SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
NRG Energy, Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
629377508
(CUSIP Number)
MatlinPatterson Global Opportunities Partners L.P.
MatlinPatterson Global Opportunities Partners (Bermuda) L.P.
MatlinPatterson Global Advisers LLC
MatlinPatterson Global Partners LLC
MatlinPatterson Asset Management LLC
MatlinPatterson LLC
Mark R. Patterson
David J. Matlin
(Name of Persons Filing)
Robert Weiss
MatlinPatterson Global Advisers LLC
520 Madison Avenue
New York, New York 10022
Telephone: (212) 651-9525
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 5, 2003
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-l(e), 13d-l(f) or 13d-l(g), check the
following box [ ]
Note. Schedules filed in paper format shall include a signed
original and five copies of the Schedule, including all exhibits. See Rule
13d-7 for other parties to whom copies are to be sent. The information
required on this cover page shall not be deemed to be "filed" for the purpose
of Section 18 of the Securities Exchange Act of 1934 ("Exchange Act") or
otherwise subject to the liabilities of that section of the Exchange Act but
shall be subject to all other provisions of the Exchange Act (however, see the
Notes)
(Continued on following pages)
(Page 1 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 2 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MatlinPatterson Global Opportunities Partners L.P.
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
15,069,728
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
15,069,728
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
15,069,728
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.1%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- ---------------------------------------------------------------------------------------------
(Page 2 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 3 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MatlinPatterson Global Opportunities Partners (Bermuda) L.P.
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
5,251,080
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,251,080
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
5,251,080
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- ---------------------------------------------------------------------------------------------
(Page 3 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 4 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MatlinPatterson Global Advisers LLC
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
20,320,808
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
20,320,808
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,320,808
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
1A
- ---------------------------------------------------------------------------------------------
(Page 4 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 5 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
David J. Matlin
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
20,320,808
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
20,320,808
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,320,808
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ---------------------------------------------------------------------------------------------
(Page 5 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 6 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Mark R. Patterson
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
20,320,808
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
20,320,808
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,320,808
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ---------------------------------------------------------------------------------------------
(Page 6 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 7 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MatlinPatterson Global Partners LLC
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
20,320,808
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
20,320,808
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,320,808
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
- ---------------------------------------------------------------------------------------------
(Page 7 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 8 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MatlinPatterson Asset Management LLC
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES BENEFICIALLY OWNED 7 SOLE VOTING POWER
BY EACH REPORTING PERSON
WITH 0
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
20,320,808
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
20,320,808
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,320,808
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
- ---------------------------------------------------------------------------------------------
(Page 8 of 20)
SCHEDULE 13D
- ---------------------------------------------------------------------------------------------
CUSIP No. 629377508 Page 7 of 20 Pages
- ---------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MatlinPatterson LLC
- ---------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / X/
- ---------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF, WC
- ---------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------------------------------
SHARES 7 SOLE VOTING POWER
BENEFICIALLY
OWNED BY EACH 0
REPORTING
PERSON WITH
- ---------------------------------------------------------------------------------------------
8 SHARED VOTING POWER
20,320,808
- ---------------------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
- ---------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
20,320,808
- ---------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,320,808
- ---------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
- ---------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.3%
- ---------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
- ---------------------------------------------------------------------------------------------
(Page 9 of 20)
Introduction.
This Schedule 13D Statement (this "Statement") is filed on behalf of
(i) MatlinPatterson Global Opportunities Partners L.P., ("Matlin Partners
(Delaware)") a limited partnership organized under the laws of Delaware, and
MatlinPatterson Global Opportunities Partners (Bermuda) L.P. ("Matlin Partners
(Bermuda)" and collectively with Matlin Partners (Delaware), "Matlin
Partners"), an exempt limited partnership organized under the laws of Bermuda
(ii) MatlinPatterson Global Advisers LLC, ("Matlin Advisers") a limited
liability company organized under the laws of Delaware, by virtue of their
investment authority over securities held by Matlin Partners, (iii)
MatlinPatterson Global Partners LLC, ("Matlin Global Partners") a limited
liability company organized under the laws of Delaware, as general partner of
Matlin Partners, (iv) MatlinPatterson Asset Management LLC, ("Matlin Asset
Management") a limited liability company organized under the laws of Delaware,
as the holder of all of the membership interests in Matlin Global Partners and
Matlin Advisers, (v) MatlinPatterson LLC, ("MatlinPatterson") a limited
liability company organized under the laws of Delaware, as the holder of all
of the membership interests in Matlin Asset Management, (vi) and Mark
Patterson and David Matlin each as a holder of 50% of the membership interests
in MatlinPatterson (Matlin Partners (Delaware), Matlin Partners (Bermuda),
Matlin Advisers, Matlin Global Partners, Matlin Asset Management,
MatlinPatterson, Mark Patterson and David Matlin, collectively, the "Reporting
Persons" and each a "Reporting Person"), for the purpose of disclosing the
acquired beneficial ownership of the Reporting Persons in the Issuer (as
defined below) pursuant to the Debtor's Second Amended Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code, dated October 10,
2003, which was confirmed on November 25, 2003 and declared effective on
December 5, 2003 by the Bankruptcy Court (Case No. 03-13024 (PCB)) (the
"Plan").
Item 1. Security and Issuer
The name of the issuer is NRG Energy, Inc. (the "Issuer"). This
Statement relates to the Issuer's common stock, par value $0.01 per share (the
"Common Stock"). The principal executive offices of the Issuer are located at
901 Marquette Avenue, Suite 2300, Minneapolis, Minnesota 55402.
Item 2. Identity and Background
(i) Matlin Partners (Delaware) is a limited partnership organized
under the laws of Delaware. Matlin Partners (Delaware) generally invests in
equity and subordinated debt securities of companies. The address of Matlin
Partners (Delaware)'s principal business and principal office is c/o Matlin
Global Partners 520 Madison Avenue, New York, New York 10022.
(ii) Matlin Partners (Bermuda) is an exempt limited partnership
organized under the laws of Bermuda. Matlin Partners (Bermuda) generally
invests in equity and subordinated debt securities of companies. The address
of Matlin Partners (Bermuda)'s principal business and principal office is c/o
Quorum International Limited, Reid House, 31 Church Street, Hamilton, Bermuda.
(Page 10 of 20)
(iii) Matlin Global Partners is a limited liability company
organized under the laws of Delaware. Matlin Global Partners serves as General
Partner of Matlin Partners (Delaware) and Matlin Partners (Bermuda). The
address of Matlin Global Partners' principal business and principal office is
520 Madison Avenue, New York, New York 10022. The principal business of Matlin
Global Partners is acting as the general partner to Matlin Partners (Delaware)
and Matlin Partners (Bermuda).
(iv) Matlin Advisers is a limited liability company organized under
the laws of Delaware. Matlin Advisers serves as investment advisor to Matlin
Partners (Delaware) and Matlin Partners (Bermuda). The address of Matlin
Advisers' principal business and principal office is 520 Madison Avenue, New
York, New York 10022. Matlin Advisers performs certain investment advisory
services on behalf of Matlin Partners (Delaware) and Matlin Partners
(Bermuda), pursuant to a certain amended and restated Investment Advisory
Agreement dated as of July 17, 2002 among Matlin Advisers, Matlin Partners
(Delaware) and Matlin Partners (Bermuda).
(v) Matlin Asset Management is a limited liability company organized
under the laws of Delaware. Matlin Asset Management is the holder of all of
the membership interests in Matlin Global Partners and Matlin Advisers. The
address of Matlin Asset Management's principal business and principal office
is 520 Madison Avenue, New York, New York 10022. Matlin Asset Management's
principal business is owning Matlin Global Partners and Matlin Advisers.
(vi) MatlinPatterson is a limited liability company organized under
the laws of Delaware. MatlinPatterson is the holder of all of the membership
interests in Matlin Asset Management. The address of MatlinPatterson's
principal business and principal office is 520 Madison Avenue, New York, New
York 10022. MatlinPatterson's principal business is owning Matlin Asset
Management.
(vii) Mark R. Patterson and David J. Matlin are each the holder of
50% of the membership interests in MatlinPatterson. The address of Mark R.
Patterson and David J. Matlin's principal business office is 520 Madison
Avenue, New York, New York 10022. Mark R. Patterson's present principal
occupation is acting as Chairman of Matlin Advisers and David J. Matlin's
present principal occupation is acting as Chief Executive Officer of Matlin
Advisers. Mark R. Patterson and David J. Matlin are citizens of the United
States of America.
(viii) In the past five years, the Reporting Persons have not been
(a) convicted in a criminal proceeding (other than traffic violations or
similar misdemeanors) or (b) been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction in which it was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws nor has it been found to have violated such laws.
Item 3. Source and Amount of Funds or Other Consideration
The information set forth in Item 4 is hereby incorporated by
reference into this Item 3.
(Page 11 of 20)
On December 5, 2003, pursuant to the Plan, Matlin Partners
(Delaware) acquired beneficial ownership of approximately 15,069,728 shares of
Common Stock as part of the consideration for the cancellation of certain debt
instruments (and all pre-petition interest thereon and other amounts owing in
respect thereof) which had been acquired by Matlin Partners (Delaware) through
a series of trades at an aggregate cost of $231,132,813.10 as follows:
$118,687,931.00 principal amount 6.75% Senior Notes of the Issuer due July 15,
2006 and all pre-petition interest thereon acquired by Matlin Partners
(Delaware) at a total cost of $28,651,951.77; $75,048,266.00 principal amount
7.5% Senior Notes of the Issuer due June 1, 2009 and all pre-petition interest
thereon acquired by Matlin Partners (Delaware) at a total cost of
$18,659,235.88; $85,101,275.00 principal amount 7.5% Senior Notes of the
Issuer due June 15, 2007 and all pre-petition interest thereon acquired by
Matlin Partners (Delaware) at a total cost of $20,601,521.93; $16,463,319.00
principal amount 7.625% Senior Notes of the Issuer due February 1, 2006 and
all pre-petition interest thereon acquired by Matlin Partners (Delaware) at a
total cost of $3,897,207.43; $128,956,740.00 principal amount 7.75% Senior
Notes of the Issuer due April 1, 2011 and all pre-petition interest thereon
acquired by Matlin Partners (Delaware) at a total cost of $31,640,179.03;
$62,308,475.00 principal amount 8% Remarketable or Redeemable Securities of
the Issuer due November 1, 2013 with a remarketing date of November 1, 2003
and all pre-petition interest thereon acquired by Matlin Partners (Delaware)
at a total cost of $17,062,360.87; $123,389,618.00 principal amount 8.25%
Senior Notes of the Issuer due September 15, 2010 and all pre-petition
interest thereon acquired by Matlin Partners (Delaware) at a total cost of
$31,904,803.69; $211,664,902.00 principal amount 8.625% Senior Notes of the
Issuer due April 1, 2031 and all pre-petition interest thereon acquired by
Matlin Partners (Delaware) at a total cost of $52,598,125.53; and
$51,614,734.00 principal amount 8.7% Remarketable or Redeemable Securities of
the Issuer due March 15, 2005 and all pre-petition interest thereon acquired
by Matlin Partners (Delaware) at a total cost of $12,717,746.29. Cash and
notes make up the balance of the consideration for the cancellation of the
above referenced debt as described in Item 4 below.
On December 5, 2003, pursuant to the Plan, MatlinPartners (Bermuda)
acquired beneficial ownership of approximately 5,251,080 shares of Common
Stock as part of the consideration for the cancellation of certain debt
instruments (and all pre-petition interest thereon and other amounts owing in
respect thereof) which had been acquired by Matlin Partners (Bermuda) through
a series of trades at an aggregate cost of $80,538,735.34 as follows:
$41,357,069.00 principal amount 6.75% Senior Notes of the Issuer due July 15,
2006 and all pre-petition interest thereon acquired by Matlin Partners
(Bermuda) at a total cost of $9,983,835.34; $26,150,734.00 principal amount
7.5% Senior Notes of the Issuer due June 1, 2009 and all pre-petition interest
thereon acquired by Matlin Partners (Bermuda) at a total cost of
$6,501,852.04; $29,653,725.00 principal amount 7.5% Senior Notes of the Issuer
due June 15, 2007 and all pre-petition interest thereon acquired by Matlin
Partners (Bermuda) at a total cost of $7,178,645.38; $5,736,681.00 principal
amount 7.625% Senior Notes of the Issuer due February 1, 2006 and all
pre-petition interest thereon acquired by Matlin Partners (Bermuda) at a total
cost of $1,357,990.77; $44,935,260.00 principal amount 7.75% Senior Notes of
the Issuer due April 1, 2011 and all pre-petition interest thereon acquired by
Matlin Partners (Bermuda) at a total cost of $11,025,090.10; $21,711,525.00
principal amount 8% Remarketable or Redeemable Securities of the Issuer due
November 1, 2013 with a remarketing date of November 1, 2003 and all
pre-petition interest thereon acquired by Matlin Partners (Bermuda) at a total
cost of $5,945,417.14; $42,995,382.00 principal amount 8.25% Senior Notes of
the Issuer due September 15, 2010 and all pre-petition interest thereon
(Page 12 of 20)
acquired by Matlin Partners (Bermuda) at a total cost of $11,117,298.71;
$73,755,098.00 principal amount 8.625% Senior Notes of the Issuer due April 1,
2031 and all pre-petition interest thereon acquired by Matlin Partners
(Bermuda) at a total cost of $18,327,931.95; and $17,985,266.00 principal
amount 8.7% Remarketable or Redeemable Securities of the Issuer due March 15,
2005 and all pre-petition interest thereon acquired by Matlin Partners
(Bermuda) at a total cost of $4,431,526.25. Cash and notes make up the balance
of the consideration for the cancellation of the above referenced debt as
described in Item 4 below.
The Issuer has not yet issued the shares of Common Stock or the
notes nor distributed the cash amounts, to be issued and distributed to Matlin
Partners (Delaware) and Matlin Partners (Bermuda) as consideration for the
cancellation of the debt obligations of the Issuer as described in this Item 3
but will do so as soon as practicable.
The Reporting Persons paid cash from working capital for the
cancelled debt instruments. No funds were borrowed or otherwise obtained for
the purpose of acquiring, holding, trading or voting the Common Stock.
Item 4. Purpose of Transaction
Pursuant to the Plan, the Reporting Persons have received or will
receive, as soon as practicable and in accordance with the documents executed
in connection with the Plan, as consideration for the cancellation of debt
obligations acquired through open market purchases and having an approximate
principal amount of $1.2 billion approximately, (i) 20,320,808 shares of
Common Stock, (ii) notes of the reorganized Issuer for an aggregate principal
amount of $101,604,039 (unless substituted with cash as contemplated under the
Plan), and (iii) cash for an amount of $79,787,287 (or $181,391,326 in the
event cash is paid in lieu of the notes identified in (ii)), in each case,
subject to adjustments pursuant to the Plan's reallocation procedures and
treatment of disputed claims (each described below). The shares of Common
Stock to be acquired by the Reporting Persons pursuant to the Plan represent,
in the aggregate, approximately 20.3% of the shares of Common Stock of the
reorganized Issuer, subject to adjustments pursuant to the Plan's reallocation
procedures and treatment of disputed claims (each described below). Pursuant
to the reallocation procedures set forth in Article V of the Plan, each
creditor in Classes 5 and 6 was eligible to elect to contribute (i) all of
their shares of Common Stock in the reorganized Issuer at the standard rate of
$22.25 per share or at a lower price per share (ranging from $16.00 to $22.00
in 1/4 point intervals), and/or (ii) all or a portion (ranging from 0% to
100%) of the notes and cash to be distributed to such creditor under the Plan.
The reallocation is to be effectuated "dutch auction" style first by
exchanging those shares of Common Stock offered into the reallocation pool for
cash starting at the lowest price per share selected until all of the cash or
the shares of Common Stock in the reallocation pool is exhausted. Next, any
remaining shares of Common Stock would be exchanged for notes, again starting
at the lowest price per share selected until all of the notes or shares of
Common Stock are exhausted. The result is that the distribution to each
participating creditor, including the Reporting Persons, of Common Stock, cash
and notes may change after giving effect to the outcome of the reallocation
procedure.
The cash portion of the consideration is to be paid through a
combination of the reorganized Issuer's cash on hand and Xcel Energy Inc.'s
("Xcel") contribution of the "release-based" cash amount. The release-based
cash amount is to be paid out over time as it is received by the reorganized
Issuer from Xcel, pursuant to the terms of that certain Settlement Agreement
(Page 13 of 20)
with Xcel entered into as part of the Plan. The first and second installments
of $200 million in the aggregate is due to be paid by Xcel 90 days after the
date on which the Bankruptcy Court entered the order confirming the Issuer's
Plan. The third installment is to be paid on April 30, 2004, unless extended
pursuant to the terms of the Settlement Agreement. Under certain circumstances
specified under the Settlement Agreement, a portion of the Xcel contribution
described above can be made with shares of Xcel common stock (NYSE: XEL),
which, pursuant to Section 8.7 of the Plan, can be liquidated by the
reorganized Issuer and the proceeds thereof distributed to Class 5 creditors.
In addition, the Reporting Persons would be entitled to receive their pro rata
portion of up to an additional $150 million of cash that, subject to the
satisfaction of certain conditions, may be available for distribution under
the Plan.
Pursuant to Article X of the Plan, the Issuer and certain of its
affiliates shall establish a disputed claims reserve to be funded with the
appropriate number of shares, notes and cash for distribution to holders of
disputed claims that subsequently become allowed by the Bankruptcy Court.
Distributions from the disputed claims reserve will be made on a quarterly
basis to holders of disputed claims that have become allowed. The Reporting
Persons' percentage ownership may vary depending on whether the amount of
disputed claims ultimately allowed is greater or less than the amount
reserved.
On December 5, 2003 and in accordance with Section 8.2(b) of the
provisions of the Plan, three representatives of the Reporting Persons became
directors of the reorganized Issuer. Section 8.2(b) of the Plan provides, in
pertinent part, that the "board of directors for Reorganized NRG shall consist
of the post-reorganization CEO and ten (10) individuals, of which six (6)
directors shall be designated by the members of the Noteholder Group serving
on the Committee...", which includes the Reporting Persons. It is pursuant to
this provision of the Plan that the Reporting Persons obtained its three seats
on the reorganized Issuer's board of directors.
Mark R. Patterson, a holder of 50% of the membership interests of
MatlinPatterson, serves on the board of directors of the Issuer. As a director
of the Issuer, Mark R. Patterson may have influence over the corporate
activities of the Issuer, including activities which may relate to items
described in Items 4(a) - (j) of Schedule 13D.
Ramon Betolaza, an employee of Matlin Advisers, serves on the board
of directors of the Issuer. As a director of the Issuer, Ramon Betolaza may
have influence over the corporate activities of the Issuer, including
activities which may relate to items described in Items 4(a) - (j) of Schedule
13D.
Frank Plimpton, an employee of Matlin Advisers, serves on the board
of directors of the Issuer. As a director of the Issuer, Frank Plimpton may
have influence over the corporate activities of the Issuer, including
activities which may relate to items described in Items 4(a) - (j) of Schedule
13D.
The Reporting Persons acquired beneficial ownership of the shares of
Common Stock and the notes for investment purposes. The Reporting Persons may
from time to time (i) acquire additional Common Stock, notes or other
securities of the reorganized Issuer (subject to availability at prices deemed
favorable, the reorganized Issuer's business or financial condition and to
other factors and conditions the Reporting Persons deem appropriate) in the
open market, in privately negotiated transactions or otherwise, or (ii)
dispose of the shares of Common Stock,
(Page 14 of 20)
notes or any other securities of the reorganized Issuer that the Reporting
Persons may acquire, when prices are deemed favorable in the open market, in
privately negotiated transactions or otherwise, in each case subject to the
factors and conditions referred to above and compliance with applicable laws.
Except as set forth in this Item 4, none of the Reporting Persons has any
other plans which relate to or would result in any of the items listed in
paragraphs (a) through (j) of the instructions to Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
The information set forth in Item 3 is hereby incorporated by
reference into this Item 5.
(a) As of the date hereof, Matlin Partners (Delaware) and Matlin Partners
(Bermuda) are each a direct beneficial owner of approximately 15,069,728 and
approximately 5,251,080 shares of Common Stock, respectively, and
MatlinPatterson, Matlin Asset Management, Matlin Advisers, Matlin Global
Partners, Mark R. Patterson and David J. Matlin are each an indirect
beneficial owner of approximately 20,320,808 shares of Common Stock. The
approximately 20,320,808 shares of Common Stock represent approximately 20.3%
of the Issuer's issued and outstanding shares of Common Stock. The
approximately 15,069,728 shares of Common Stock and approximately 5,251,080
shares of Common Stock, when issued, will represent approximately 15.1% and
5.3% of the Issuer's issued and outstanding shares of Common Stock,
respectively.
(i) Matlin Global Partners serves as General Partner of Matlin
Partners (Delaware) and Matlin Partners (Bermuda). By reason of such
relationships, Matlin Global Partners may be deemed to beneficially own share
the shares beneficially owned by Matlin Partners.
(ii) Matlin Advisers serves as investment advisor to Matlin
Partners. By reason of such relationships, Matlin Advisers may be deemed to
beneficially own the shares beneficially owned by Matlin Partners.
(iii) Matlin Asset Management is the holder of all of the membership
interests in Matlin Global Partners and Matlin Advisers. By reason of such
relationships, Matlin Asset Management may be deemed to beneficially own the
shares beneficially owned by Matlin Partners.
(iv) MatlinPatterson is the holder of all of the membership
interests in Matlin Asset Management. By reason of such relationship,
MatlinPatterson may be deemed to beneficially own the shares beneficially
owned by Matlin Partners.
(v) Mark R. Patterson and David J. Matlin are the holders of all of
the membership interests in MatlinPatterson. By reason of such relationships,
each of Mark Patterson and David Matlin may be deemed to share voting and
dispositive power over the shares beneficially owned by Matlin Partners.
(b) Matlin Partners (Delaware) and Matlin Partners (Bermuda) have
shared power to vote and shared dispositive power of 15,069,728 shares of
Common Stock and 5,251,080 shares of Common Stock, respectively.
MatlinPatterson, Matlin Asset Management, Matlin Advisers,
(Page 15 of 20)
Matlin Global Partners, Mark R. Patterson and David J. Matlin each have shared
power to vote and shared dispositive power of 20,320,808 shares of Common
Stock.
(c) Except as reported in this Statement, none of the Reporting
Persons has effected any transaction in the Common Stock during the past 60
days.
(d) To the best knowledge of MatlinPatterson, Matlin Asset
Management, Matlin Advisers and Matlin Global Partners with respect to the
directors and executive officers named in this Statement, none of the persons
(i) beneficially owns any shares of Common Stock (other than in his or her
capacity as a controlling member, executive officer or director of such
corporation or limited liability company) or (ii) has the right to acquire any
Common Stock owned by other parties.
(e) The filing of this Statement shall not be construed as an
admission by any of the Reporting Persons that it is, for purposes of Section
13(d) of the Exchange Act, the beneficial owner of shares of Common Stock
owned by other parties.
(f) Except as reported in this Statement, no other person is known
to any of the Reporting Persons to have the right to receive or the power to
direct the receipt of dividends from, or proceeds from the sale of, any shares
of the Common Stock held by the Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer
Pursuant to a Registration Rights Agreement (the "Common Stock
Registration Rights Agreement") dated as of December 5, 2003, to be entered
into among the Issuer, Matlin Partners (Delaware), Matlin Partners (Bermuda)
and the other parties thereto the date on which the shares of Common Stock
will be issued to the parties thereto, Matlin Partners (Delaware) and Matlin
Partners (Bermuda) will have the right, on the terms and conditions set forth
therein, to require the Issuer to register for sale to the public their shares
of Common Stock. Reference is made to the Form of Common Stock Registration
Rights Agreement filed as Exhibit 3 hereto, which is incorporated herein by
reference.
Pursuant to a Registration Rights Agreement (the "Notes Registration
Rights Agreement") dated as of December 5, 2003, to be entered into, to the
extent the Reporting Persons receive notes, among the Issuer, Matlin Partners
(Delaware) and Matlin Partners (Bermuda) the date on which the notes will be
issued to the parties thereto, Matlin Partners (Delaware) and Matlin Partners
(Bermuda) will have been granted certain shelf registration rights, on the
terms and conditions set forth therein, with respect to their notes. Reference
is made to the Form of Notes Registration Rights Agreement filed as Exhibit 4
hereto, which is incorporated herein by reference.
Except as described elsewhere in this Statement and as set forth in
the Common Stock Registration Rights Agreement and the Notes Registration
Rights Agreement, to the best knowledge of the Reporting Persons, there exist
no contracts, arrangements, understandings or relationships (legal or
otherwise) among the persons named in Item 2 and between such persons
(Page 16 of 20)
and any person with respect to any securities of the Issuer, including but not
limited to transfer or voting of any securities of the Issuer, finder's fees,
joint ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits
Exhibit No. Description
1 Joint Filing Agreement dated as of December 15,
2003, by and among MatlinPatterson LLC,
MatlinPatterson Asset Management LLC,
MatlinPatterson Global Advisers LLC, MatlinPatterson
Global Partners LLC, MatlinPatterson Global
Opportunities Partners L.P., MatlinPatterson Global
Opportunities Partners (Bermuda) L.P., David J.
Matlin and Mark R. Patterson.
2(a) Debtor's Second Amended Joint Plan of Reorganization
of NRG Energy, Inc. and its affiliates under Chapter
11 of the Bankruptcy Code, dated October 10, 2003.
3 Form of Common Stock Registration Rights Agreement
dated as of December 5, 2003 to be entered into
among NRG Energy, Inc. and the holders named
therein.
4 Form of Notes Registration Rights Agreement dated as
of December 5, 2003 to be entered into among NRG
Energy, Inc. and the holders named therein.
- ------------------------
(a) Incorporated by reference from Exhibit 99.1 to the Form 8-K filed on
November 19, 2003 by NRG Energy, Inc.
(Page 17 of 20)
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this Statement is true,
complete and correct.
Dated: December 15, 2003
MATLINPATTERSON LLC
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
Title: Member
MATLINPATTERSON ASSET MANAGEMENT LLC
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
Title: Chairman
MATLINPATTERSON GLOBAL ADVISERS LLC
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
Title: Chairman
MATLINPATTERSON GLOBAL PARTNERS LLC
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
Title: Director
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS L.P.
By: MatlinPatterson Global Partners LLC
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
Title: Director
(Page 18 of 20)
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS (BERMUDA) L.P.
By: MatlinPatterson Global Partners LLC
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
Title: Director
DAVID J. MATLIN
By: /s/ David J. Matlin
------------------------------------------------------
Name: David J. Matlin
MARK R. PATTERSON
By: /s/ Mark R. Patterson
------------------------------------------------------
Name: Mark R. Patterson
(Page 19 of 20)
EXHIBIT INDEX
Exhibit No. Description
1 Joint Filing Agreement dated as of December 15,
2003, by and among MatlinPatterson LLC,
MatlinPatterson Asset Management LLC,
MatlinPatterson Global Advisers LLC, MatlinPatterson
Global Partners LLC, MatlinPatterson Global
Opportunities Partners L.P., MatlinPatterson Global
Opportunities Partners (Bermuda) L.P., David J.
Matlin and Mark R. Patterson.
2(a) Debtor's Second Amended Joint Plan of Reorganization
of NRG Energy, Inc. and its affiliates under Chapter
11 of the Bankruptcy Code, dated October 10, 2003.
3 Form of Common Stock Registration Rights Agreement
dated as of December 5, 2003 to be entered into
among NRG Energy, Inc. and the holders named
therein.
4 Form of Notes Registration Rights Agreement dated as
of December 5, 2003 to be entered into among NRG
Energy, Inc. and the holders named therein.
- -----------------
(a) Incorporated by reference from Exhibit 99.1 to the Form 8-K filed on
November 19, 2003 by NRG Energy, Inc.
(Page 20 of 20
Exhibit 1
JOINT FILING AGREEMENT
Dated as of December 15, 2003
In accordance with Rule 13d-1(k)(1) under the Securities Exchange
Act of 1934, as amended, the undersigned hereby agree to the joint filing of
MatlinPatterson LLC, MatlinPatterson Asset Management LLC, MatlinPatterson
Global Advisers LLC, MatlinPatterson Global Partners LLC, MatlinPatterson
Global Opportunities Partners L.P., MatlinPatterson Global Opportunities
Partners (Bermuda) L.P., David J. Matlin and Mark R. Patterson, on behalf of
each of them a statement on Schedule 13D (including amendments thereto) with
respect to shares of common stock, par value $0.01 per share, of NRG Energy,
Inc., and that this Agreement be included as an Exhibit to such joint filing.
This Agreement may be executed in any number of counterparts all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement
this 15th day of December 2003.
MATLINPATTERSON LLC
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
Title: Member
MATLINPATTERSON ASSET MANAGEMENT LLC
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
Title: Chairman
MATLINPATTERSON GLOBAL ADVISERS LLC
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
Title: Chairman
(Page 1 pf 2)
MATLINPATTERSON GLOBAL PARTNERS LLC
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
Title: Director
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS L.P.
By: MatlinPatterson Global Partners LLC
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
Title: Director
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS
(BERMUDA) L.P.
By: MatlinPatterson Global Partners LLC
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
Title: Director
DAVID J. MATLIN
By: /s/ David J. Matlin
----------------------------------------------------
Name: David J. Matlin
MARK R. PATTERSON
By: /s/ Mark R. Patterson
----------------------------------------------------
Name: Mark R. Patterson
(Page 2 of 2)
Exhibit 3
Execution Copy
- ------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
by and among
NRG ENERGY, INC.
and
THE HOLDERS NAMED HEREIN
---------------------------------------------------------
Dated as of December 5, 2003
---------------------------------------------------------
- ------------------------------------------------------------------------------
Table of Contents
Page
1. Definitions............................................................1
2. Securities Act Registration............................................4
(a) Shelf Registration............................................4
(b) Registration of Other Securities..............................4
(c) Registration Statement Form...................................4
(d) Effective Registration Statement..............................5
3. Expenses...............................................................5
4. Registration Procedures................................................5
5. Preparation; Confidentiality...........................................9
6. Postponements.........................................................10
7. Indemnification.......................................................11
(a) Indemnification by the Company...............................11
(b) Indemnification by the Offerors and Sellers..................11
(c) Notices of Losses, etc.......................................12
(d) Contribution.................................................13
(e) Other Indemnification........................................13
(f) Indemnification Payments.....................................13
8. Rule 144 and Rule 144A................................................13
9. Amendments and Waivers................................................13
10. Nominees for Beneficial Owners........................................14
11. Assignment............................................................14
12. Calculation of Percentage of Principal Amount of Registrable Notes....14
13. Termination of Registration Rights....................................14
14. Notice of Ownership Below 1%.........................................14
15. Miscellaneous.........................................................15
i
(a) Further Assurances...........................................15
(b) Headings.....................................................15
(c) Conflicting Instructions.....................................15
(d) Remedies.....................................................15
(e) Entire Agreement.............................................15
(f) Notices......................................................15
(g) Governing Law................................................16
(h) Severability.................................................16
(i) Counterparts.................................................16
SCHEDULES:
SCHEDULE A - JOINDER AGREEMENT
ii
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of [______], 2003 (this
"Agreement"), by and among NRG Energy, Inc., a Delaware corporation (the
"Company"), and the Holders (as hereinafter defined) of Registrable Notes (as
hereinafter defined) who are signatories to this Agreement or a Joinder
Agreement (as hereinafter defined).
This Agreement is being entered into in connection with the receipt
of Notes (as hereinafter defined) on or after the Effective Date (as
hereinafter defined) by certain Holders pursuant to the Plan (as hereinafter
defined). Upon the issuance of the Notes, each Holder will own Notes in the
aggregate principal amount specified with respect to such Holder on the
signature pages hereto.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein
and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such other Person. For purposes of this
definition, "control" means the ability of one Person to direct the management
and policies of another Person. For purposes of this Agreement, each of
MatlinPatterson Global Opportunities Partners, L.P. and MatlinPatterson Global
Opportunities Partners (Bermuda), L.P. shall be an Affiliate of the other. In
addition, with respect to each of MatlinPatterson Global Opportunities
Partners, L.P. and MatlinPatterson Global Opportunities Partners (Bermuda),
L.P., the term "Affiliate" shall also include its general partner, investment
manager, any entity with the same general partner or investment manager as
MatlinPatterson Global Opportunities Partners, L.P or MatlinPatterson Global
Opportunities Partners (Bermuda), L.P. (as the case may be), and any Person
under the direct or indirect control of MatlinPatterson Global Partners LLC or
MatlinPatterson Global Advisers LLC and the general partner(s) and investment
manager(s) of any such Person, if any.
"Agreement" has the meaning set forth in the preamble hereof.
"Bankruptcy Code" means Title 11 of the United States Code.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City or Minneapolis are authorized or
required by law to be closed.
"Commission" means the U.S. Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereof.
"Company Indemnitee" has the meaning set forth in Section 7(a)
hereof.
"Confidential Material" means all notices delivered by the Company
under this Agreement and any and all other information, in any form or medium,
written or oral, concerning or relating to the Company (whether prepared by
the Company, its Representatives (as hereinafter defined) or otherwise),
irrespective of the form or means of communication, which is labeled or
otherwise identified as confidential and is furnished to a Holder of
Registrable Notes or its Representative by or on behalf of the Company,
including without limitation all such oral and written information relating to
financial statements, projections, evaluations, plans, programs, customers,
suppliers, facilities, equipment and other assets, products, processes,
marketing, research and development, trade secrets, know-how, patent
applications that that have not been published, technology and other
confidential information and intellectual property of the Company. During (i)
the period beginning on the date hereof and ending on the date that the
registration referred to therein either becomes effective or is abandoned and
(ii) any period during which the Company defers or suspends the use of any
registration statement referred to herein as provided by Section 6 hereto, all
information provided to the Holders of Registrable Notes under this Agreement
shall be deemed to be Confidential Material, whether or not labeled or
otherwise identified as Confidential Information. "Confidential Material"
shall not include information that: (a) is or becomes available to the public
generally, other than as a result of disclosure by the relevant Holder or one
of the Representatives of such Holder in breach of the terms of this
Agreement, or (b) becomes available to the relevant Holder from a source other
than the Company or one of the Representatives of such Holder, including
without limitation prior to the date hereof, provided that, the Holder
reasonably believes that such source is not bound by a confidentiality
agreement with or does not have a contractual, legal or fiduciary obligation
of confidentiality to the Company or any other person with respect to such
information.
"Effective Date" means the effective date of the Plan pursuant to
the terms thereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Expenses" means all expenses incident to the Company's performance
of or compliance with its obligations under this Agreement, including, without
limitation, all registration and filing fees, listing, stock exchange and NASD
fees (but only if the Company lists the Notes and agrees to pay such fees for
holders of Notes other than the Holders), all fees and expenses of complying
with state securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger, telephone and delivery expenses, all rating
agency fees, the fees, disbursements and other charges of counsel for the
Company and of its independent public accountants, including the expenses
incurred in connection with any special audits required by or incident to such
performance and compliance, the fees and expenses incurred in connection with
the listing of the securities to be registered on each securities exchange or
national market system if required pursuant to Section 4(k) (but only if the
Company lists the Notes and agrees to pay such fees for holders of Notes other
than the Holders), the reasonable fees and disbursements of one law firm (per
registration statement prepared) representing the Holders (selected by the
Holders holding at least 50.1% of the aggregate principal amount of
Registrable Notes then
2
outstanding covered by such registration), the fees and expenses of any
special experts retained by the Company in connection with such registration,
and the fees and expenses of other Persons retained by the Company, but
excluding applicable transfer taxes, if any, which discounts, commissions and
transfer taxes shall be borne by the Holders in all cases; provided that, in
any case where Expenses are not to be borne by the Company, such Expenses
shall not include salaries of Company personnel or general overhead expenses
of the Company, auditing fees, premiums or other expenses relating to
liability insurance or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the ordinary
course of its business or which the Company would have incurred in any event.
"Holder" means each of the signatory to this Agreement.
"Holder Indemnitee" has the meaning set forth in Section 7(b)
hereof.
"Indenture" means the Indenture, dated as of ______ entered into
between the Company and the Trustee, regarding the issuance of Notes for an
aggregate principal amount of $500,000,000.
"Loss" and "Losses" have the meanings set forth in Section 7(a)
hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"Notes" means the aggregate principal amount of 10.0% Senior Note
due 2010 of the Company.
"Offering Documents" has the meaning set forth in Section 7(a)
hereof.
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint stock company,
trust, unincorporated organization, governmental or regulatory body or
subdivision thereof or other entity.
"Plan" means the Plan of Reorganization under Chapter 11 of the
Bankruptcy Code for the Company and certain of its domestic subsidiaries, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Public Offering" means a public offering and sale of Notes pursuant
to an effective registration statement (other than a registration statement on
Form S-4 or Form S-8 or any successor or similar forms) under the Securities
Act.
"Registrable Notes" means , at any time, the Notes owned by the
Holders from time to time; provided, however, that the Notes will cease to be
Registrable Notes upon the earlier of (a) a registration statement covering
such Registrable Notes has been declared effective and such Registrable Notes
has been sold pursuant to such effective registration statement, (b) such
Registrable Notes become eligible for sale under Rule 144(k) without any
volume, manner of sale or other restrictions, or (c) such Registrable Notes
shall have ceased to be outstanding.
"Representative" has the meaning set forth in Section 5(b) hereof.
3
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar or successor statute.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Transfer" means any transfer, sale, assignment, pledge,
hypothecation or other disposition of any interest. "Transferor" and
"Transferee" have correlative meanings.
"Trustee" means Wilmington Trust Company and any successor thereof
acting as Trustee under the Indenture.
In this Agreement, all references to "ownership" of Notes or
Registrable Notes shall be deemed to mean the beneficial ownership of Notes or
Registrable Notes, unless otherwise specified.
2. Securities Act Registration.
(a) Shelf Registration. The Company shall prepare and file or cause
to be prepared and filed with the Commission under the Securities Act a
registration statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by Holders thereof of all
of the Registrable Notes. The Company shall use its reasonable best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act as soon as practicable (but in no event later than ten (10)
days) after the Company becomes eligible to use registration statements on
Form S-3 in accordance with the applicable securities laws and regulations
(the "Effectiveness Deadline Date"), provided that the Effectiveness Deadline
Date shall, in no event, be later than May 1, 2004 if the Commission does not
review or comment on the Shelf Registration Statement; provided further that,
if the Commission reviews and has comments on the Shelf Registration
Statement, the Effectiveness Deadline Date shall be extended until the date
that is five (5) days after the Company becomes aware that the Commission has
no further comments on the Shelf Registration Statement. The Company shall use
its reasonable best efforts to become (i) eligible to use registration
statements on Form S-3 in accordance with applicable laws and regulations as
expeditiously as possible after the Effective Date, (ii) to communicate and
respond as diligently and expeditiously as possible to any comments made by
the Commission on the Shelf Registration Statement, and (iii) cause the Shelf
Registration Statement to be declared effective as soon as practicable after
the date that such Shelf Registration Statement is filed with the Commission.
(b) Registration of Other Securities. When the Company shall effect
a registration pursuant to Section 2(a) hereof, no securities other than the
Registrable Notes shall be included among the securities covered by such
registration.
(c) Registration Statement Form. Registrations under Section 2(a)
hereof shall be on such appropriate registration form prescribed by the
Commission under the Securities Act as
4
shall be selected by the Company, provided that the registration form (i)
shall be available for the sale of the Registrable Notes to be registered
thereunder, (ii) shall be suitable for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act registering the
resale from time to time by Holders hereof of all the Registrable Notes, and
(ii) shall permit the registration of such Registrable Notes for resale by
such Holders in accordance with the methods of distribution elected by the
Holders, which shall be set forth in the Shelf Registration Statement. The
Company agrees to include in any such registration statement filed pursuant to
Section 2(a) hereof all information which counsel for the Holders holding at
least 50.1% of the aggregate principal amount of Registrable Notes then
outstanding covered by such registration effected pursuant hereto shall advise
is legally required to be included.
(d) Effective Registration Statement. A registration pursuant to
Section 2(a) hereof shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has been
declared effective by the Commission on or before the
Effectiveness Deadline Date and remains continuously effective
in compliance with the provisions of the Securities Act and the
laws of any state or other jurisdiction applicable to the
disposition of Registrable Notes covered by such registration
statement until such time as the Company's obligations under
Section 2(a) hereof terminate in accordance with Section 13
hereof, subject to the right of the Company under Section 6; or
(ii) if, after it has become effective and prior to the termination
of the Company's obligations under Section 2(a) hereof in
accordance with Section 13 hereof, such registration is
interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental or
regulatory agency or court for any reason other than a
violation of applicable law solely by any Holder and has not
thereafter become effective.
3. Expenses. Except as otherwise provided in the final paragraph of Section 4,
the Company shall pay all Expenses in connection with any registration
pursuant to Sections 2(a) hereof, whether or not such registration shall
become effective.
4. Registration Procedures. To effect a registration under the Securities Act
as provided in Sections 2(a) hereof, the Company shall, as expeditiously as
possible:
(a) (A) prepare and file with the Commission the requisite
registration statement to effect such registration, (B)
thereafter cause such registration statement to become
effective before the Effectiveness Deadline Date and remain
continuously effective in accordance with the provisions of
Section 2(d)(i), and (C) as promptly as reasonably practicable
give notice to the Holders, in writing when a registration
statement, or any post-effective amendment to a registration
statement has been declared effective;
5
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the
provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Notes covered by
such registration statement until such time as all of such
Registrable Notes has been disposed of in accordance with the
method of disposition set forth in such registration statement
or there ceases to be any Registrable Notes;
(c) furnish to each Holder such number of copies of such drafts and
final conformed versions of such registration statement and of
each such amendment and supplement thereto (in each case
including all exhibits and any documents incorporated by
reference), such number of copies of such drafts and final
versions of the prospectus contained in such registration
statement (including each preliminary prospectus and any
summary prospectus), if any, and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents,
as the Holders may reasonably request in writing;
(d) use its reasonable best efforts (i) to register or qualify all
Registrable Notes covered by such registration statement under
such other securities or blue sky laws of such states or other
jurisdictions of the United States of America as the Holders
shall reasonably request in writing, (ii) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any
other action that may be necessary or reasonably advisable to
enable such Holders to consummate the disposition in such
jurisdictions of the Registrable Notes to be sold by such
Holders, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for
the requirements of this Section 4(d) be obligated to be so
qualified, to subject itself to taxation in such jurisdiction
or to consent to general service of process in any such
jurisdiction;
(e) use its reasonable best efforts to cause all Registrable Notes
covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies
or authorities as may be necessary in the opinion of counsel to
the Company and counsel to the Holder or Holders to enable the
Holder or Holders thereof to consummate the disposition of such
Registrable Notes;
(f) notify each Holder promptly, and confirm such advice promptly
in writing thereafter (i) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has been
filed and, with respect to the registration statement and any
post-effective amendment, when the same has become effective;
(ii) of any request by the Commission for amendments or
supplements to the registration statement or prospectus or for
additional information; (iii) of the issuance by the
6
Commission of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings
by any Person for that purpose; and (iv) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of any Registrable Notes for sale under the
securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(g) promptly notify each Holder if any, at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening
of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made and, at the written
request of any such Holder, promptly prepare and furnish to it
a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus, as supplemented or amended, shall not include 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 in the light of the
circumstances under which they were made;
(h) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement
relating to the Registrable Notes at the earliest possible
moment;
(i) otherwise comply with all applicable rules and regulations of
the Commission and any other governmental agency or authority
having jurisdiction over the offering, and make available to
its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve
months, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, furnish to each Holder at least 10 days prior to
the filing thereof a copy of any amendment or supplement to
such registration statement or prospectus, and not file any
amendment or supplement thereof which does not comply in all
material respects with the requirements of the Securities Act
or the rules and regulations thereunder;
(j) if any Notes are listed or quoted on a securities exchange or
inter-dealer quotation system, use its reasonable best efforts
to cause all such Registrable Notes covered by a registration
statement to be listed or quoted on each such securities
exchange or inter-dealer automated quotation system;
(k) provide and maintain a transfer agent and registrar (which
transfer agent and registrar may be the Trustee) for the
Registrable Notes covered by a registration statement from and
after a date no later than the effective date thereof;
7
(l) if requested by the Holders holding at least 50.1% of the
aggregate principal amount of Registrable Notes being sold,
promptly incorporate in a prospectus supplement or
post-effective amendment such information the Holders of at
least 50.1% of the aggregate principal amount of the
Registrable Notes being sold, as the case may be, agree should
be included therein relating to the plan of distribution with
respect to such Registrable Notes; and make all required
filings of such prospectus supplement or post-effective
amendment within five Business Days after being notified in
writing of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(m) if requested by the Holders holding at least 50.1% of the
aggregate principal amount of Registrable Notes being sold,
cooperate with the such Holders, to facilitate the timely
preparation and delivery of certificates representing the
Registrable Notes to be sold and cause such Registrable Notes
to be in such denominations as are permitted by the Indenture
and registered in such names as such Holders may request in
writing at least five Business Days prior to the sale of such
Registrable Notes;
(n) provide a CUSIP number for all Registrable Notes covered by the
registration statement not later than the effective date of
such registration statement and provide the Trustee for the
Notes with certificates for the Registrable Notes that are in a
form eligible for deposit with The Depository Trust Company or
its nominee or custodian; and
(o) cause the Indenture to remain qualified under the TIA and in
connection therewith, cooperate with the Trustee 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
execute, and use reasonable 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 Commission to enable the Indenture to be qualified in
a timely manner.
As a condition to the obligations of the Company to complete any
registration pursuant to this Agreement with respect to the Registrable Notes
of a Holder, such Holder must furnish to the Company in writing such
information regarding itself and the Registrable Notes held by it as is
necessary to effect the registration of such Holder's Registrable Notes and is
requested in writing by the Company. At least 30 days prior to the first
anticipated filing date of a registration statement for any registration under
this Agreement, the Company will notify in writing each Holder of the
information referred to in the preceding sentence which the Company is
requesting from that Holder whether or not such Holder has elected to have any
of its Registrable Notes included in the registration statement. If, within 10
days prior to the anticipated filing date, the Company has not received the
requested information from a Holder, then the Company may file the
registration statement without including Registrable Notes of that Holder.
Each Holder agrees that as of the date that a final prospectus is
made available to it for distribution to prospective purchasers of its
Registrable Notes it shall cease to distribute
8
copies of any preliminary prospectus prepared in connection with the offer and
sale of such Registrable Notes. Each Holder further agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 4(g), such Holder shall forthwith discontinue such
Holder's disposition of Registrable Notes pursuant to the registration
statement relating to such Registrable Notes until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
4(g) and, if so directed by the Company, shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus relating to such Registrable Notes
current at the time of receipt of such notice. If any event of the kind
described in Section 4(g) occurs and such event is the fault solely of a
Holder (or Holders), such Holder (or such Holders) shall pay all Expenses
attributable to the preparation, filing and delivery of any supplemented or
amended prospectus contemplated by Section 4(g).
5. Preparation; Confidentiality.
(a) Preparation. In connection with the preparation and filing of
the registration statement under the Securities Act pursuant to
this Agreement, the Company shall (i) give representatives
(designated to the Company in writing) of each Holder or group
of Holders holding at least 20% of the aggregate principal
amount of Registrable Notes to be registered under such
registration statement and one firm of counsel retained on
behalf of Holders holding at least 50.1% of the aggregate
principal amount of Registrable Notes then outstanding covered
by such registration statement, the reasonable opportunity to
participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission,
and each amendment thereof or supplement thereto, (ii) upon
reasonable advance notice to the Company, give each of them
such reasonable access to all financial and other records,
corporate documents and properties of the Company and its
subsidiaries, as shall be necessary, in the reasonable opinion
of such Holders' counsel, to conduct a reasonable due diligence
investigation for purposes of the Securities Act, and (iii)
upon reasonable advance notice to the Company, provide such
reasonable opportunities to discuss the business of the Company
with its officers, directors, employees and the independent
public accountants who have certified its financial statements
as shall be necessary, in the reasonable opinion of such
Holders' counsel, to conduct a reasonable due diligence
investigation for purposes of the Securities Act.
(b) Confidentiality.
(i) Each Holder of Registrable Notes shall and shall cause its
directors, officers, partners, managers, members,
employees, advisors, agents and other representatives,
including without limitation attorneys, accountants,
consultants and financial advisors (collectively,
"Representatives") to maintain the confidentiality of and
not to disclose any Confidential Material; provided,
however, that a Holder may disclose Confidential Material
(A) to such of its Representatives who need such
information in connection with such Holder's investment in
securities of the Company, or
9
(B) to the extent required by applicable law, regulation,
legal process or court order.
(ii) Notwithstanding the foregoing, a Holder or its
Representative may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated hereunder and
all materials of any kind (including opinions or other tax
analyses) that are provided to such Holder or such
Representative relating to such tax treatment and tax
structure, except to the extent necessary to comply with
any applicable federal or state securities laws. This
authorization is not intended to permit disclosure of any
other information, including, without limitation, (A) any
portion of any materials to the extent not related to the
tax treatment or tax structure of the transactions
contemplated hereunder, (B) the identities of participants
or potential participants in the transactions contemplated
hereunder, (C) the existence or status of any
negotiations, (D) any pricing or financial information
(except to the extent such pricing or financial
information is related to the tax treatment or tax
structure of the transactions contemplated hereunder), or
(E) any other term or detail not relevant to the tax
treatment or the tax structure of the transactions
contemplated hereunder. Each Holder agrees not to
(directly or indirectly) trade in the Company's securities
in violation of the applicable federal and state
securities laws and regulations. Each Holder shall not
grant access, and the Company shall not be required to
grant access, to Confidential Material under this Section
5 to any Representative who will not agree to maintain the
confidentiality (to the same extent a Holder is
required to maintain confidentiality) of any Confidential
Material received from or otherwise made available to it
by the Company or the Holders under this Agreement.
(iii) Each Holder shall be bound by this Section 5(b) and shall
remain bound until the earlier of (A) the first
anniversary of the date on which the registration
statement is no longer in effect, and (B) the first date
on which the Confidential Material received by such Holder
ceases to be Confidential Material.
6. Postponements. The Company shall not be obligated to file any registration
statement, or file any amendment or supplement to any registration statement,
and may suspend any Holder's rights to make sales pursuant to any effective
registration statement, at any time when the Company, in the good faith and
reasonably informed judgment of its Board of Directors, determines that the
filing thereof at the time requested, or the offering of securities pursuant
thereto, would adversely affect a pending or proposed Public Offering of the
Company's securities, a material financing, or a material acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction, or
negotiations, discussions or pending proposals with respect thereto. The
Company shall promptly give the Holders written notice that such determination
has been made by the Board of Directors and (if known) an estimate of the
anticipated duration of the delay. The filing of a registration statement, or
any amendment or supplement thereto, by the Company cannot be deferred, and
any Holder's rights to make sales
10
pursuant to an effective registration statement cannot be suspended, pursuant
to the provisions of this Section 6 for more than 15 days after the
abandonment or consummation of any of the foregoing proposals or transactions.
The Company may so defer or suspend the use of any registration statement on
not more than three occasions in a calendar year and for no more than a total
of 120 days in a calendar year; provided that, after deferring or suspending
the use of any registration statement, the Company may not again defer or
suspend the use of the registration statement until a period of 30 days has
elapsed after resumption of the use of the registration statement. The Company
shall promptly notify each Holder of the expiration or earlier termination of
such deferral or suspension period. If the Company suspends any Holder's
rights to make sales pursuant hereto, the applicable registration period shall
be extended by the number of days of such suspension.
7. Indemnification.
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to Sections 2(a) hereof,
the Company agrees to indemnify and hold harmless to the fullest extent
permitted by law each Holder, each other Person, if any, who controls such
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and their respective stockholders, directors, officers,
employees, partners, agents and Affiliates (each, a "Company Indemnitee" for
purposes of this Section 7(a)), against any losses, claims, damages,
liabilities, joint or several, actions or proceedings, whether commenced or
threatened, in respect thereof and whether or not such Company Indemnitee is a
party thereto, and expenses, including, without limitation, the reasonable
fees, disbursements and other charges of legal counsel and reasonable costs of
investigation and defense, to which such Company Indemnitee may become subject
under the Securities Act or otherwise (collectively, a "Loss" or "Losses"),
insofar as such Losses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered or otherwise offered or
sold under the Securities Act or otherwise, any preliminary prospectus, final
prospectus or summary prospectus related thereto, any amendment or supplement
thereto, any exhibits to the registration statement or documents or other
information incorporated by reference into such registration statement or
prospectus (collectively, the "Offering Documents"), or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of the
circumstances in which they were made not misleading, or any violation by the
Company of any federal or state law, rule or regulation applicable to the
Company and relating to action required of or inaction by the Company in
connection with any such registration; provided, however, the Company shall
not be liable to any Company Indemnitee in any such case to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such Offering
Documents in reliance upon and in conformity with information furnished by
such Company Indemnitee to the Company in a writing duly executed by such
Company Indemnitee specifically stating that it is expressly for use therein.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnitee and shall
survive the transfer of such securities by such Company Indemnitee.
(b) Indemnification by the Offerors and Sellers. In connection with
any registration statement filed by the Company pursuant to Sections 2(a)
hereof in which a Holder has
11
registered for sale Registrable Notes, each such Holder, severally and not
jointly, agrees to indemnify and hold harmless to the fullest extent permitted
by law the Company and each of its directors, officers, employees, agents,
partners, stockholders, Affiliates and each other Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each other seller and such seller's directors,
officers, employees, agents, partners, stockholders, Affiliates and each other
Person, if any, who controls the seller within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (each, a "Holder
Indemnitee" for purposes of this Section 7(b)), against all Losses insofar as
such Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Offering Documents or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of
circumstances in which they were made not misleading, if such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished by such Holder to
the Company in writing duly executed by such Holder specifically stating that
it is expressly for use therein; provided, however, that the liability of such
indemnifying party under this Section 7(b) shall be limited to the amount of
the net proceeds received by such indemnifying party in the sale of
Registrable Notes giving rise to such liability. Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Holder Indemnitee and shall survive the transfer of such securities by
such indemnifying party.
(c) Notices of Losses, etc. Promptly after receipt by an indemnified
party of written notice of the commencement of any action or proceeding
involving a Loss referred to in Sections 7(a) and (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided, however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under Sections 7(a) and (b), except to the extent that the indemnifying party
is materially and actually prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such Loss, to assume and
control the defense thereof, in each case at its own expense, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after its
assumption of the defense thereof, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of
the defense thereof. No indemnifying party shall be liable for any settlement
of any such action or proceeding effected without its written consent, which
shall not be unreasonably withheld. No indemnifying party shall, without the
consent of the indemnified party (which consent shall not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of such Loss or which requires action on the part of such indemnified
party or otherwise subjects the indemnified party to any obligation or
restriction to which it would not otherwise be subject.
12
(d) Contribution. If the indemnification provided for in this
Section 7 shall for any reason be unavailable to an indemnified party under
Sections 7(a) or (b) in respect of any Loss, then, in lieu of the amount paid
or payable under Sections 7(a) or (b), the indemnified party and the
indemnifying party under Sections 7(a) or (b) shall contribute to the
aggregate Losses (including legal or other expenses reasonably incurred in
connection with investigating the same) (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the prospective
Holders which resulted in such Loss or action in respect thereof, with respect
to the statements, omissions or actions which resulted in such Loss or action
in respect thereof, as well as any other relevant equitable considerations, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and such
prospective Holders, on the other hand, from their sale of Registrable Notes;
provided that, for purposes of this clause (ii), the relative benefits
received by the prospective Holders shall be deemed not to exceed the net
proceeds received by such Holders. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The obligations, if any, of the Holders to
contribute as provided in this Section 7(d) are several in proportion to the
relative value of their respective Registrable Notes covered by such
registration statement and not joint. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or Loss effected without such Person's consent (provided that such
consent shall not be unreasonably withheld).
(e) Other Indemnification. The Company and the Holders shall, with
respect to any required registration or other qualification of securities
under any Federal or state law or regulation of any governmental authority
other than the Securities Act, indemnify Holder Indemnitees and Company
Indemnitees, respectively, against Losses, or, to the extent that
indemnification shall be unavailable to a Holder Indemnitee or Company
Indemnitee, contribute to the aggregate Losses of such Holder Indemnitee or
Company Indemnitee in a manner similar to that specified in the preceding
subsections of this Section 7 (with appropriate modifications).
(f) Indemnification Payments. The indemnification and contribution
required by this Section 8 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when any
Loss is incurred and is due and payable.
8. Rule 144 and Rule 144A. The Company shall take all actions necessary to
enable Holders to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time,
(ii) Rule 144A under the Securities Act, as such Rule may be amended from time
to time, or (iii) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed under the Exchange
Act. Upon the written request of any Holder, the Company shall deliver to such
Holder a written statement as to whether the Company has complied with such
requirements.
9. Amendments and Waivers. Any provision of this Agreement may be amended,
modified or waived if, but only if, the written consent to such amendment,
modification or waiver has
13
been obtained from the Holder or Holders of at least 50.1% of the aggregate
principal amount of the Registrable Notes then outstanding.
10. Nominees for Beneficial Owners. In the event that any Registrable Notes is
held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its election in writing delivered to the Company, be treated
as the Holder of such Registrable Notes for purposes of any request or other
action by any Holder or Holders pursuant to this Agreement or any
determination of the number or percentage of the aggregate principal amount of
Registrable Notes then outstanding held by any Holder or Holders contemplated
by this Agreement. If the beneficial owner of any Registrable Notes so elects,
the Company may require assurances reasonably satisfactory to it of such
owner's beneficial ownership of such Registrable Notes.
11. Assignment. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Any Holder may assign to any Affiliate of
such Holder (as permitted under applicable law) of its Registrable Notes its
rights and obligations under this Agreement; provided that, such Transferee
shall agree in writing by executing a written joinder agreement in the form
attached hereto as Schedule A (the "Joinder Agreement") prior to the Transfer
to be bound by this Agreement as if it were an original party hereto. Except
as provided above, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by any
Holder without the prior written consent of the Company. The Company may not
assign this Agreement or any right, remedy, obligation or liability arising
hereunder or by reason hereof.
12. Calculation of Percentage of Principal Amount of Registrable Notes. For
purposes of this Agreement, all references to a percentage of aggregate
principal amount of the Registrable Notes or Notes shall be calculated based
upon the aggregate principal amount of Registrable Notes or Notes, as the case
may be, outstanding at the time such calculation is made and shall exclude any
Registrable Notes or Notes, as the case may be, owned by the Company or any
subsidiary of the Company.
13. Termination of Registration Rights. The Company's obligations under
Sections 2(a) hereof to register Notes for sale under the Securities Act shall
terminate on the earliest of (w) such time as all of such Registrable Notes
has been disposed of in accordance with such registration statement, (x) there
shall cease to be any Registrable Notes, (y) such time as each Holder,
together with its Affiliates, shall own, in the aggregate, less than 1% of the
aggregate principal amount of the Registrable Notes then outstanding, and (z)
the third anniversary of the date on which the Shelf Registration Statement is
declared effective. In addition, the Company's obligations under this Section
2(a) of this Agreement shall cease with respect to any Person when such Person
ceases to hold Registrable Notes.
14. Notice of Ownership Below 1%. At such time when the ownership by any
Holder and its Affiliates in the aggregate becomes less than 1% of the
aggregate principal amount of the Registrable Notes then outstanding, such
Holder shall notify the Company that its ownership level has become less than
1% of the aggregate principal amount of the Registrable Notes then outstanding
as promptly as practicable, but in no event later than 10 Business Days after
such time.
14
15. Compliance With Securities Laws. Each Holder agrees that it will not offer
for sale, sell, deliver after sale, transfer, pledge or hypothecate the
Registrable Notes in the absence of an effective registration statement
covering such Registrable Notes under the Securities Act of 1933 and any other
applicable securities laws or any applicable exemption to the registration
requirements of such act or such laws.
16. Miscellaneous.
(a) Further Assurances. Each of the parties hereto shall execute
such documents and other papers and perform such further acts as may be
reasonably required or advisable to carry out the provisions of this Agreement
and the transactions contemplated hereby.
(b) Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(c) Conflicting Instructions. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to
the same Registrable Notes, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Notes.
(d) Remedies. Each Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The parties hereto
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
the parties hereto hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(e) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to the
subject matter hereof, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof.
(f) Notices. Any notices or other communications to be given
hereunder by any party to another party shall be in writing and shall be
delivered personally, by telecopy, by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other comparable
delivery service, as follows: (i) if to the Company, to:
NRG Energy, Inc.
Attention: General Counsel
901 Marquette Avenue
Minneapolis, Minnesota 55402
Tel: (612) 373-5300
Fax: (612) 373-5392
with a copy to:
15
Kirkland & Ellis LLP
Attention: Margaret A. Gibson, P.C.
200 East Randolph Drive
Chicago, Illinois 60601
Tel: (312) 861-2000
Fax: (312) 861-2200
(ii) if to a Holder, to the address of such Holder as set forth in the
signature pages hereto, or (iii) to such other address as the party to whom
notice is to be given may provide in a written notice to the other parties
hereto, a copy of which shall be on file with the Secretary of the Company.
Notice shall be effective when delivered if given personally, when receipt is
acknowledged if telecopied, three days after mailing if given by registered or
certified mail as described above, and one Business Day after deposit if given
by Federal Express or comparable delivery service.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(h) Severability. Notwithstanding any provision of this Agreement,
neither the Company nor any other party hereto shall be required to take any
action which would be in violation of any applicable Federal or state
securities law. The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of any other provision of this Agreement in such jurisdiction
or the validity, legality or enforceability of this Agreement, including any
such provision, in any other jurisdiction, it being intended that all rights
and obligations of the parties hereunder shall be enforceable to the fullest
extent permitted by law.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
NRG ENERGY, INC.
By:
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
HOLDER:
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Aggregate Principal Amount of Notes Owned:
------------------------------------------
Address:
----------------------------------
------------------------------------------
------------------------------------------
Telephone No.:
----------------------------
Facsimile No.:
----------------------------
SCHEDULE A
REGISTRATION RIGHTS AGREEMENT
Joinder Agreement
The undersigned is executing and delivering this Joinder Agreement
pursuant to the Registration Rights Agreement dated as of December 5, 2003 (as
the same may hereafter be amended, the "Agreement"), among NRG Energy, Inc., a
Delaware corporation (the "Company"), and the other persons named as parties
therein. Capitalized terms used herein and not defined herein have the
meanings set forth in the Agreement.
By executing and delivering this Joinder Agreement to the Company,
the undersigned hereby agrees to become a party to, to be bound by, and to
comply with the provisions of the Agreement in the same manner as if the
undersigned were a Holder of Registrable Notes as an original signatory to the
Agreement, and the undersigned's ____ aggregate principal amount of Notes
shall be included as Registrable Notes under the Agreement.
Accordingly, the undersigned has executed and delivered this Joinder
Agreement as of the ___ day of ____________, 200__.
HOLDER:
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Aggregate Principal Amount of Notes Owned:
------------------------------------------
Address:
----------------------------------
------------------------------------------
------------------------------------------
Telephone No.:
----------------------------
Facsimile No.:
----------------------------
Exhibit 4
Execution Copy
- -------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
by and among
NRG ENERGY, INC.
and
THE HOLDERS NAMED HEREIN
----------------------------------------------
Dated as of December [__], 2003
----------------------------------------------
- ------------------------------------------------------------------------------
Table of Contents
Page
1. Definitions........................................................1
2. Securities Act Registration on Request.............................5
(a) Initiating Request........................................5
(b) Registration of Other Securities..........................7
(c) Registration Statement Form...............................7
(d) Effective Registration Statement..........................8
(e) Selection of Underwriters.................................8
(f) Priority in Requested Registration........................8
3. Piggyback Registration.............................................9
4. Expenses..........................................................10
5. Registration Procedures...........................................10
6. Underwritten Offerings............................................15
(a) Requested Underwritten Offerings.........................15
(b) Piggyback Underwritten Offerings: Priority..............15
(c) Participation in Underwritten Registrations..............17
(d) Holdback Agreements......................................17
7. Preparation; Confidentiality......................................18
----------------------------
8. Postponements.....................................................19
9. Indemnification...................................................20
(a) Indemnification by the Company...........................20
(b) Indemnification by the Offerors and Sellers..............21
(c) Notices of Losses, etc...................................22
(d) Contribution.............................................22
(e) Other Indemnification....................................23
(f) Indemnification Payments.................................23
10. Permitted Securities..............................................23
11. Adjustments Affecting Registrable Common Stock....................23
12. Rule 144 and Rule 144A............................................24
13. Amendments and Waivers............................................24
14. Nominees for Beneficial Owners....................................24
i
15. Assignment........................................................24
16. Restrictions on Transfer..........................................25
17. Notice of Transfer................................................25
18. Calculation of Percentage or Number of Shares of Registrable
Common Stock......................................................25
19. Termination of Registration Rights................................26
20. Miscellaneous.....................................................26
(a) Further Assurances.......................................26
(b) Headings.................................................26
(c) Conflicting Instructions.................................26
(d) Remedies.................................................27
(e) Entire Agreement.........................................27
(f) Notices..................................................27
(g) Governing Law............................................27
(h) Severability.............................................28
(i) Counterparts.............................................28
SCHEDULES:
SCHEDULE A - JOINDER AGREEMENT
ii
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December [__], 2003 (this
"Agreement"), by and among NRG Energy, Inc., a Delaware corporation (the
"Company"), and the Holders (as hereinafter defined) of Registrable Common
Stock (as hereinafter defined) who are signatories to this Agreement or a
Joinder Agreement (as hereinafter defined).
This Agreement is being entered into in connection with the receipt
of Common Stock (as hereinafter defined) on or after the Effective Date (as
hereinafter defined) by certain Holders (the original parties to this
Agreement are referred to as the "Original Holders") pursuant to the Plan (as
hereinafter defined). Upon the issuance of the Common Stock, each Original
Holder will own the number of shares of Common Stock specified with respect to
such Original Holder on the signature pages hereto.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein
and in the recitals above shall have the following meanings:
"10% Holder" means, as of any date of determination, any Holder
which owns 10% or more of the Company's Common Stock then outstanding.
"Affiliate" of a Person means any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such other Person. For purposes of this
definition, "control" means the ability of one Person to direct the management
and policies of another Person. For purposes of this Agreement, each of
MattlinPatterson Global Opportunities Partners, L.P. and MattlinPatterson
Global Opportunities Partners (Bermuda), L.P. shall be an Affiliate of the
other. In addition, with respect to each of MattlinPatterson Global
Opportunities Partners, L.P. and MattlinPatterson Global Opportunities
Partners (Bermuda), L.P., the term "Affiliate" shall also include its general
partner, investment manager, any entity with the same general partner or
investment manager as MattlinPatterson Global Opportunities Partners, L.P or
MattlinPatterson Global Opportunities Partners (Bermuda), L.P. (as the case
may be), and any Person under the direct or indirect control of
MattlinPatterson Global Partners LLC or MattlinPatterson Global Advisers LLC
and the general partner(s) and investment manager(s) of any such Person, if
any.
"Bankruptcy Code" means Title 11 of the United States Code.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City or Minneapolis are authorized or
required by law to be closed.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" means the shares of common stock, $.01 par value per
share, of the Company, as adjusted to reflect any merger, consolidation,
recapitalization, reclassification,
split-up, stock dividend, rights offering or reverse stock split made,
declared or effected with respect to the Common Stock.
"Company Indemnitee" has the meaning set forth in Section 9(a)
hereof.
"Confidential Material" means all notices delivered by the Company
under this Agreement, including, without limitation, notices delivered by the
Company pursuant to Section 2 and/or Section 3 (each, an "Offering Notice")
and any and all other information, in any form or medium, written or oral,
concerning or relating to the Company (whether prepared by the Company, its
Representatives or otherwise, and irrespective of the form or means of
communication and which prior to the delivery of an Offering Notice is labeled
or otherwise identified as confidential) that is furnished to a Holder of
Registrable Common Stock or its Representative (or to a Person who was a
Holder who has not notified the Company that it is no longer a Holder pursuant
to Section 17) by or on behalf of the Company, including without limitation
all such oral and written information relating to financial statements,
projections, evaluations, plans, programs, customers, suppliers, facilities,
equipment and other assets, products, processes, marketing, research and
development, trade secrets, know-how, patent applications that that have not
been published, technology and other confidential information and intellectual
property of the Company. During the period beginning on the date of delivery
of an Offering Notice and ending on the date that the registration referred to
therein either becomes effective or is abandoned, all information provided to
the Holders of Registrable Common Stock, who elect to participate in the
offering referred to therein, in connection with such offering shall be deemed
to be Confidential Material, whether or not labeled or otherwise identified as
Confidential Information. "Confidential Material" shall not include
information that: (a) is or becomes available to the public generally, other
than as a result of disclosure by the relevant Holder or one of the
Representatives of such Holder in breach of the terms of this Agreement, or
(b) becomes available to the relevant Holder from a source other than the
Company or one of the Representatives of such Holder, including without
limitation prior to the date hereof, provided that, the Holder reasonably
believes that such source is not bound by a confidentiality agreement with or
does not have a contractual, legal or fiduciary obligation of confidentiality
to the Company or any other Person with respect to such information.
"Effective Date" means the effective date of the Plan pursuant to
the terms thereof.
"Equity Transfer" has the meaning set forth in Section 6(d) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Expenses" means all expenses incident to the Company's performance
of or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, stock exchange and NASD fees
(including, without limitation, all fees and expenses of any "qualified
independent underwriter" required by the rules of the NASD), all fees and
expenses of complying with state securities or blue sky laws (including the
reasonable fees, disbursements and other charges of counsel for the
underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger, telephone and
2
delivery expenses, all rating agency fees, the fees, disbursements and other
charges of counsel for the Company and of its independent public accountants,
including the expenses incurred in connection with any special audits or
comfort letters required by or incident to such performance and compliance,
the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange or national market
system on which similar securities issued by the Company are then listed, the
reasonable fees and disbursements of one law firm (per registration statement
prepared) representing the Selling Holders (selected by the Selling Holders
holding a majority of the shares of Registrable Common Stock covered by such
registration), the fees and expenses of any special experts retained by the
Company in connection with such registration, and the fees and expenses of
other Persons retained by the Company, but excluding underwriting discounts
and commissions and applicable transfer taxes, if any, which discounts,
commissions and transfer taxes shall be borne by the Selling Holders in all
cases; provided that, in any case where Expenses are not to be borne by the
Company, such Expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters or other
expenses for the preparation of financial statements or other data normally
prepared by the Company in the ordinary course of its business or which the
Company would have incurred in any event.
"Holdback Period" has the meaning set forth in Section 6(d) hereof.
"Holder" means, as of any date of determination, (a) any Original
Holder who owns at least (i) 1% of the Company's Common Stock outstanding as
of the Effective Date (after giving effect to the issuance of shares of Common
Stock pursuant to the Plan) and (ii) 1% of the Company's Common Stock on the
date of determination, or (b) any Person who (i) acquired at least 1% of the
Company's Common Stock then outstanding from an Original Holder, (ii) owns at
least 10% of the Company's Common Stock then outstanding and (iii) has
delivered to the Company a Joinder Agreement in accordance with Section 15.
"Holder Indemnitee" has the meaning set forth in Section 9(b)
hereof.
"Initiating Holder" means at the time of any Initiating Request a
10% Holder.
"Initiating Holder Group" means Holders (not including any 10%
Holder) which collectively own 10% or more of the Company's Common Stock
outstanding at the time of delivery of an Initiating Request.
"Initiating Request" has the meaning set forth in Section 2(a)
hereof.
"Joinder Agreement" has the meaning set forth in Section 15 hereof.
"Loss" and "Losses" have the meanings set forth in Section 9(a)
hereof.
"Material Adverse Change" means (a) any general suspension of
trading in securities on any national securities exchange or in the
over-the-counter market in the United States of America; (b) the declaration
of a banking moratorium or any suspension of payments in respect of banks in
the United States of America; (c) the commencement of war, armed hostilities,
terrorism or other national or international calamity involving the United
States of
3
America; (d) any other limitation (whether or not voluntary) imposed
by any governmental authority of the United States of America, which
materially affects the extension of credit by U.S. banks or other financial
institutions; (e) any material adverse change in the business, condition
(financial or otherwise) or prospects of the Company and its subsidiaries,
taken as a whole (provided that, if the registration is with respect to an
underwritten offering, in no event shall any such change be deemed to be a
Material Adverse Change if the offering price remains within the range
originally advised by the underwriter); or (f) a 20% or more decline in the
Dow Jones Industrial Average, the Standard and Poor's Index of 500 Industrial
Companies or the Dow Jones Utilities Index, in each case from the date of an
Initiating Request.
"NASD" means the National Association of Securities Dealers, Inc.
"Non-withdrawing Holders" has the meaning set forth in Section
2(a)(ii)(D) hereof.
"Offering Documents" has the meaning set forth in Section 9(a)
hereof.
"Permitted Securities" has the meaning set forth in Section 2(b)
hereof.
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint stock company,
trust, unincorporated organization, governmental or regulatory body or
subdivision thereof or other entity.
"Piggyback Registration" has the meaning set forth in Section 3
hereof.
"Piggyback Requesting Holder" has the meaning set forth in Section 3
hereof.
"Plan" means the Plan of Reorganization under Chapter 11 of the
Bankruptcy Code for the Company and certain of its domestic subsidiaries, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Public Offering" means a public offering and sale of Common Stock
pursuant to an effective registration statement (other than a registration
statement on Form S-4 or Form S-8 or any successor or similar forms) under the
Securities Act.
"Registrable Common Stock" means any of the Common Stock owned by
the Holders from time to time; provided, however, that a share of Common Stock
will cease to be Registrable Common Stock when (a) a registration statement
covering such Registrable Common Stock has been declared effective and such
Registrable Common Stock has been sold pursuant to such effective registration
statement, or (b) such Registrable Common Stock has been Transferred to a
Person who is not (and does not become as a result of such Transfer) a Holder.
"Representative" has the meaning set forth in Section 7(b) hereof.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar or successor statute.
4
"Selling Holder" means a Holder who is selling Registrable Common
Stock requested to be registered pursuant to Section 2(a) or Section 3 hereof.
"Transfer" means any transfer, sale, assignment, pledge,
hypothecation or other disposition of any interest. "Transferor" and
"Transferee" have correlative meanings.
"Withdrawal Notice" has the meaning set forth in Section 19 hereof.
In this Agreement, all references to "ownership" of Common Stock or
Registrable Common Stock shall be deemed to mean the beneficial ownership of
Common Stock or Registrable Common Stock, unless otherwise specified.
2. Securities Act Registration on Request.
(a) Initiating Request. At any time and from time to time after the first
anniversary following the Effective Date and if the Company's obligations
hereunder have not terminated pursuant to and in accordance with the terms of
Section 19 hereof, any Initiating Holder or Initiating Holder Group may make a
written request (the "Initiating Request") for the registration with the
Commission under the Securities Act of all or part of the Registrable Common
Stock owned by such Initiating Holder or Initiating Holder Group; provided,
however, such request shall specify the number of shares to be disposed of by
such Initiating Holder or Initiating Holder Group and the proposed plan of
distribution therefor. Upon the receipt of any Initiating Request for
registration pursuant to this Section 2(a), the Company shall promptly (and in
any event within 10 Business Days after receipt of the Initiating Request)
notify in writing all other Holders of the receipt of such request and will
use its reasonable best efforts to effect, at the earliest practicable date,
such registration under the Securities Act of:
(i) the Registrable Common Stock which the Company has been so
requested to register by such Initiating Holder or Initiating
Holder Group, and
(ii) all other Registrable Common Stock which the Company has been
requested to register by any other Holders by written request
(provided that, if such Holder shall specify in such request
that it does not wish to receive any Confidential Material,
except as set forth in such request, then the Company shall not
deliver to such Holder any such Confidential Material) given to
the Company within 30 days after the giving of written notice
by the Company to such other Holders of the Initiating Request,
all to the extent necessary to permit the disposition (in accordance with
Section 2(c) hereof) of the Registrable Common Stock so to be registered;
provided that,
(A) (i) any Initiating Holder shall be permitted to make an
Initiating Request on up to two occasions and (ii) any
Initiating Holder Group shall be permitted to make an
Initiating Request on one occasion only; provided,
however, that if at any time there ceases to be a 10%
Holder and at least one of the two written requests
provided for in clause (i) of this paragraph (A) has not
been used, any Initiating Holder Group shall have the
right to make an
5
additional Initiating Request and the number of
Initiating Requests referenced in clause (i) of this
paragraph (A) shall be permanently reduced to one;
provided further that, the Company shall not be required
to effect more than a total of three registrations
pursuant to this Section 2(a) for all Holders;
(B) the Company shall not be required to effect such
registration pursuant to this Section 2(a) unless the
disposition of the Registrable Common Stock shall be
conducted through an underwritten offering on a "firm
commitment" basis, unless the Initiating Request is made
by (i) an Initiating Holder who is a 10% Holder, or (ii)
an Initiating Holder Group, a member of which was but is
no longer a 10% Holder but is an "affiliate" of the
Company for purposes of Rule 144 under the Securities Act;
(C) if the Company shall have previously effected a
registration pursuant to this Section 2(a) or shall have
previously effected a registration of which notice has
been given to the Holders pursuant to Section 3 hereof,
the Company shall not be required to effect any
registration pursuant to this Section 2(a) until a period
of 180 days shall have elapsed from the date on which the
previous such registration ceased to be effective;
(D) any Initiating Holder or Initiating Holder Group (at the
request of those members of such Initiating Holder Group
owning a majority of the shares of Registrable Common
Stock owned by all members of such Initiating Holder
Group) whose Registrable Common Stock was to be included
in any registration pursuant to this Section 2(a), by
written notice to the Company, may withdraw its Initiating
Request. Upon receipt of such withdrawal notice (except as
otherwise provided in sub-clause (x)), the Company shall
not effect such registration and such registration shall
not count as one of the permitted registrations pursuant
to paragraph (A) above; provided that (x) if the members
of an Initiating Holder Group that have not requested
withdrawal of an Initiating Request collectively own and
wish the Company to register the offering of 10% or more
of the Company's Common Stock outstanding at the time of
delivery of the Initiating Request (the "Non-withdrawing
Holders"), the Company shall effect a registration that
includes only such shares of Common Stock owned by the
Non-withdrawing Holders and such registration shall count
as one of the registrations permitted for an Initiating
Holder Group pursuant to paragraph (A) above; (y) any
Initiating Holder may withdraw its Initiating Request not
more than twice and any Initiating Holder Group may
withdraw its Initiating Request not more than twice
(provided further for the avoidance of doubt that the
aggregate number of withdrawals under this clause (y) by
all Initiating
6
Holder Groups however constituted shall not exceed two),
in either case unless such Initiating Request is withdrawn
for a reason specified in sub-clause (z)(i); and (z) the
Initiating Holder or Initiating Holder Group shall either
(i) elect to pay or reimburse the Company for all Expenses
incurred in connection with the second registration that
is not effected as the result of an Initiating Request
that is withdrawn by such Initiating Holder or Initiating
Holder Group, as the case may be, pursuant to this
paragraph (D), unless such Initiating Request is withdrawn
either (I) at the request of the Company, (II) because a
breach by the Company of its obligations under this
Agreement has materially and adversely affected the
offering, or (III) within 5 Business Days following the
occurrence of a Material Adverse Change, in which case the
Company shall pay all Expenses incurred in connection with
such registration, or (ii) have the withdrawn Initiating
Request count as one of the permitted registrations
pursuant to paragraph (A) above; and
(E) the Company shall not be required to effect any
registration to be effected pursuant to this Section 2(a)
unless at least 10% of the shares of Registrable Common
Stock outstanding at the time of such request is to be
included in such registration.
(b) Registration of Other Securities. Whenever the Company shall effect a
registration pursuant to Section 2(a) hereof, no securities other than (i)
Registrable Common Stock, (ii) subject to Section 2(f), Common Stock to be
sold by the Company for its own account, and (iii) Common Stock or other
capital stock issued in connection with equity investments in the Company or
its subsidiaries or acquisitions (such Common Stock or other capital stock,
which shall not include Common Stock outstanding on the Effective Date, is
referred to as "Permitted Securities") for which the Company's board of
directors has approved of the granting of such registration rights shall be
included among the securities covered by such registration, unless otherwise
approved by the Holders owning a majority of the shares of Registrable Common
Stock covered by such registration, which approval shall not be unreasonably
withheld.
(c) Registration Statement Form. Registrations under Section 2(a) hereof
shall be on such appropriate registration form prescribed by the Commission
under the Securities Act as shall be selected by the Company and which form
shall be available for the sale of the Registrable Common Stock to be
registered thereunder in accordance with the intended method of distribution
thereof. The Company agrees to include in any such registration statement
filed pursuant to Section 2(a) hereof all information which counsel for the
Selling Holders holding a majority of the shares of Registrable Common Stock
covered by such registration effected pursuant hereto shall advise is legally
required to be included. The Company may, if permitted by law, effect any
registration requested under this Section 2 by the filing of a registration
statement on Form S-3 (or any successor or similar short form registration
statement); provided, however, that in the case of an underwritten offering,
if the managing underwriters advise the Company that in their opinion the use
of another permitted form is of material importance to the
7
success of the offering, then the Company shall effect such registration on
such other permitted form.
(d) Effective Registration Statement. Except as set forth in Section
2(a)(ii)(D), a registration requested pursuant to Section 2(a) hereof shall
not be deemed to have been effected:
(i) unless a registration statement with respect thereto has been
declared effective by the Commission and remains effective in
compliance with the provisions of the Securities Act and the
laws of any state or other jurisdiction applicable to the
disposition of Registrable Common Stock covered by such
registration statement until the earlier of (x) such time as
all of such Registrable Common Stock has been disposed of in
accordance with such registration statement, (y) there shall
cease to be any Registrable Common Stock or (z) 120 days after
such registration statement is declared effective;
(ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental or
regulatory agency or court for any reason other than a
violation of applicable law solely by any Selling Holder and
has not thereafter become effective; or
(iii) if, in the case of an underwritten offering, the conditions to
closing specified in an underwriting agreement to which the
Company is a party are not satisfied or waived other than
solely by reason of any breach or failure by any Selling
Holder, or are not otherwise waived.
The Holders to be included in a registration statement may at any
time terminate a request for registration made pursuant to Section 2(a) in
accordance with Section 2(a)(ii)(D).
(e) Selection of Underwriters. The underwriter or underwriters of each
underwritten offering of the Registrable Common Stock to be registered
pursuant to Section 2(a) hereof shall be selected by the Company (provided
that, the managing underwriter must be a "bulge bracket" investment banking
firm), subject to (i) if a 10% Holder or former 10% Holder is not the
Initiating Holder or a member of the Initiating Holder Group, the approval of
the Selling Holders owning a majority of the shares of Registrable Common
Stock to be registered which approval shall not be unreasonably withheld or
delayed, or (ii) if a 10% Holder or former 10% Holder is the Initiating Holder
or a member of the Initiating Holder Group, the approval of such 10% Holder or
such former 10% Holder which approval may be withheld in its sole discretion;
provided, however, that in any event the Company shall be satisfied that the
terms of such underwriting engagement are commercially reasonable market
terms.
(f) Priority in Requested Registration. If the managing underwriter of an
underwritten offering pursuant to Section 2(a) shall advise the Company (in
which case, the Company shall use reasonable efforts to advise the Selling
Holders) that, in its judgment, the number and type of securities proposed to
be included in such registration would exceed the number and type of
securities which could be sold in such offering within a price range
8
acceptable to the Company and the Selling Holders owning at least a majority
of the shares of Registrable Common Stock covered by such registration, then
the Company shall include in such registration pursuant to Section 2(a), to
the extent of the number and type of securities which the Company is so
advised can be sold in such offering, (i) first, Registrable Common Stock
requested to be registered by the Selling Holders pursuant to Section 2(a)
hereof, pro rata among the Selling Holders on the basis of the number of
shares of Registrable Common Stock requested to be registered by all such
Selling Holders, (ii) second, Permitted Securities requested to be registered
by the holders of Permitted Securities, pro rata among the holders of
Permitted Securities on the basis of the number of Permitted Securities
requested to be registered by all such holders of Permitted Securities and
(iii) third, securities that the Company proposes to issue and sell for its
own account.
3. Piggyback Registration. If the Company proposes to file a registration
statement under the Securities Act with respect to an equity offering by the
Company (or any offering by the Company of securities convertible into or
exchangeable for equity securities) for its own account or for the account of
any of its respective securityholders of any class of equity security or
security convertible into or exchangeable for equity securities (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission) or a registration statement to be filed in
connection with an exchange offer or offering of securities solely to the
Company's existing securityholders), then the Company shall give written
notice (which notice shall include a range of expected public offering prices;
provided, however, if the underwriter has not advised the Company of such a
range as of the date of such notice, then the Company shall notify the Holders
in writing as promptly as practicable after it receives such advice from such
underwriter) of such proposed filing to the Holders as soon as reasonably
practicable (and in any event at least 30 days prior to such proposed
registration), and such notice shall offer such Holders the opportunity to
register such number of shares of Registrable Common Stock as each such Holder
may request in writing in accordance with the provisions of this Section 3 (a
"Piggyback Registration"). Upon written request, any Holder receiving notice
of such proposed registration (a "Piggyback Requesting Holder") made within 30
days after the receipt of any such notice (10 days if the Company states in
such written notice or gives telephonic notice to the relevant Holder, with
written confirmation to follow promptly thereafter, stating that (a) such
registration will be on Form S-3 (or any successor form) and (b) such shorter
period of time is required because of a planned filing date), which request
shall specify the number of shares of Registrable Common Stock intended to be
disposed of by such Piggyback Requesting Holder (provided that, if such Holder
shall specify in such request that it does not wish to receive any
Confidential Material, except as set forth in such request, then the Company
shall not deliver to such Holder any such Confidential Material), the Company
shall, subject to Section 6(b) hereof, be obligated to permit the Registrable
Common Stock requested to be included in a Piggyback Registration to be
included on the same terms and conditions as any similar securities of the
Company included therein, unless (i) the managing underwriter of an
underwritten offering pursuant to this Section 3 has determined that the
inclusion of such Registrable Common Stock would have a material adverse
effect on the offering, and (ii) the Holders of a majority of the shares of
Registrable Common Stock approve of such exclusion; provided that, if at any
time after giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company shall
give written notice of such determination to each Piggyback
9
Requesting Holder and (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Common Stock
in connection with such registration (but not from any obligation of the
Company to pay the Expenses in connection therewith), without prejudice,
however, to the rights of any Holder to include Registrable Common Stock in
any future registration (or registrations) pursuant to this Section 3 or to
cause such registration to be effected as a registration under Section 2(a)
hereof, as the case may be, and (ii) in the case of a determination to delay
registering, shall be permitted to delay in each case registering any
Registrable Common Stock, for the same period as the delay in registering such
other securities. Notwithstanding the foregoing, prior to the date on which
the securities to be sold in such offering are priced, if the managing
underwriter (if an underwritten offering) notifies the Company of a change in
the price range at which it believes the securities will be sold from the
price range the Company previously provided to such Piggyback Requesting
Holders, the Company shall so advise the Piggyback Requesting Holders, and
each Piggyback Requesting Holder shall then have the right irrevocably to
withdraw its request to have its Registrable Common Stock included in such
registration by delivery of written notice of such withdrawal to the Company
within five Business Days after having received such notice from the Company,
without prejudice, however, to the rights of any Holder to include Registrable
Common Stock in any future registration (or registrations) pursuant to this
Section 3 or to cause such registration to be effected as a registration under
Section 2(a) hereof, as the case may be.
No registration effected under this Section 3 shall relieve the
Company of its obligation to effect any registration upon request under
Section 2(a) hereof and no registration effected pursuant to this Section 3
shall be deemed to have been effected pursuant to Section 2(a) hereof.
4. Expenses. Except as otherwise provided in clause (z) of Section 2(a)(ii)(D)
and the final paragraph of Section 5, the Company shall pay all Expenses in
connection with any registration initiated pursuant to Sections 2(a) or 3
hereof, whether or not such registration shall become effective and whether or
not all or any portion of the shares of Registrable Common Stock originally
requested to be included in such registration are ultimately included in such
registration.
5. Registration Procedures. If and whenever the Company is required or elects
to effect any registration under the Securities Act as provided in Sections
2(a) and 3 hereof, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission (promptly and, in the case
of any registration pursuant to Section 2(a), in any event on
or before the date that is (i) 90 days after the end of the
period within which requests may be given to the Company
pursuant to Section 2(a)(ii), or (ii) if, as of such 90th day,
the Company does not have the audited financial statements
required to be included in the registration statement, 30 days
after the receipt by the Company from its independent public
accountants of such audited financial statements, which the
Company shall use its reasonable best efforts to obtain as
promptly as practicable) the requisite registration statement
to effect such registration and thereafter use its reasonable
best efforts to cause such registration statement to become and
remain effective; provided, however, that the Company may
discontinue any registration
10
of its securities that are not shares of Registrable Common
Stock (and, under the circumstances specified in Sections 3 and
8(b) hereof, its securities that are shares of Registrable
Common Stock) at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the
provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Common Stock
covered by such registration statement until such time as all
of such Registrable Common Stock has been disposed of in
accordance with the method of disposition set forth in such
registration statement (subject to Section 5(a)); provided
that, such period need not extend beyond 120 days after the
effective date of the registration statement;
(c) furnish to each Selling Holder and each underwriter such number
of copies of such drafts and final conformed versions of such
registration statement and of each such amendment and
supplement thereto (in each case including all exhibits and any
documents incorporated by reference), such number of copies of
such drafts and final versions of the prospectus contained in
such registration statement (including each preliminary
prospectus and any summary prospectus), if any, and any other
prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and
such other documents, as the Selling Holders and underwriters
may reasonably request in writing;
(d) use its reasonable best efforts (i) to register or qualify all
Registrable Common Stock and other securities, if any, covered
by such registration statement under such other securities or
blue sky laws of such states or other jurisdictions of the
United States of America as the Selling Holders shall
reasonably request in writing, (ii) to keep such registration
or qualification in effect for so long as such registration
statement remains in effect and (iii) to take any other action
that may be necessary or reasonably advisable to enable such
Selling Holders to consummate the disposition in such
jurisdictions of the securities to be sold by such Selling
Holders, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for
the requirements of this Section 5(d) be obligated to be so
qualified, to subject itself to taxation in such jurisdiction
or to consent to general service of process in any such
jurisdiction;
(e) use its reasonable best efforts to cause all Registrable Common
Stock and other securities, if any, covered by such
registration statement to be registered with or approved by
such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to
the Company and counsel to the Selling Holder or Selling
Holders to enable the Selling Holder or Selling Holders thereof
to consummate the disposition of such Registrable Common Stock;
11
(f) use its reasonable best efforts to obtain and, if obtained,
furnish to each Selling Holder, and each underwriter a signed
copy, addressed to each such underwriter, of:
(i) an opinion or opinions of counsel to the Company dated the
effective date of such registration statement (and, if such
registration involves an underwritten offering, dated the date of
the closing under the underwriting agreement), and
(ii) a comfort letter or comfort letters, dated the effective
date of such registration statement (and, if such registration
involves an underwritten offering, dated the date of the closing
under the underwriting agreement), from the independent public
accountants who have certified the Company's financial statements
included or incorporated by reference in such registration
statement,
each in customary form, covering such matters of the type
customarily covered by opinions of counsel or comfort letters, as
the case may be, and reasonably satisfactory to the managing
underwriter;
(g) notify each Selling Holder and the managing underwriter or
underwriters, if any, promptly, and confirm such advice promptly in
writing thereafter (i) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has been
filed and, with respect to the registration statement and any
post-effective amendment, when the same has become effective; (ii)
of any request by the Commission for amendments or supplements to
the registration statement or prospectus 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 by any Person for that purpose;
(iv) if at any time the representations and warranties of the
Company made as contemplated by Section 6(a) ceases to be true and
correct; and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Common Stock for sale under the securities or blue sky
laws of any jurisdiction or the initiation or threat of any
proceeding for such purpose;
(h) promptly notify each Selling Holder and the managing underwriter or
underwriters, if any, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery
that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of
12
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made and, at the written request of any such Selling Holder or
underwriter, if any, promptly prepare and furnish to it a reasonable
number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such securities, such prospectus, as supplemented
or amended, shall not include 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 in the light
of the circumstances under which they were made; provided that, in
the event the Company shall give such notice, the Company shall
extend the period for which such registration shall remain effective
by the number of days during the period of days from and including
the date of the giving of such notice to the date when the Company
shall make available to the Holders such supplemented and amended
prospectus;
(i) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement
relating to the Registrable Common Stock at the earliest possible
moment;
(j) otherwise comply with all applicable rules and regulations of the
Commission and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, furnish to each
Selling Holder and to the managing underwriter at least 10 days
prior to the filing thereof a copy of any amendment or supplement to
such registration statement or prospectus, and not file any
amendment or supplement thereof which does not comply in all
material respects with the requirements of the Securities Act or the
rules and regulations thereunder;
(k) use its reasonable best efforts to cause all such Registrable Common
Stock covered by a registration statement to be listed or quoted on
each securities exchange or inter-dealer automated quotation system
on which similar securities issued by the Company are then listed or
quoted;
(l) provide and maintain a transfer agent and registrar for the
Registrable Common Stock covered by a registration statement from
and after a date no later than the effective date thereof;
(m) enter into such agreements (including, in the case of an
underwritten offering, an underwriting agreement in customary form)
and take such other actions as the Selling Holders holding a
majority of the shares of Registrable Common Stock covered by such
registration statement shall reasonably request in order to expedite
or facilitate the disposition of such Registrable Common Stock,
including customary indemnification;
(n) if requested by the managing underwriter or the Selling Holders
holding a majority of the shares of Registrable Common Stock being
sold, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing
underwriter or the Selling Holders of a majority of the Registrable
Common Stock being sold, as the case may be, agree should be
included therein relating to the plan of distribution with respect
to such
13
Registrable Common Stock, including without limitation, information
with respect to the number of shares of Registrable Common Stock
being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the underwritten offering of the Registrable Common Stock to be sold
in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(o) if requested by the Selling Holders holding a majority of the shares
of Registrable Common Stock being sold, cooperate with the such
Selling Holders and the managing underwriter, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Common Stock to be sold and not bearing any restrictive
legends, and enable such Registrable Common Stock to be in such
share amounts and registered in such names as the managing
underwriter or, if none, the Selling Holders holding a majority of
the shares of Registrable Common Stock being sold, may request at
least three Business Days prior to any sale of Registrable Common
Stock to the underwriters; and
(p) cause representatives of the Company to participate in any "road
show" or "road shows" reasonably requested by any lead underwriter
of an underwritten offering of Registrable Common Stock.
As a condition to the obligations of the Company to complete any
registration pursuant to this Agreement with respect to the Registrable Common
Stock of a Selling Holder, such Selling Holder must furnish to the Company in
writing such information regarding itself and the Registrable Common Stock
held by it as is necessary to effect the registration of such Selling Holder's
Registrable Common Stock and is requested in writing by the Company. At least
30 days prior to the first anticipated filing date of a registration statement
for any registration under this Agreement, the Company will notify in writing
each Holder of the information referred to in the preceding sentence which the
Company is requesting from that Holder whether or not such Holder has elected
to have any of its Registrable Common Stock included in the registration
statement. If, within 10 days prior to the anticipated filing date, the
Company has not received the requested information from a Holder, then the
Company may file the registration statement without including Registrable
Common Stock of that Holder.
Each Selling Holder agrees that as of the date that a final
prospectus is made available to it for distribution to prospective purchasers
of its Registrable Common Stock it shall cease to distribute copies of any
preliminary prospectus prepared in connection with the offer and sale of such
Registrable Common Stock. Each Selling Holder further agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 5(h), such Selling Holder shall forthwith
discontinue such Selling Holder's disposition of Registrable Common Stock
pursuant to the registration statement relating to such Registrable Common
Stock until such Selling Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5(h) and, if so directed by the
Company, shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Selling Holder's possession of
the prospectus relating to such Registrable Common Stock current
14
at the time of receipt of such notice. If any event of the kind described in
Section 5(h) occurs and such event is the fault solely of a Selling Holder (or
Selling Holders), such Selling Holder (or such Selling Holders) shall pay all
Expenses attributable to the preparation, filing and delivery of any
supplemented or amended prospectus contemplated by Section 5(h).
6. Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the underwriters in
connection with a request for a registration under Section 2(a) hereof, the
Company shall enter into a firm commitment underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory
in substance and form to the Company and the Selling Holders holding a
majority of the shares of Registrable Common Stock included in such
registration, and the underwriters and to contain such representations and
warranties by the Company and such other terms as are customary in agreements
of that type, including, without limitation, indemnification and contribution
to the effect and to the extent provided in Section 9 hereof.
(b) Piggyback Underwritten Offerings: Priority.
(i) If the Company proposes to register any of its securities under
the Securities Act for its own account as contemplated by
Section 3 hereof and such securities are to be distributed by
or through one or more underwriters, and if the managing
underwriter of such underwritten offering shall advise the
Company (in which case, the Company shall use reasonable
efforts to advise the Selling Holders in writing) that if all
the shares of Common Stock requested to be included in such
registration were so included, then in its judgment, the number
and type of securities proposed to be included in such
registration would exceed the number and type of securities
which could be sold in such offering within a price range
acceptable to the Company, then the Company shall include in
such registration pursuant to Section 3, to the extent of the
number and type of securities which the Company is so advised
can be sold in such offering, (A) first, securities that the
Company proposes to issue and sell for its own account, (B)
second, Permitted Securities requested to be registered by the
holders of Permitted Securities and Registrable Common Stock
requested to be registered by Piggyback Requesting Holders
pursuant to Section 3 hereof, pro rata among the holders of
Permitted Securities and Piggyback Requesting Holders on the
basis of the number of shares of Permitted Securities and
Registrable Common Stock requested to be registered by all such
holders of Permitted Securities and Piggyback Requesting
Holders, and (C) third, other securities (other than
Registrable Common Stock or Permitted Securities), if any.
(ii) If the Company proposes to register any Permitted Securities
pursuant to a demand registration right of the holders of
Permitted Securities as contemplated by Section 3 involving an
underwritten offering, and if the managing underwriter of such
underwritten offering shall advise the
15
Company (in which case, the Company shall use reasonable
efforts to advise the Selling Holders in writing) that if all
the shares of Common Stock requested to be included in such
registration were so included, then in its judgment, the number
and type of securities proposed to be included in such
registration would exceed the number and type of securities
which could be sold in such offering within a price range
acceptable to the Company, then the Company shall include in
such registration pursuant to Section 3, to the extent of the
number and type of securities which the Company is so advised
can be sold in such offering, (A) first, Permitted Securities
requested to be registered by the holders of Permitted
Securities pursuant to Section 3 hereof, pro rata among the
holders of Permitted Securities on the basis of the number of
shares of Permitted Securities requested to be registered by
all such holders of Permitted Securities, (B) second,
Registrable Common Stock requested to be registered by
Piggyback Requesting Holders pursuant to Section 3 hereof, pro
rata among the Piggyback Requesting Holders on the basis of the
number of shares of Registrable Common Stock requested to be
registered by all such Piggyback Requesting Holders, (C) third,
securities that the Company proposes to issue and sell for its
own account (unless the Holders of a majority of the shares of
Registrable Common Stock consent to the inclusion of the
Company's securities on a pro rata basis with the Registrable
Common Stock requested to be registered by Piggyback Requesting
Holders pursuant to Section 3 hereof), and (D) fourth, other
securities (other than Registrable Common Stock or Permitted
Securities), if any.
(iii) If the Company proposes to register any securities other than
securities described in (i) and (ii) above, as contemplated by
Section 3 involving an underwritten offering, if the managing
underwriter of such underwritten offering shall advise the
Company (in which case, the Company shall use reasonable
efforts to advise the Selling Holders in writing) that if all
the shares of Common Stock requested to be included in such
registration were so included, then in its judgment, the number
and type of securities proposed to be included in such
registration would exceed the number and type of securities
which could be sold in such offering within a price range
acceptable to the Company, then the Company shall include in
such registration pursuant to Section 3, to the extent of the
number and type of securities which the Company is so advised
can be sold in such offering, (A) first, Permitted Securities
requested to be registered by the holders of Permitted
Securities and Registrable Common Stock requested to be
registered by Piggyback Requesting Holders pursuant to Section
3 hereof, pro rata among the holders of Permitted Securities
and Piggyback Requesting Holders on the basis of the number of
shares of Permitted Securities and Registrable Common Stock
requested to be registered by all such holders of Permitted
Securities and Piggyback Requesting Holders, (B) second,
securities that the Company proposes to issue and sell for its
own account (unless the Holders of a majority of the shares of
Registrable
16
Common Stock consent to the inclusion of the Company's
securities on a pro rata basis with the Registrable Common
Stock requested to be registered by Piggyback Requesting
Holders pursuant to Section 3 hereof), and (C) third, other
securities (other than Registrable Common Stock and Permitted
Securities), if any.
(c) Participation in Underwritten Registrations. The Holders of
Registrable Common Stock to be distributed by underwriters in an
underwritten offering contemplated by subsections (a) or (b) of this
Section 6 shall be parties to the underwriting agreement between the
Company and such underwriters. No Holder may participate in any
underwritten registration hereunder unless such Holder (i) agrees to sell
such Holder's Registrable Common Stock on the basis provided in any such
underwriting arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting agreements. The Selling Holders may, at their option,
require that any or all of the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of
the underwriters shall also be made to and for the benefit of such
Selling Holders. No Selling Holder shall be required to make any
representation or warranty to or agreement with the Company or the
underwriters other than representations and warranties contained in a
writing furnished by such Selling Holder expressly for use in such
registration statement or agreements regarding such Selling Holder, the
Selling Holder's Registrable Common Stock and the Selling Holder's
intended method of distribution and any other representations required by
law.
(d) Holdback Agreements.
(i) Each Holder agrees, unless otherwise agreed to by the
managing underwriter for any underwritten offering
pursuant to this Agreement, not to, directly or
indirectly, sell, transfer, make any short sale of, loan
or effect any distribution or other disposition of any
interest in any equity securities of the Company or
securities convertible into or exchangeable or exercisable
for equity securities of the Company, including any sale
under Rule 144 under the Securities Act (each, an "Equity
Transfer"), during the period (the "Holdback Period")
commencing 10 days prior to the date on which an
underwritten registration pursuant to Sections 2 or 3
hereof has become effective and until (A) 180 days after
the effective date of the Company's first underwritten
registered Public Offering following the Effective Date
(or such shorter period as the managing underwriter of
such Public Offering may permit in writing), or (B) 90
days after the effective date of any subsequent
underwritten registration, except as part of such initial
underwritten registered Public Offering or any subsequent
underwritten registration or to the extent that such
Holder is prohibited by applicable law from agreeing to
withhold securities from sale or is acting in its capacity
as a fiduciary or an investment adviser. Without limiting
the scope of the term "fiduciary," a holder shall be
deemed to be acting as a fiduciary or an investment
adviser if its actions or the securities proposed to be
sold are subject to the Employee Retirement Income
Security Act of 1974, as amended, the Investment Company
Act of 1940, as amended, or
17
the Investment Advisers Act of 1940, as amended, or if
such securities are held in a separate account under
applicable insurance law or regulation.
(ii) The Company agrees (A) not to sell, make any short sale
of, loan, grant any option for the purchase of (other than
employee stock options), or effect any Public Offering or
distribution of any equity securities of the Company, or
securities convertible into or exchangeable or exercisable
for equity securities of the Company, during the 10 days
prior to the date on which any underwritten registration
pursuant to Sections 2 or 3 hereof has ---------- - become
effective and until 90 days after the effective date of
such underwritten registration, except as part of such
underwritten registration, and (B) to cause each holder of
any equity securities, or securities convertible into or
exchangeable or exercisable for equity securities, in each
case, acquired from the Company at any time on or after
the Effective Date (other than in a Public Offering), to
agree not to sell, make any short sale of, loan, grant any
option for the purchase of, or effect any Public Offering
or distribution of such securities, during such period,
unless the managing underwriter for any underwritten
offering pursuant to this Agreement otherwise agrees.
7. Preparation; Confidentiality.
(a) Preparation. In connection with the preparation and filing of each
registration statement under the Securities Act pursuant to this
Agreement, the Company shall (i) give representatives (designated to
the Company in writing) of each Holder or group of Holders holding
at least 20% of the shares of Registrable Common Stock to be
registered under such registration statement, the underwriters, if
any, and one firm of counsel retained on behalf of all underwriters
and one firm of counsel retained on behalf of Holders holding a
majority of the shares of Registrable Common Stock covered by such
registration statement, the reasonable opportunity to participate in
the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
thereof or supplement thereto, (ii) upon reasonable advance notice
to the Company, give each of them such reasonable access to all
financial and other records, corporate documents and properties of
the Company and its subsidiaries, as shall be necessary, in the
reasonable opinion of such Holders' and such underwriters' counsel,
to conduct a reasonable due diligence investigation for purposes of
the Securities Act, and (iii) upon reasonable advance notice to the
Company, provide such reasonable opportunities to discuss the
business of the Company with its officers, directors, employees and
the independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of such
Holders' and such underwriters' counsel, to conduct a reasonable due
diligence investigation for purposes of the Securities Act.
(b) Confidentiality.
18
(i) Each Holder shall and shall cause its directors, officers,
partners, managers, members, employees, advisors, agents and
other representatives, including without limitation attorneys,
accountants, consultants and financial advisors (collectively,
"Representatives") to maintain the confidentiality of and not
to disclose any Confidential Material; provided, however, that
a Holder may disclose Confidential Material (A) to such of its
Representatives who need such information in connection with
such Holder's investment in securities of the Company, or (B)
to the extent required by applicable law, regulation, legal
process or court order.
(ii) Notwithstanding the foregoing, a Holder or its Representative
may disclose to any and all Persons, without limitation of any
kind, the tax treatment and tax structure of the transactions
contemplated hereunder and all materials of any kind (including
opinions or other tax analyses) that are provided to such
Holder or such Representative relating to such tax treatment
and tax structure, except to the extent necessary to comply
with any applicable federal or state securities laws. This
authorization is not intended to permit disclosure of any other
information, including, without limitation, (A) any portion of
any materials to the extent not related to the tax treatment or
tax structure of the transactions contemplated hereunder, (B)
the identities of participants or potential participants in the
transactions contemplated hereunder, (C) the existence or
status of any negotiations, (D) any pricing or financial
information (except to the extent such pricing or financial
information is related to the tax treatment or tax structure of
the transactions contemplated hereunder), or (E) any other term
or detail not relevant to the tax treatment or the tax
structure of the transactions contemplated hereunder. Each
Holder agrees not to (directly or indirectly) trade in the
Company's securities in violation of the applicable federal and
state securities laws and regulations. Each Holder shall not
grant access, and the Company shall not be required to grant
access, to Confidential Material under this Section 7 to any
Representative who will not agree to maintain the
confidentiality (to the same extent a Holder is required to
maintain confidentiality) of any Confidential Material received
from or otherwise made available to it by the Company or the
Holders under this Agreement.
(iii) Each Holder shall be bound by this Section 7(b) and shall
remain bound until the earlier of (A) the first anniversary of
the date on which such Holder is no longer a party to this
Agreement, and (B) the first date on which the Confidential
Material received by such Holder ceases to be Confidential
Material.
8. Postponements.
(a) If the Company shall fail to file any registration statement
required to be filed pursuant to a request for registration under
Section 2(a) hereof, the Initiating Holder or Initiating
19
Holder Group requesting such registration shall have the right to
withdraw the request for registration. Any such withdrawal shall be
made by giving written notice to the Company within 20 days after
the date on which a registration statement would otherwise have been
required to have been filed with the Commission under Section 2(a)
hereof (i.e., 20 days after the date that is 90 days after the
conclusion of the period within which requests for registration may
be given to the Company pursuant to Section 2(a)(ii), or, if, as of
such 90th day, the Company does not have the financial statements
required to be included in the registration statement, 30 days after
the receipt by the Company from its independent public accountants
of such financial statements). In the event of such withdrawal, the
request for registration shall not be counted for purposes of
determining the number of registrations to which Holders are
entitled pursuant to Section 2(a) hereof. The Company shall pay all
Expenses incurred in connection with a request for registration
withdrawn pursuant to this Section 8.
(b) The Company shall not be obligated to file any registration
statement, or file any amendment or supplement to any registration
statement, and may suspend any Selling Holder's rights to make sales
pursuant to any effective registration statement, at any time when
the Company, in the good faith and reasonably informed judgment of
its Board of Directors, determines that the filing thereof at the
time requested, or the offering of securities pursuant thereto,
would adversely affect a pending or proposed Public Offering of the
Company's securities, a material financing, or a material
acquisition, merger, recapitalization, consolidation, reorganization
or similar transaction, or negotiations, discussions or pending
proposals with respect thereto. The Company shall promptly give the
Selling Holders written notice that such determination has been made
by the Board of Directors and (if known) an estimate of the
anticipated duration of the delay. The filing of a registration
statement, or any amendment or supplement thereto, by the Company
cannot be deferred, and any Selling Holder's rights to make sales
pursuant to an effective registration statement cannot be suspended,
pursuant to the provisions of this Section 8(b) for more than 15
days after the abandonment or consummation of any of the foregoing
proposals or transactions. The Company may so defer or suspend the
use of any registration statement on not more than three occasions
in a calendar year and for no more than a total of 90 days in a
calendar year; provided that, after deferring or suspending the use
of any registration statement, the Company may not again defer or
suspend the use of the registration statement until a period of 30
days has elapsed after resumption of the use of the registration
statement. The Company shall promptly notify each Selling Holder of
the expiration or earlier termination of such deferral or suspension
period. If the Company suspends any Selling Holder's rights to make
sales pursuant hereto, the applicable registration period shall be
extended by the number of days of such suspension.
9. Indemnification.
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to Sections 2(a) or
3 hereof, the Company agrees to indemnify
20
and hold harmless to the fullest extent permitted by law each Selling
Holder, each other Person, if any, who controls such Selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and their respective stockholders, directors, officers,
employees, partners, agents and Affiliates (each, a "Company Indemnitee"
for purposes of this Section 9(a)), against any losses, claims, damages,
liabilities, joint or several, actions or proceedings, whether commenced
or threatened, in respect thereof and whether or not such Company
Indemnitee is a party thereto, and expenses, including, without
limitation, the reasonable fees, disbursements and other charges of legal
counsel and reasonable costs of investigation and defense, to which such
Company Indemnitee may become subject under the Securities Act or
otherwise (collectively, a "Loss" or "Losses"), insofar as such Losses
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such securities were registered or otherwise offered or sold
under the Securities Act or otherwise, any preliminary prospectus, final
prospectus or summary prospectus related thereto, any amendment or
supplement thereto, any exhibits to the registration statement or
documents or other information incorporated by reference into such
registration statement or prospectus (collectively, the "Offering
Documents"), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances in which they were
made not misleading, or any violation by the Company of any federal or
state law, rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with any such
registration; provided, however, the Company shall not be liable to any
Company Indemnitee in any such case to the extent that any such Loss
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Offering Documents
in reliance upon and in conformity with information furnished by such
Company Indemnitee to the Company in a writing duly executed by such
Company Indemnitee specifically stating that it is expressly for use
therein; provided further that, the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of
Registrable Common Stock or any other Person, if any, who controls
(within the meaning of the Exchange Act) such underwriter, in any such
case to the extent that any such Loss arises out of such Person's failure
to send or give a copy of the final prospectus (including any documents
incorporated by reference therein), as the same may be then supplemented
or amended, to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Common Stock to such Person if
such statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnitee and shall
survive the transfer of such securities by such Company Indemnitee.
(b) Indemnification by the Offerors and Sellers. In connection with
any registration statement filed by the Company pursuant to Sections 2(a)
or 3 hereof in which a Selling Holder has registered for sale Registrable
Common Stock, each such Selling Holder, severally and not jointly, agrees
to indemnify and hold harmless to the fullest extent permitted by law the
Company and each of its directors, officers, employees, agents, partners,
stockholders, Affiliates and each other Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20
21
of the Exchange Act and each other seller and such seller's directors,
officers, employees, agents, partners, stockholders, Affiliates and each
other Person, if any, who controls the seller within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each,
a "Holder Indemnitee" for purposes of this Section 9(b)), against all
Losses insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Documents or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in the light of circumstances in which they were made
not misleading, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with information furnished by such Selling Holder to the Company in
writing duly executed by such Selling Holder specifically stating that it
is expressly for use therein; provided, however, that the liability of
such indemnifying party under this Section 9(b) shall be limited to the
amount of the net proceeds received by such indemnifying party in the
sale of Registrable Common Stock giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Holder Indemnitee and shall
survive the transfer of such securities by such indemnifying party.
(c) Notices of Losses, etc.. Promptly after receipt by an
indemnified party of written notice of the commencement of any action or
proceeding involving a Loss referred to in Sections 9(a) and (b), such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Sections 9(a) and (b), except
to the extent that the indemnifying party is materially and actually
prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party shall be
entitled to participate in and, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such Loss, to assume and
control the defense thereof, in each case at its own expense, jointly
with any other indemnifying party similarly notified, to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified
party, and after its assumption of the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation, unless in
such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties arises in respect of
such claim after the assumption of the defense thereof. No indemnifying
party shall be liable for any settlement of any such action or proceeding
effected without its written consent, which shall not be unreasonably
withheld. No indemnifying party shall, without the consent of the
indemnified party (which consent shall not be unreasonably withheld),
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of such Loss or which requires action on the part of such
indemnified party or otherwise subjects the indemnified party to any
obligation or restriction to which it would not otherwise be subject.
(d) Contribution. If the indemnification provided for in this
Section 9 shall for any reason be unavailable to an indemnified party
under Sections 9(a) or (b) in respect of any Loss, then, in lieu of the
amount paid or payable under Sections 9(a) or (b), the indemnified party
and the indemnifying party under Sections 9(a) or (b) shall contribute to
the aggregate Losses (including legal or other expenses reasonably
incurred in connection with investigating the same) (i) in such
proportion as is appropriate to reflect the relative fault of the Company
and the prospective Selling Holders which resulted in such Loss or action
in respect thereof, with respect
22
to the statements, omissions or actions which resulted in such Loss or
action in respect thereof, as well as any other relevant equitable
considerations, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company, on
the one hand, and such prospective Selling Holders, on the other hand,
from their sale of Registrable Common Stock; provided that, for purposes
of this clause (ii), the relative benefits received by the prospective
Selling Holders shall be deemed not to exceed the net proceeds received
by such Selling Holders. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The obligations, if any, of the Selling
Holders to contribute as provided in this Section 9(d) are several in
proportion to the relative value of their respective Registrable Common
Stock covered by such registration statement and not joint. In addition,
no Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or Loss effected without such
Person's consent (provided that such consent shall not be unreasonably
withheld).
(e) Other Indemnification. The Company and each Holder who has
registered for sale shares of its Registrable Common Stock shall, with
respect to any required registration or other qualification of securities
under any Federal or state law or regulation of any governmental
authority other than the Securities Act, indemnify Holder Indemnitees and
Company Indemnitees, respectively, against Losses, or, to the extent that
indemnification shall be unavailable to a Holder Indemnitee or Company
Indemnitee, contribute to the aggregate Losses of such Holder Indemnitee
or Company Indemnitee in a manner similar to that specified in the
preceding subsections of this Section 9 (with appropriate modifications).
(f) Indemnification Payments. The indemnification and contribution
required by this Section 9 shall be made by periodic payments of the
amount thereof during the course of any investigation or defense, as and
when any Loss is incurred and is due and payable.
10. Permitted Securities. The Company's Board of Directors is expressly
permitted to enter into agreements which provide to any holder of newly issued
shares of the Company's Common Stock rights, which are either pari passu or
senior to any Holder's rights under this Agreement, with respect to the
registration of such Common Stock under the Securities Act; provided that, the
performance of the obligations of the Company pursuant to such agreement shall
not violate or directly conflict with any of the rights provided to the
Holders or the obligations of the Company under this Agreement; provided,
however, such Common Stock was issued in connection with an acquisition
consummated by the Company or a new equity investment made by such holder in
the Company; provided further that, the registration rights shall only relate
to the Common Stock issued in connection with such acquisition or investment
and not to all of the Company's Common Stock owned from time to time by the
holders thereof. Except as expressly authorized in this Section 10, the
Company shall not grant any registration rights to any Person which are pari
passu or senior to the registration rights granted hereby, without the prior
consent of the Holders owning a majority of the Registrable Common Stock then
outstanding.
11. Adjustments Affecting Registrable Common Stock. In the event of a
reorganization, recapitalization, stock split, reverse stock split, stock
dividend, combination of shares, merger, consolidation, distribution of
assets, or any other change in the corporate structure or securities
23
of the Company, the Company shall make such equitable adjustments as it deems
appropriate in the number and kind of shares of Registrable Common Stock held
by the Holders.
12. Rule 144 and Rule 144A. The Company shall take all actions necessary to
enable Holders to sell Registrable Common Stock without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time,
(ii) Rule 144A under the Securities Act, as such Rule may be amended from time
to time, or (iii) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed under the Exchange
Act. Upon the written request of any Holder, the Company shall deliver to such
Holder a written statement as to whether the Company has complied with such
requirements.
13. Amendments and Waivers. Any provision of this Agreement may be amended,
modified or waived if, but only if, the written consent to such amendment,
modification or waiver has been obtained from (i) except as provided in
clauses (ii) and (iii) below, the Holder or Holders of at least a majority of
the shares of Registrable Common Stock then outstanding and held by all
Holders, (ii) in the case of any amendment, modification or waiver of any
provision of Section 4 or Section 9 hereof or this Section 13 or any
provisions as to the number of requests for registration to which holders of
Registrable Common Stock are entitled under Section 2 or Section 3 hereof, the
written consent of each Holder so affected, or (iii) in the case of any other
amendment, modification or waiver which materially and adversely alters any
right and/or obligation under this Agreement of any Holder, the Holder or
Holders of at least 75% of the shares of Registrable Common Stock then
outstanding and held by all Holders.
14. Nominees for Beneficial Owners. In the event that any Registrable Common
Stock is held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election in writing delivered to the Company, be
treated as the Holder of such Registrable Common Stock for purposes of any
request or other action by any Holder or Holders pursuant to this Agreement or
any determination of the number or percentage of shares of Registrable Common
Stock held by any Holder or Holders contemplated by this Agreement. If the
beneficial owner of any Registrable Common Stock so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Common Stock.
15. Assignment. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Any Holder may assign to any Transferee (as
permitted under applicable law) of its Registrable Common Stock its rights and
obligations under this Agreement; provided that, each of the following
conditions must be satisfied prior to any Transfer: (i) such Transferee shall
agree in writing by executing a written joinder agreement in the form attached
hereto as Schedule A (the "Joinder Agreement") prior to the Transfer to be
bound by this Agreement as if it were an original party hereto; and (ii) after
giving effect to the Transfer, the Transferee would be a 10% Holder, whereupon
such assignee shall for all purposes be deemed to be a Holder under this
Agreement. Except as provided above or otherwise permitted by this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any Holder without the
prior written consent of the other parties hereto. The Company may not assign
this Agreement or any right, remedy, obligation or liability arising hereunder
or by reason hereof.
24
16. Restrictions on Transfer. Each certificate held by a 10% Holder on the
Effective Date shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON DECEMBER [__], 2003 PURSUANT TO THE
JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE OF NRG ENERGY, INC. (THE "COMPANY") AND
CERTAIN OF ITS SUBSIDIARIES, DATED AS OF OCTOBER 10, 2003
AND CONFIRMED BY THE BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK ON NOVEMBER 24, 2003. THESE
SECURITIES WERE ISSUED PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENT OF SECTION 5 OF THE SECURITIES
ACT OF 1933, AS AMENDED, (THE "ACT") PROVIDED BY SECTION
1145 OF THE BANKRUPTCY CODE, 11 U.S.C. ss. 1145, AND HAVE
NOT BEEN REGISTERED UNDER THE ACT, AND TO THE EXTENT THAT
THE HOLDER OF THESE SECURITIES IS AN "UNDERWRITER," AS
DEFINED IN SECTION 1145(b)(1) OF THE BANKRUPTCY CODE,
THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER."
Upon the delivery by a 10% Holder to the Company of an opinion of counsel
satisfactory to the Company that the securities represented thereby are no
longer subject to the restrictions set forth in ss.1145(b) of the Bankruptcy
Code, the Company shall remove such legend on all such certificates held by
such 10% Holder.
17. Notice of Transfer. Upon the request of the Company at any time and from
time to time, each Original Holder, each Holder of Registrable Common Stock
and each party to this Agreement shall promptly (and in any event within 8
Business Days) provide a written certification to the Company of (a) the
number of shares of Common Stock owned beneficially or of record by such
Person and each of its Affiliates, and (b) for requests sent by the Company
within 60 days after the expiration of a Holdback Period and referring to such
Holdback Period, its compliance with the Equity Transfer restrictions set
forth in Section 6(d), including information regarding each Equity Transfer
made by such Person during such Holdback Period (including, without
limitation, the dates of each such Equity Transfer).
18. Calculation of Percentage or Number of Shares of Registrable Common Stock.
For purposes of this Agreement, all references to a percentage or number of
shares of Registrable Common Stock or Common Stock shall be calculated based
upon the number of shares of Registrable Common Stock or Common Stock, as the
case may be, outstanding at the time such calculation is made and shall
exclude any Registrable Common Stock or Common Stock, as the case may be,
owned by the Company or any subsidiary of the Company. For the purposes of
25
calculating any percentage or number of shares of Registrable Common Stock or
Common Stock as contemplated by the previous sentence, the terms "10% Holder,"
"Holder," "Initiating Holder" and "Original Holder" shall include all
Affiliates thereof owning any shares of Registrable Common Stock or Common
Stock.
19. Termination of Registration Rights. The Company's obligations under
Sections 2(a) and 3 hereof to register Common Stock for sale under the
Securities Act shall terminate on the fourth anniversary of the Effective
Date; provided, however, that if on such fourth anniversary any Holder is a
10% Holder, the Company's obligations hereunder shall continue solely with
respect to such 10% Holder and shall terminate when such Holder ceases to be a
10% Holder; provided further that, if the Company defers any registration
and/or suspends any Selling Holder's rights to make sales pursuant to Section
8(b), the Company's obligations under Sections 2(a) and (3) to register
Registrable Common Stock for sale under the Securities Act shall be extended
by the total number of days of all such deferrals and suspensions. In
addition, the Company's obligations under this Agreement shall cease with
respect to any Person when such Person (i) ceases to be a Holder or (ii)
delivers to the Company a Withdrawal Notice (as hereinafter defined) in
accordance with the provisions of this Section 19. Any Holder may elect, at
any time and from time to time, to cause all (but not less than all) of the
Registrable Common Stock held by such Holder not to be subject to this
Agreement by delivery of a written notice to the Company (a "Withdrawal
Notice"). Upon receipt of a Withdrawal Notice, all such shares shall no longer
be deemed to be Registrable Common Stock and such Holder shall no longer be
bound by or entitled to the benefits of this Agreement; provided that (except
as provided below), no Holder may deliver a Withdrawal Notice during the
period commencing on the date on which the Company sends such Holder written
notice of its intention to effect a registration pursuant to Sections 2 or 3
hereof and until the earlier of (y) 180 days after the effective date of such
registration or (z) the date on which the Company shall, in accordance with
Sections 3 or 8 hereof, not register any securities with respect to which it
had given written notice of its intention to register to such Holder.
Notwithstanding any of the foregoing, (i) the Company's obligations under
Sections 4 and 9, (ii) the Holders' obligations under Section 7 and (iii) both
the Company and the Holders' obligations under Section 6(d) with respect to
any registration under either Section 2(a) or Section (3) which commences
prior to the termination of this Agreement shall survive in accordance with
their terms.
20. Miscellaneous.
(a) Further Assurances. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may be reasonably
required or advisable to carry out the provisions of this Agreement and the
transactions contemplated hereby.
(b) Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(c) Conflicting Instructions. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to
the same Registrable Common Stock, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Common Stock.
26
(d) Remedies. Each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The parties hereto
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
the parties hereto hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(e) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, and there are no restrictions, promises, representations, warranties,
covenants, or undertakings with respect to the subject matter hereof, other
than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties hereto
with respect to the subject matter hereof.
(f) Notices. Any notices or other communications to be given hereunder by
any party to another party shall be in writing and shall be delivered
personally, by telecopy, by certified or registered mail, postage prepaid,
return receipt requested, or by Federal Express or other comparable delivery
service, as follows: (i) if to the Company, to:
NRG Energy, Inc.
Attention: General Counsel
901 Marquette Avenue
Minneapolis, Minnesota 55402
Tel: (612) 373-5300
Fax: (612) 373-5392
with a copy to:
Kirkland & Ellis LLP
Attention: Margaret A. Gibson, P.C.
200 East Randolph Drive
Chicago, Illinois 60601
Tel: (312) 861-2000
Fax: (312) 861-2200
(ii) if to a Holder, to the address of such Holder as set forth in the
signature pages hereto, or (iii) to such other address as the party to whom
notice is to be given may provide in a written notice to the other parties
hereto, a copy of which shall be on file with the Secretary of the Company.
Notice shall be effective when delivered if given personally, when receipt is
acknowledged if telecopied, three days after mailing if given by registered or
certified mail as described above, and one Business Day after deposit if given
by Federal Express or comparable delivery service.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
27
(h) Severability. Notwithstanding any provision of this Agreement,
neither the Company nor any other party hereto shall be required to take any
action which would be in violation of any applicable Federal or state
securities law. The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of any other provision of this Agreement in such jurisdiction
or the validity, legality or enforceability of this Agreement, including any
such provision, in any other jurisdiction, it being intended that all rights
and obligations of the parties hereunder shall be enforceable to the fullest
extent permitted by law.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
NRG ENERGY, INC.
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
HOLDER:
By: _______________________________________
Name: _________________________________
Title: ________________________________
Number of Shares of Common Stock Owned:
_______________________________________
Address: ______________________________
_______________________________________
_______________________________________
Telephone No.: ________________________
Facsimile No.: ________________________
SCHEDULE A
REGISTRATION RIGHTS AGREEMENT
Joinder Agreement
The undersigned is executing and delivering this Joinder Agreement
pursuant to the Registration Rights Agreement dated as of ____________ (as the
same may hereafter be amended, the "Agreement"), among NRG Energy, Inc., a
Delaware corporation (the "Company"), and the other persons named as parties
therein. Capitalized terms used herein and not defined herein have the
meanings set forth in the Agreement.
By executing and delivering this Joinder Agreement to the Company,
the undersigned hereby agrees to become a party to, to be bound by, and to
comply with the provisions of the Agreement in the same manner as if the
undersigned were a Holder of Registrable Common Stock as an original signatory
to the Agreement, and the undersigned's ____ shares of Common Stock shall be
included as Registrable Common Stock under the Agreement.
Accordingly, the undersigned has executed and delivered this Joinder
Agreement as of the ___ day of ____________, 200__.
HOLDER:
By: _______________________________________
Name: _________________________________
Title: ________________________________
Number of Shares of Common Stock Owned:
_______________________________________
Address: ______________________________
_______________________________________
_______________________________________
Telephone No.: ________________________
Facsimile No.: ________________________
