Rule 144 and Rule 144A. For so long as the Issuer is not subject to the reporting
requirements of Section 13 or 15 of the 1934 Act, the Issuer covenants that it will upon the
request of any Holder of Registrable Notes (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such information to
a prospective purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933 Act,
and (c) take such further action that is reasonable in the circumstances, in each case, to the



20









 







extent required from time to time to enable such Holder to sell its Registrable Notes without
registration under the 1933 Act within the limitation of the exemptions provided by (i) Rule 144
under the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A under the 1933
Act, as such Rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable Notes, the Issuer will
deliver to such Holder a written statement as to whether it has complied with such requirements.
The Issuer agrees to comply with the information obligations to the extent that they are required
by applicable law or regulation.



          If the Issuer becomes subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Issuer covenants that it will file the reports required to be filed by it under the 1933
Act and Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, unless it ceases to be so required to file such reports, in which case it will comply
with the covenants in the immediately preceding paragraph.




          6.2 No Inconsistent Agreements. The Issuer has not entered into and the Issuer will
not after the date of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the Holders of the Issuer’s other issued and outstanding securities under any
such agreements.




          6.3 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers of consents
to departures from the provisions hereof may not be given unless the Issuer has obtained the
written consent of (i) Majority Holders and (ii) Participating Broker-Dealers holding a majority in
aggregate principal amount of the Exchange Notes held by all Participating Broker-Dealers, in each
case to the extent affected by such amendment, modification, supplement, waiver or departure.




          6.4 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, telex, facsimile
transmission, or any courier guaranteeing overnight delivery (a) if to the Depositary, at 55 Water
Street, New York, New York 10041 or if The Depository Trust Company is no longer the Depositary, at
the most current address given by the Depositary to the Issuer by means of a notice given in
accordance with the provisions of this Section 6.4; (b) if to a Holder, at the most current address
given by such Holder to the Issuer by means of a notice given in accordance with the provisions of
this Section 6.4, which address initially is the address set forth in the Purchase Agreement with
respect to the Initial Purchasers; and (c) if to the Issuer, initially at the Issuer’s address set
forth in the Purchase Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 6.4.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two (2) business days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
transmitted by facsimile; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.




21









 








          Copies of all such notices, demands or other communications shall be concurrently delivered by
the person giving the same to the Trustee under the Indenture, at the address specified in the
Indenture.




          6.5 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including without
limitation and without the need for an express assignment, subsequent Holders and Participating
Broker-Dealers; provided that nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Notes in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the terms of this
Agreement, and by taking any holding such Registrable Notes such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such person shall be entitled to receive the benefits hereof.




          6.6 Third Party Beneficiaries. The Initial Purchasers (even if the Initial Purchasers
are not Holders of Registrable Notes) shall be third party beneficiaries to the agreements made
hereunder between the Issuer, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder. Each Holder of Registrable
Notes shall be a third party beneficiary to the agreements made hereunder between the Issuer, on
the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or advisable to protect
its rights hereunder.




          6.7 Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.




          6.8 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.




          6.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.




          6.10 Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.




22









 





          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 
	 	FIRSTENERGY SOLUTIONS CORP.

as Issuer

 	 
	 	By:  	/s/
James F. Pearson	 
	 	 	Name:  	James F. Pearson 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 



Signature Page to Registration Rights Agreement relating to

FirstEnergy Solutions Corp.’s Senior Notes due 2015, 2021 and 2039





 









 







Confirmed and accepted as

of the date first above written:




	 	 	 	 	 
	MORGAN STANLEY & CO. INCORPORATED	 	 
	 
	 	 	 	 
	By:
	 	/s/ Yurij Slyz	 	 
	 

	 	 

Name: Yurij Slyz
		 
	 

	 	Title: Vice President		
	 
	 	 	 	 
	BARCLAYS CAPITAL INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Pamela Kendall	 	 
	 

	 	 

Name: Pamela Kendall
	 	 
	 

	 	Title: Director	 	 
	 
	 	 	 	 
	CREDIT SUISSE SECURITIES (USA) LLC	 	 
	 
	 	 	 	 
	By:
	 	/s/ John Cogan	 	 
	 

	 	 

Name: John Cogan
	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	RBS SECURITIES INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Okwudiri Onyedum	 	 
	 

	 	 

Name: Okwudiri Onyedum
	 	 
	 

	 	Title: Senior Vice President	 	 






Acting as Representatives of the Initial Purchasers




Signature Page to Registration Rights Agreement relating to

FirstEnergy Solutions Corp.’s Senior Notes due 2015, 2021 and 2039




 









 








Exhibit A




Form of Opinion of Counsel




          We are of the opinion that the Exchange Offer Registration Statement and the Prospectus (other
than the financial statements, financial schedules and other financial and accounting data
contained or incorporated by reference therein or omitted therefrom and the Form(s) T-1, as to
which we express no view), appeared on its face to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the rules and regulations promulgated under such
provisions.




          In addition, we have participated in conferences and conversations with representatives of the
Issuer, representatives of the independent public accountants of the Issuer, and representatives of
the Initial Purchasers, during which conferences and conversations the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus and have not made any
independent check or verification thereof, during the course of such participation, no information
came to our attention that caused us to believe that the Registration Statement or any amendment
thereto, at the time the Registration Statement or any such amendment became effective, contained
an untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein not misleading, or that the Prospectus or any amendment or supplement
thereto, at the time the Prospectus was issued, at the time any such amended or supplemented
Prospectus was issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading; it
being understood that we express no belief with respect to the financial statements, financial
schedules and other financial and accounting data contained or incorporated by reference in the
Registration Statement and the Prospectus.