Exhibit 4(c)
$350,000,000
PACIFICORP
FIRST MORTGAGE
BONDS
6.10% SERIES DUE
2036
REGISTRATION RIGHTS
AGREEMENT
August 10, 2006
LEHMAN BROTHERS INC.
745 Seventh Avenue
New York, New York 10019
GREENWICH CAPITAL MARKETS,
INC.
101 Park Avenue
New York, New York 10178
Dear Sirs:
PacifiCorp, an Oregon corporation
(the “ Company ”), proposes to issue and sell to
Lehman Brothers Inc., Greenwich Capital Markets, Inc. and the other
Initial Purchasers named in the purchase agreement described below
(collectively, the “ Initial Purchasers ”), upon
the terms set forth in a purchase agreement dated August 7, 2006
(the “ Purchase Agreement ”), $350,000,000
aggregate principal amount of its First Mortgage Bonds, 6.10%
Series due 2036 (the “ Initial Securities
”). The Initial Securities will be issued pursuant to
that certain Mortgage and Deed of Trust, dated as of January 9,
1989, with JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank), as successor trustee (the “ Trustee
”), as heretofore amended and supplemented by the
supplemental indentures thereto (collectively, the “
Mortgage ”). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company agrees
with the Initial Purchasers, for the benefit of the Initial
Purchasers and the registered holders of the Securities (as defined
below) (collectively, the “ Holders ”), as
follows:
1. Registered Exchange
Offer . Unless riot permitted by applicable law (after
the Company has complied with the ultimate paragraph of this
Section 1), the Company shall prepare and file with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement (the “ Exchange Offer Registration
Statement ”) on an appropriate form under the Securities
Act of 1933, as amended (the “ Securities Act
”), with respect to a proposed offer (the “
Registered Exchange Offer ”) to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof),
who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in
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exchange for the Initial Securities,
a like aggregate principal amount of debt securities of the Company
issued under the Mortgage, substantially identical in all material
respects to the Initial Securities and registered under the
Securities Act (the “ Exchange Securities
”). The Company shall use its reasonable best efforts
to cause the Exchange Offer Registration Statement to become
effective under the Securities Act within 365 days (such 365th day
being an applicable “ Effectiveness Deadline ”)
after the date on which the Initial Purchasers purchase the Initial
Securities pursuant to the Purchase Agreement (the “Closing
Date”) and will keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if
required. by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period
being called the “ Exchange Offer Registration
Period” ).
If the Company commences the
Registered Exchange Offer, the Company will be entitled to
consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the
Initial Securities theretofore validly tendered in accordance with
the terms of the Registered Exchange Offer).
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it
being the objective of the Registered Exchange Offer to enable each
Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of the
Securities Act, acquires the Exchange Securities in the ordinary
course of such Holder’s business and has no arrangements or
understanding with any person to participate in the distribution of
the Exchange Securities and is not prohibited by any law or policy
of the Commission from participating in the Registered Exchange
Offer) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the
Securities Act.
The Company acknowledges that,
pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable
exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading
activities, for Exchange Securities (an “ Exchanging
Dealer ”), is required to deliver a prospectus containing
the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the “Exchange Offer Procedures”
section and the “Purpose of the Exchange Offer”
section, and (c) Annex C hereto in the “Plan of
Distribution” section of such prospectus in connection with a
sale of any such Exchange Securities received by such Exchanging
Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities (as defined below)
acquired in exchange for Initial Securities constituting any
portion of an unsold allotment, is required to deliver a prospectus
containing the information required by Items 507 or 508, as
applicable, of Regulation S-K under the Securities Act in
connection with such sale.
The Company shall use its reasonable
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the prospectus contained
therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the
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prospectus delivery requirements of
the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange
Securities; provided , however , that (i) in the case
where such prospectus and any amendment or supplement thereto must
be delivered by an Exchanging Dealer or an Initial Purchaser, such
period shall be the lesser, of 120 days and the date on which all
Exchanging Dealers and the Initial Purchasers have sold all.
Exchange Securities held by them (unless such period is extended
pursuant to Section 3(j) below) and (ii) the Company shall
make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any
resale of any Exchange Securities for a period of not less than,
120 days after the consummation of the Registered Exchange
Offer.
If, upon consummation of the
Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue
and deliver to such Initial Purchaser upon the written request of
such Initial Purchaser, in exchange (the “ Private
Exchange ”) for the Initial Securities held by such
initial Purchaser, a like principal amount of debt securities of
the Company issued under the Mortgage and substantially identical
in all material respects to the Initial Securities (the “
Private Exchange Securities ”). The Initial
Securities, the Exchange Securities and the Private Exchange
Securities are herein collectively called the “
Securities ”.
In connection with the Registered
Exchange Offer, the Company shall:
(a)
mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal for the exchange of such Holder’s
Initial Securities and related documents;
(b)
keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c)
utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate of the
Trustee;
(d)
permit Holders to withdraw tendered Securities at any time prior to
the close of business, New York time, on the last business day on
which the Registered Exchange Offer shall remain open;
and
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(e)
otherwise comply in all material respects with the requirements of
the Securities Act and the rules and regulations promulgated
thereunder to the extent they are applicable to the Exchange Offer
Registration Statement.
As soon as practicable after the
close of the Registered Exchange Offer or the Private Exchange, as
the case may be, the Company shall:
(x)
accept for exchange all the Initial Securities validly tendered
pursuant to the Registered Exchange Offer and the Private Exchange
and not withdrawn prior to the last business day on which the
Registered Exchange Offer shall remain open;
(y)
deliver to the Trustee for cancellation all the Initial Securities
so accepted for exchange; and
(z)
cause the Trustee to authenticate and deliver promptly to each
Holder, of the Initial Securities that were accepted for exchange,
the Exchange Securities or the Private Exchange Securities, as the
case may be, equal in principal amount to the Initial Securities of
such Holder so accepted for exchange.
The Mortgage provides that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Mortgage and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
Interest on each Exchange Security
and Private Exchange Security issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of its business, (ii) at
the time of commencement of the Registered Exchange Offer, such
Holder had no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such
Holder is not an “affiliate,” as defined in Rule 405 of
the Securities Act, of the Company or if it is an affiliate, such
Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv)
if such Holder is not a broker-dealer, that it is not engaged in,
and does not intend to engage in, the distribution of the Exchange
Securities. and (v) if such Holder is a broker-,dealer,
that it will receive Exchange Securities for its own
account
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in exchange for Initial Securities
that were acquired as a result of market-making activities or other
trading activities and that it will be required to acknowledge that
it will deliver a prospectus in connection with any resale of such
Exchange Securities. .
Notwithstanding any other provisions
hereof, the Company will ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer 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
prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
If following the date hereof there
has been announced a change in Commission policy with respect to
exchange offers that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Registered
Exchange Offer is permitted by applicable federal law, the Company
will seek. a no-action letter or other favorable decision
from the Commission allowing the Company to consummate the
Registered Exchange Offer. The Company will pursue the
issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other
actions as may be requested by the Commission or otherwise
reasonably required in connection with the issuance of such
decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the
Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that the Registered Exchange Offer should be permitted
and (iii) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
2.
Shelf Registration . If, (i) because of any change in
law or in applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the
Registered Exchange Offer is not consummated within 400 days of the
Closing Date, (iii) any Initial Purchaser so requests in writing
with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in
the Registered Exchange Offer and held by it following consummation
of the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered
Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange
Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange and any such Holder so
requests in writing for any reason other than the failure by such
Holder to make a timely and valid tender in accordance with the
Registered Exchange Offer, the Company shall take the following
actions (the date on which any of the conditions
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described in the foregoing clauses
(i) through (iv) occur, including in the case of clauses (iii) or
(iv) the receipt of the required notice, being a “ Trigger
Date ”):
(a)
The Company shall as promptly as practicable prepare and file with
the Commission and thereafter use its reasonable best efforts to
cause to be declared effective not later than the latter to occur
of the date that is (i) 150 days after the Trigger Date and (ii)
365 days after the Closing Date (such 150th or 365th day, as the
case may be, being an applicable “ Effectiveness
Deadline ”), a registration statement (the “
Shelf Registration Statement ” and, together with the
Exchange Offer Registration Statement, a “ Registration
Statement ”) on an appropriate form under the Securities,
Act relating to the offer, and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the “ Shelf Registration”) ;
provided , however , that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by
it covered by the Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b)
The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by
the. Holders of the relevant Securities, for a period of two
years (or for such longer period if extended pursuant to Section
3(j) below) from the Closing Date or such shorter period that will
terminate when all the Securities covered by the Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) are no longer
restricted securities (as defined in Rule 144 under the Securities
Act, or any successor rule thereof) (such applicable period being
called the “ Shelf Registration Period
”).
(c)
Notwithstanding’ any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration
Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
promulgated thereunder and (ii) not to contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
3.
Registration Procedures . In connection with any Shelf
Registration Statement contemplated by Section 2 hereof and, to the
extent applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall apply:
(a)
The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment
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thereof and each supplement, if any,
to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold
allotment from the original offering of the Initial Securities) is
participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use its best efforts to
reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchaser reasonably may propose not
later than five business days after delivery ‘of such
documents to such Initial Purchaser; (ii) include the information
set forth in Annex A hereto on the cover, in Annex B hereto in the
“Exchange Offer Procedures” section and the
“Purpose of the Exchange Offer” section and in Annex C
hereto in the “Plan of Distribution” section of the
prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto
in the letter of transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser, include
the information required by Items 507 or 508, as applicable, of
Regulation S-K under the Securities Act in the prospectus forming a
part of the Exchange Offer Registration Statement; (iv) include
within the prospectus contained in the Exchange Offer Registration
Statement a section entitled “Plan of Distribution,”
reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made
by the staff of the Commission with respect to the potential
“underwriter” status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”)) of Exchange Securities received by such broker-dealer in
the Registered Exchange Offer (a “ Participating
Broker-Dealer ”), whether such positions or policies have
been publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration Statement,
include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling
securityholders.
(b)
The Company shall give written notice to the Initial Purchasers,
the Holders of the Securities and any Participating Broker-Dealer
from whom the Company has received prior written notice that it
will be a Participating Broker-Dealer in the Registered Exchange
Offer (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i)
when the Registration Statement or any amendment thereto has been
filed with the Commission and when the Registration Statement or
any amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment thereto
has become effective;
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(ii)
of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or
for additional information;
(iii)
of the issuance by the Commission 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 or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose of which the Company
has knowledge; and
(v)
of the happening of any event. that requires the Company to
make changes in the Registration Statement or the prospectus in
order that the Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus, in light of
the circumstances under which they were made) not
misleading.
(c)
The Company shall make every reasonable effort to obtain the
withdrawal, at the earliest possible time, of any order suspending
the effectiveness of the Registration Statement.
(d)
The Company shill furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at
least one copy of the Shelf Registration Statement and any
post-effective amendment or supplement thereto, including financial
statements and schedules, and, .if the Holder so requests in
writing, all exhibits thereto (including those, if any,
incorporated by reference). The Company shall not, without
the prior consent of the Initial Purchasers, make any offer
relating to the Securities that would constitute a “free
writing prospectus,” as defined in Commission Rule
405.
(e)
The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests in
writing, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if any Initial
Purchaser or any such Holder requests in writing, all exhibits
thereto (including those incorporated by reference).
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(f)
The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use in
accordance with applicable law of the prospectus or any, amendment
or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g)
The Company shall deliver to each Initial Purchaser, any Exchanging
Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange
Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of
this Agreement, to the use in accordance with applicable law of the
prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale
of the Exchange Securities covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h)
Prior to any public offering of the Securities pursuant to any
Registration Statement, the Company shall cooperate with the
Holders of the Securities included therein and their Special
Counsel (as defined in paragraph (p) below) in connection with the
registration or qualification of the Securities for offer and sale
under the securities or “blue sky” laws of such states
of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by such Registration
Statement; provided , however , that the Company
shall not be required to (i) qualify generally to do business in
any jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so
subject.
(i)
The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant
to such Registration Statement.
(j)
Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the
Company is required to maintain an effective Registration
Statement, ‘the Company shall promptly prepare and
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file a post-effective amendment to
the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to snake the statements therein, in light of
the circumstances under which they were made, not misleading.
If the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance
with paragraphs (ii) through (v) of Section 3(b) above to suspend
the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers, the Holders
of the Securities and any such Participating Broker-Dealers shall
suspend use of such prospectus, and the period of effectiveness of
the Shelf Registration Statement provided for in Section 2(b) above
and the Exchange Offer Registration Statement provided for.
in Section 1 above shall each be extended by the number of days
from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k)
Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Initial
Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee
with printed certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be,
in a form eligible for deposit with The Depository Trust
Company.
(1)
The Company will use its reasonable best efforts to comply with all
rules and regulations of the Commission to the extent and so long
as they are applicable to the Registered Exchange Offer or the
Shelf Registration and will make generally available to its
security holders (or otherwise provide in accordance with Section
11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section I1(a) of the Securities. Act, no later
than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the
Company’s first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover
such 12-month period
(m)
The Company shall use its reasonable best efforts to cause the
Mortgage to be qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and, in connection therewith, cooperate
with the Trustee under the Mortgage and the Holders of Securities
to effect such changes to the Mortgage as may be required for such
qualification. In the event that such qualification would
require the appointment of a new trustee under the Mortgage, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Mortgage.
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(n)
The Company may, require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution
of the Securities as the Company may from time to time reasonably
require for inclusion in the Shelf Registration Statement, and the
Company may exclude from such registration the Securities of any
Holder that fails to furnish such information within a reasonable
time after receiving such request.
(o)
The Company shall enter into such customary agreements (including,
if requested, an underwriting agreement in customary form) and take
all such other action, if any, as any Holder of the Securities
shall reasonabl
