EXHIBIT 4(f)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated July 15, 2003,
is made between TXU Corp., a Texas corporation (the "Company"), and Credit
Suisse First Boston LLC, as representative (the "Representative") of the initial
purchasers (the "Initial Purchasers") listed on Schedule I to the Purchase
Agreement, dated July 9, 2003, between the Company and the Representative on
behalf of the Initial Purchasers (the "Purchase Agreement").
This Agreement is made pursuant to the Purchase Agreement, which provides
for the sale by the Company to the Initial Purchasers of an aggregate of
$475,000,000 principal amount of the Company's Floating Rate Convertible Senior
Notes due 2033 (the "Firm Notes") and the granting by the Company to the Initial
Purchasers of the option to purchase $65,000,000 additional principal amount of
such Floating Rate Convertible Senior Notes (the "Option Notes" and, together
with the Firm Notes, the "Notes"). The Notes are convertible into Shares (as
defined in Section 1) at the initial conversion price set forth in the Offering
Memorandum, dated July 9, 2003, relating to the offering of the Notes, subject
to adjustment in accordance with the Indenture (For Unsecured Debt Securities
Series N) relating to the Notes, dated as of July 1, 2003, between the Company,
as issuer, and The Bank of New York, as trustee (the "Trustee"), as the same may
be amended from time to time in accordance with the terms thereof, as
supplemented by an Officer's Certificate, to be dated as of July 15, 2003 (said
Indenture, as supplemented by said Officer's Certificate, the "Indenture"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Applicable Conversion Price" shall mean, as of any date of
determination, $1,000 principal amount of Notes as of such date of determination
divided by the Conversion Rate in effect as of such date of determination or, if
no Notes are then outstanding, the Conversion Rate that would be in effect were
Notes then outstanding.
"Additional Amounts" shall have the meaning set forth in Section
2.4(A).
"Additional Amounts Payment Date" shall have the meaning set forth in
Section 2.4(B).
"Business Day" shall mean a day other than (i) a Saturday or a Sunday,
(ii) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Trustee's
principal corporate trust office is closed for business.
"Company" shall have the meaning set forth in the preamble of this
Agreement and shall also include the Company's successors.
"Conversion Rate" shall have the meaning assigned to such term in the
Indenture.
"Depositary" shall mean The Depository Trust Company, or any other
depositary for the Securities appointed by the Company; provided, however, that
such depositary must have an address in the Borough of Manhattan, in The City of
New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Firm Closing Date" shall mean the date on which the Firm Notes are
issued.
"Firm Notes" shall have the meaning set forth in the preamble of this
Agreement.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become owners of Registrable Securities.
"Indenture" shall have the meaning set forth in the preamble of this
Agreement.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Initial Shelf Registration Statement" shall mean the Shelf
Registration Statement required to be filed by the Company pursuant to the first
sentence of Section 2.1(A).
"Majority Holders" shall mean, on any date, Holders of a majority of
the outstanding Shares constituting Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company and other obligors on the Securities or any Affiliate (as defined in the
Indenture) of the Company or other obligor shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage amount. For the purposes of this definition, Holders of Notes
constituting Registrable Securities shall be deemed to be Holders of the number
of Shares into which such Notes are or would be convertible as of such date.
"NASD" shall mean the National Association of Securities Dealers Inc.
"Notes" shall have the meaning set forth in the preamble of this
Agreement.
"Notice and Questionnaire" shall mean a written notice delivered to
the Company substantially in the form attached as Appendix I to the Offering
Memorandum.
"Notice Holder" shall mean, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company with respect to either the Initial
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Shelf Registration Statement or the Subsequent Registration Statement, as the
case may be, on or prior to such date in accordance with Section 2.1(B).
"Option Closing Date" shall mean the date on which any Option Notes
are issued.
"Option Notes" shall have the meaning set forth in the preamble of
this Agreement.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including
any such prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement,
and by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when (i) a Shelf
Registration Statement with respect to such Securities shall have been declared
effective under the Securities Act and such Securities shall have been disposed
of pursuant to such Shelf Registration Statement, (ii) such Securities shall
have been sold to the public pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the Securities Act, or (iii) such
Securities shall have ceased to be outstanding.
"Registration Default" shall have the meaning set forth in Section
2.4(A).
"Registration Expenses" shall mean any and all expenses incident to
the performance of or the compliance by the Company with this Agreement,
including, without limitation: (i) all SEC or NASD registration and filing fees;
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities) and compliance with the
rules of the NASD in an amount not exceeding $15,000 in the aggregate, (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Shelf Registration Statement, any Prospectus and
any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any Shelf Registration Statement, any
Prospectus and any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
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letters required by or incident to such performance and compliance, (vi) the
fees and expenses of the Trustee, and any paying agent, exchange agent or
custodian, (vii) the reasonable fees and disbursements of Pillsbury Winthrop
LLP, as counsel to the Initial Purchasers and the Holders; (viii) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any national securities exchange or exchanges or
automated quotation system and (ix) the reasonable fees and expenses of any
special experts retained by the Company in connection with any Registration
Statement.
"SEC" shall mean the United States Securities and Exchange Commission
or any successor agency or governmental body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities" shall mean collectively the Notes and the Shares.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shares" shall mean the shares of common stock of the Company, without
par value, together with the preference stock purchase rights attached thereto,
into which the Notes are convertible or that have been issued upon any
conversion of the Notes into common stock of the Company.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.1.
"Shelf Registration Statement" shall mean the Initial Shelf
Registration Statement and/or the Subsequent Shelf Registration Statement, if
any, each of which shall be a "shelf" registration statement of the Company
pursuant to the provisions of Section 2.1 that covers all of the Registrable
Securities of the applicable Notice Holders on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Subsequent Shelf Registration Statement" shall mean the one
additional Shelf Registration Statement that may be required to be filed
pursuant to Section 2.1(B).
"Suspension Period" shall have the meaning set forth in Section
2.1(A).
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall have the meaning set forth in the preamble of
this Agreement.
2. Registration Under the Securities Act.
2.1 Shelf Registration.
(A) The Company agrees to use its reasonable efforts to file under the
Securities Act within 120 days after the Firm Closing Date the Initial
Shelf Registration Statement providing for the registration of, and the
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sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities, pursuant to Rule 415 under the Securities Act or
any similar rule that may be adopted by the SEC. The Company agrees to use
its reasonable efforts to cause the Initial Shelf Registration Statement to
become or be declared effective within 180 days after the Firm Closing Date
and to keep the Initial Shelf Registration Statement and the Subsequent
Shelf Registration Statement, if any, continuously effective until the
earliest of (i) the date on which all Registrable Securities covered by
such Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement, (ii) the date on which all Registrable Securities
have been sold pursuant to Rule 144 under the Securities Act, (iii) such
time as there are no longer any Registrable Securities outstanding, and
(iv) the second anniversary of the later of the Firm Closing Date or the
latest Option Closing Date (plus, in each case, the aggregate number of
days in all Suspension Periods); provided, however, that the Company shall
not be obligated to keep the Shelf Registration Statement effective or to
permit the use of any Prospectus forming a part of the Shelf Registration
Statement if (i) the Company determines, in its reasonable judgment, upon
advice of counsel that the continued effectiveness and use of the Shelf
Registration Statement would (x) require the disclosure of material
information which the Company has a bona fide business reason for
preserving as confidential or (y) interfere with any financing,
acquisition, corporate reorganization or other material transaction
involving the Company or any of its subsidiaries; and (ii) the Company
promptly thereafter complies with the requirements of Section 3(J), if
applicable; any such period during which the Company is excused from
keeping the Shelf Registration Statement effective and usable for offers
and sales of Registrable Securities is referred to herein as a "Suspension
Period"; a Suspension Period shall commence on and include the date that
the Company gives notice to the Holders that the Shelf Registration
Statement is no longer effective or the Prospectus included therein is no
longer usable for offers and sales of Registrable Securities as a result of
the application of the proviso of the foregoing sentence, stating the
reason therefor, and shall end on the earlier to occur of the date on which
each seller of Registrable Securities covered by the Shelf Registration
Statement either receives the copies of the supplemented or amended
Prospectus or is advised in writing by the Company that use of the
Prospectus may be resumed.
(B) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with
this Section 2.1(B) and the last paragraph of Section 3. To be named a
selling holder in the Initial Shelf Registration Statement when it first
becomes effective, Holders must deliver a Notice and Questionnaire to the
Company at least five (5) Business Days prior to the date of effectiveness
of such Shelf Registration Statement. To be named a selling shareholder in
the Subsequent Shelf Registration Statement when it first becomes
effective, Holders must have acquired Registrable Securities no earlier
than the tenth Business Day prior to the date of effectiveness of the
Initial Shelf Registration Statement, must not be named as selling security
holders in the Initial Shelf Registration Statement, including through an
amendment thereto or a supplement to the prospectus, and must complete and
deliver a Notice and Questionnaire to the Company, together with such other
information as may be reasonably requested by the Company, no later than
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the fifth Business Day after the date of effectiveness of the Initial Shelf
Registration Statement. From and after the date a Shelf Registration
Statement is declared effective, the Company shall, as promptly as is
practicable after the date a Notice and Questionnaire is delivered, and in
any event within five (5) Business Days after such date, (i) if required by
applicable law, file with the SEC a post-effective amendment to such Shelf
Registration Statement or prepare and, if required by applicable law, file
a supplement to the related Prospectus or an amendment or supplement to any
document incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire is
named as a selling holder in such Shelf Registration Statement and the
related Prospectus and so that such Holder is permitted to deliver any such
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to
such Shelf Registration Statement, use reasonable efforts to cause such
post-effective amendment to be declared effective under the Act as promptly
as is practicable; (ii) provide such Holder copies of any documents filed
pursuant to Section 2.1(B)(i); and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Act of any post-effective
amendment filed pursuant to Section 2.1(B)(i); provided, that if such
Notice and Questionnaire is delivered during a Suspension Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i), (ii) and (iii) above
upon expiration of the Suspension Period. Notwithstanding anything
contained herein to the contrary, the Company shall be under no obligation
to name any Holder that is not a Notice Holder as a selling holder in such
Shelf Registration Statement or related Prospectus; provided, however, that
any Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2.1(B) (whether or not such Holder was a Notice Holder at the time
the applicable Shelf Registration Statement was declared effective) shall
be named as a selling holder in the applicable Shelf Registration Statement
or related Prospectus in accordance with the requirements of this Section
2.1(B).
(C) The Company shall not permit any securities other than Registrable
Securities to be included in a Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend a Shelf Registration
Statement, as required by Section 3(B), and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
2.2 Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 and the performance of
its obligations under Sections 2.1 and 3. Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
2.3 Effectiveness.
(A) The Company will be deemed not to have used its reasonable efforts
to cause a Shelf Registration Statement to become, or to remain, effective
during the requisite period if the Company voluntarily takes any action
that would, or omits to take any action (other than any action specifically
permitted by Section 2.1(A) ) which omission would, result in any such
Shelf Registration Statement not being declared effective or in the Holders
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of Registrable Securities covered thereby not being able to offer and sell
such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action or omission is required by
applicable law.
(B) A Shelf Registration Statement pursuant to Section 2.1 will not be
deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been declared effective,
the offering of Registrable Securities pursuant to a Shelf Registration
Statement is interfered with by any stop order, injunction or other order
or requirement of the SEC or any other governmental agency or court, such
Shelf Registration Statement will be deemed not to have become effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Shelf Registration Statement may legally
resume.
2.4 Additional Amounts.
(A) If any of the following events (any such event a "Registration
Default") shall occur, then additional amounts (the "Additional Amounts")
shall become payable to Holders in respect of the Securities:
(i) the Initial Shelf Registration Statement has not been filed
with the SEC within 120 days following the Firm Closing Date;
(ii) the Initial Shelf Registration Statement is not declared
effective by the SEC within 180 days following the Firm Closing Date;
(iii) the Initial Shelf Registration Statement has been declared
effective but such Shelf Registration Statement ceases to be effective
or usable in connection with resales of Notes at any time prior to the
expiration of the period of two years (or such shorter period as may
hereafter be provided in Rule 144(k) under the Securities Act (or
similar successor rule)) commencing on the Firm Closing Date (other
than after such time as all Notes have been disposed of thereunder or
otherwise cease to be Registrable Securities); or
(iv) the aggregate duration of Suspension Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 2.1(A).
Additional Amounts shall be payable at a rate of 0.25% per annum on the
principal amount of the outstanding Notes that are Registrable
Securities and on the Applicable Conversion Price of any outstanding
Shares that are Registrable Securities and shall accrue from and
including the date on which any such Registration Default shall occur
to but excluding the date on which all such Registration Defaults have
been cured, or if earlier, the date on which all the Notes may first be
resold in reliance on Rule 144(k) under the Securities Act.
(B) Additional Amounts on the Securities, if any, will be payable in
cash on January 15, April 15, July 15 and October 15 of each year (the
"Additional Amounts Payment Date") to holders of record of outstanding
Registrable Securities on each preceding January 1, April 1, July 1 and
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October 1, respectively. The date of determination of the Applicable
Conversion Price of any outstanding Shares that are Registrable Securities
shall be the Business Day immediately preceding the Additional Amounts
Payment Date; provided, however, that any Additional Amounts accrued with
respect to any Notes or portion thereof called for redemption on a
redemption date or purchased on a purchase date or converted into Shares on
a conversion date prior to the Registration Default shall, in any such
event, be paid instead to the Holder who submitted such Notes or portion
thereof for redemption, purchase or conversion on the applicable redemption
date, purchase date or conversion date, as the case may be, on such date
(or promptly following the conversion date, in the case of conversion), and
shall continue to accrue on the Shares issuable upon conversion of any
Notes to the extent such Registration Default has not yet been cured.
The Trustee shall be entitled, on behalf of Holders of Securities, to
seek any available remedy for the enforcement of this Agreement, including
for the payment of any Additional Amounts. Notwithstanding the foregoing,
the parties agree that the sole monetary damages payable for a violation of
the terms of this Agreement with respect to which Additional Amounts are
expressly provided shall be as set forth in this Section 2.4 in addition to
any remedies available to the Holders of the Securities under the
Indenture.
2.5 Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2.1 through
2.4 may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Sections 2.1 through 2.4.
3. Registration Procedures. In connection with the obligations of the
Company with respect to a Shelf Registration Statement pursuant to Section 2.1,
the Company shall:
(A) prepare and file with the SEC a Shelf Registration Statement,
within the relevant time period specified in Section 2, on the
appropriate form under the Securities Act, which form shall (i) be
selected by the Company, (ii) be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) comply
as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated
by reference therein, use its reasonable efforts to cause such Shelf
Registration Statement to become effective and remain effective in
accordance with Section 2, and include the names of the Notice Holders
as selling securityholders.
(B) use reasonable efforts to cause (i) the Shelf Registration
Statement and any amendment thereto, when it becomes effective, not to
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) subject to Section 2.1(C),
any Prospectus forming part of the Shelf Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from
time to time), not to include an untrue statement of a material fact
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or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(C) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary under applicable law to keep such Shelf Registration
Statement effective for the applicable period; and cause each
Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Securities Act and comply
with the provisions of the Securities Act, the Exchange Act and the
rules and regulations thereunder applicable to them with respect to
the disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution reasonably requested by the selling
Holders thereof;
(D) (i) notify each Notice Holder, at least three (3) Business
Days prior to filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising such Notice
Holders that the distribution of Registrable Securities will be made
in accordance with the methods reasonably requested by the Majority
Holders participating in the Shelf Registration and as set forth in
the Notices and Questionnaires, (ii) furnish to each Notice Holder and
to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto, and such other documents as such Notice Holder or underwriter
may reasonably request, including financial statements and schedules
and, if the Notice Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable
Securities, (iii) hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto, save and except during any Suspension Period and
(iv) furnish to each Notice Holder either a summary of the terms of
this Agreement or a copy of this Agreement;
(E) use its reasonable efforts to register or qualify the
Registrable Securities under such state securities or blue sky laws of
such jurisdictions as any Notice Holder and each underwriter of an
underwritten offering of Registrable Securities shall reasonably
request by the time such Shelf Registration Statement is declared
effective by the SEC, and do any and all other acts and things which
may be reasonably necessary or advisable to enable each such Notice
Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Notice
Holder; provided, however, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(E), (ii) take any action which would subject it
to general service of process or taxation in any such jurisdiction
where it is not then so subject, or (iii) file annual reports or
comply with any other requirements deemed in its reasonable judgment
to be unduly burdensome;
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(F) notify promptly each Notice Holder and, if requested by such
Notice Holder, confirm such advice in writing promptly (i) when such
Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to such Shelf Registration
Statement and Prospectus or for additional information after such
Shelf Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of such Shelf Registration
Statement or the initiation of any proceedings for that purpose, (iv)
if, between the effective date of the Shelf Registration Statement and
the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects, (v) of the happening of any event or
the discovery of any facts during the period the Shelf Registration
Statement is required to be effective which makes any statement made
in such Shelf Registration Statement or the related Prospectus untrue
in any material respect or which causes such Shelf Registration
Statement or Prospectus to omit to state a material fact necessary in
order to make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not
misleading, (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities, as the case may be, for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vii)
when the Company reasonably determines that a post-effective amendment
to the Shelf Registration Statement would be appropriate;
(G) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement
as soon as practicable;
(H) furnish to each Notice Holder, without charge, at least one
conformed copy of each Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference or all
exhibits thereto, unless requested);
(I) cooperate with the Notice Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold to the extent not held with the Depositary
through Cede & Co., to remove any restrictive legends, and enable such
Registrable Securities to be in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the
Notice Holders or the underwriters, if any, may reasonably request at
least two (2) Business Days prior to the closing of any sale of
Registrable Securities;
(J) upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(F)(ii), (iv), (v) and (vii)
and subject to the provisions of the first paragraph immediately
following Section 3(R), as promptly as practicable after the
occurrence of such an event, use its reasonable efforts to prepare and
file a supplement or post-effective amendment to the Shelf
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
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so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. At such
time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder of
such determination and to furnish each Notice Holder such number of
copies of the Prospectus, as amended or supplemented, as such Notice
Holder may reasonably request;
(K) obtain a CUSIP number for all Registrable Securities covered
by the Shelf Registration Statement not later than the effective date
of such Shelf Registration Statement, and provide the Trustee for the
Notes and the transfer agent for the Shares with printed certificates
for the Registrable Securities that are in a form eligible for deposit
with the Depositary;
(L) unless the Indenture, as its relates to the Registrable
Securities has already been so qualified, use its reasonable efforts
to (i) cause the Indenture to be qualified under the TIA in connection
with the registration of the Registrable Securities, as the case may
be, (ii) cooperate with the Trustee and the Notice Holders to effect
such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and (iii)
execute, and use its 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 SEC to
enable the Indenture to be so qualified in a timely manner;
(M) enter into agreements (including underwriting agreements) and
take all other customary and appropriate actions in order to expedite
or facilitate the disposition of such Registrable Securities and in
such connection whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the Notice
Holders and the underwriters, if any, in form, substance and
scope as has been customarily made by the Company to underwriters
in similar offerings of securities of the Company;
(ii) obtain opinions of counsel of the Company and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Majority Holders of the Registrable
Securities being sold, provided that such opinions may be in the
form of reliance letters) addressed to each Notice Holder and the
underwriters, if any, covering the matters customarily covered in
opinions requested in sales of securities or underwritten
offerings of the Company (it being agreed that the matters to be
covered by such opinions may be subject to customary
qualifications and exceptions);
11
(iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants (and, if
necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements are, or are required to
be, included in the Shelf Registration Statement) addressed to
the underwriters, if any, and use reasonable efforts to have such
letter addressed to the Notice Holders (to the extent consistent
with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accounts), such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters to underwriters in connection
with similar underwritten offerings of the Company;
(iv) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section; and
(v) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Majority Holders of the Registrable Securities
being sold and the managing underwriters, if any;
provided that the above shall be done at each closing under any
underwriting or, as and to the extent required thereunder and as
consistent with the terms of the Purchase Agreement;
(N) make available for inspection by representatives of the Notice
Holders, any underwriters participating in any disposition pursuant to a
Shelf Registration Statement, and any counsel or accountant retained by any
of the foregoing, all financial and other records, pertinent corporate
documents and properties of the Company reasonably requested by any such
persons, and cause the respective officers, directors, employees and any
other agents of the Company to supply all information reasonably requested
by any such representative, underwriter, counsel or accountant in
connection with the Shelf Registration Statement, and make such
representatives of the Company available for discussion of such documents
as shall be reasonably requested by the Initial Purchasers in order to
enable such persons to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that such
persons shall first agree in writing with the Company that any information
that is reasonably and in good faith designated by the Company in writing
as confidential at the time of delivery of such information shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of the Shelf Registration
Statement or the use of any Prospectus), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard such information by such persons or (iv) such
12
information becomes available to such persons from a source other than the
Company and its subsidiaries and such source is not known by such persons
to be bound by a confidentiality agreement; and provided, further, that the
foregoing inspection and information gathering shall be coordinated by (x)
the managing underwriter in connection with any underwritten offering
pursuant to a Shelf Registration and (y) the Notice Holder or Notice
Holders designated by the participating Majority Holders in connection with
any nonunderwritten offering pursuant to a Shelf Registration, together
with one counsel designated by and on behalf of such persons;
(O) a reasonable time prior to filing a Shelf Registration Statement,
any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Notice Holders, to the Initial
Purchasers, to counsel for the Notice Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any,
make such changes in any such document prior to the filing thereof as the
Initial Purchasers, the counsel to the Notice Holders or the underwriter or
underwriters reasonably request and not file any such document in a form to
which the Majority Holders of such Registrable Securities included in such
offering, the Initial Purchasers on behalf of the Notice Holders, counsel
for the Notice Holders or any underwriter shall not have previously been
advised and furnished a copy of or to which the Majority Holders of such
Registrable Securities included in such offering, the Initial Purchasers on
behalf of the Notice Holders, counsel to the Notice Holders or any
underwriter shall reasonably object (which objection shall be made within a
reasonable period of time), and make the representatives of the Company
available for discussion of such document as shall be reasonably requested
by the Notice Holders, the Initial Purchasers on behalf of such Notice
Holders, counsel for such Notice Holders or any underwriter;
(P) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(Q) use its reasonable efforts to cause the Shares to be listed on the
New York Stock Exchange, The Chicago Stock Exchange and the Pacific
Exchange, Inc.; and
(R) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules
and regulations of the NASD).
Each Notice Holder agrees that upon receipt of any notice from the
Company of (a) the happening of any event or the discovery of any facts, each of
the kind described in Sections 3(F)(ii), (iii), (iv), (v) or (vii) or (b) the
Company's determination, in its reasonable judgment, upon advice of counsel,
that the continued effectiveness and use of the Shelf Registration Statement or
the Prospectus included in the Shelf Registration Statement would (x) require
the disclosure of material information, which the Company has a bona fide
business reason for preserving as confidential, or (y) interfere with any
13
financing, acquisition, corporate reorganization or other material transaction
involving the Company or any of its subsidiaries, such Notice Holder will
forthwith discontinue disposition of Registrable Securities pursuant to such
Shelf Registration Statement or Prospectus until the receipt by such Notice
Holder of either copies of the supplemented or amended Prospectus contemplated
by Section 3(J), and, if so directed by the Company, such Notice Holder will
deliver to the Company (at its expense) all copies in its possession of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice, or notice in writing from the Company that such Notice Holder
may resume disposition of Registrable Securities pursuant to such Shelf
Registration Statement or Prospectus. If the Company shall give any such notice
described in clause (a) above to suspend the disposition of Registrable
Securities pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(F)(ii), (iii), (iv), (v) or (vii), the Company shall be deemed to
have used its reasonable efforts to keep such Shelf Registration Statement
effective during such Suspension Period; provided that the Company shall use its
reasonable efforts to file and have declared effective (if an amendment) as soon
as practicable an amendment or supplement to such Shelf Registration Statement.
The Company shall extend the period during which such Shelf Registration
Statement shall be maintained effective or the Prospectus shall be used pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of the notice described in clauses (a) and (b) above to and
including the date when the Notice Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions or
notification that they may resume such disposition under an existing Prospectus.
If any of the Registrable Securities covered by any Shelf Registration Statement
are to be sold in an underwritten offering, the underwriter or underwriters and
manager or managers that will manage such offering will be selected by the
Majority Holders of such Registrable Securities included in such offering and
shall be reasonably acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Each Holder agrees, by acquisition of the Registrable Securities, that
such Holder shall not be entitled to sell any of such Registrable Securities
pursuant to a Shelf Registration Statement, or to receive a Prospectus related
thereto, unless such Holder has furnished the Company with a Notice and
Questionnaire. Each Notice Holder agrees to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in such Shelf Registration Statement under
applicable law or pursuant to the SEC's comments, if any. Each Notice Holder
further agrees not to sell any Registrable Securities pursuant to such Shelf
Registration Statement without delivering, or causing to be delivered a
Prospectus to the purchaser thereof.
14
4. Indemnification; Contribution.
(A) The Company shall indemnify and hold harmless each Initial
Purchaser, each Holder, each underwriter who participates in an offering of
the Registrable Securities, and each Person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act (each
an "Indemnified Party") from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or any other statute or common law
and shall reimburse each such Indemnified Party for any legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) as and when incurred by them in connection with investigating any
such losses, claims, damages or liabilities or in connection with defending
any actions, insofar as such losses, claims, damages, liabilities, expenses
or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus, or in a
Shelf Registration Statement, or the 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 under which they
were made, not misleading; provided, however, that the indemnity agreement
contained in this Section 4 as to any Indemnified Party shall not apply to
any such losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Party expressly for
use in connection with the preparation of a Shelf Registration Statement or
the related Prospectus or any amendment or supplement to either thereof, or
arising out of, or based upon, statements in or omissions from the part of
the Shelf Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee under the TIA; and provided
further, that the indemnity agreement contained in this Section 4 with
respect to the related Prospectus or any amendment or supplement thereto
(if the Company shall have furnished any amendment or supplement thereto)
shall not inure to the benefit of any Indemnified Party on account of any
such losses, claims, damages, liabilities, expenses or actions arising from
the sale of Registrable Securities to any person if a copy of the related
Prospectus (exclusive of any documents incorporated by reference) shall not
have been given or sent to such person by or on behalf of such Indemnified
Party with or prior to the written confirmation of the sale involved
unless, with respect to the delivery of any amendment or supplement to the
Prospectus, the alleged omission or alleged untrue statement was not
corrected in such amendment or supplement at the time of such written
confirmation. The indemnity agreement of the Company contained in this
Section 4 shall remain operative and in full force and effect regardless of
any termination of this Agreement or of any investigation made by or on
behalf of any Indemnified Party, and shall survive the registration of the
Registrable Securities.
(B) Each Holder shall indemnify, defend and hold harmless the Company
and any underwriter and other selling Holder, and their respective
managers, officers and directors, and each person who controls the Company
or any underwriter or any other selling Holder within the meaning of
Section 15 of the Securities Act, from and against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
15
them may become subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees) as
and when incurred by them in connection with investigating any such losses,
claims, damages or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Shelf Registration Statement or
the related Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, if such statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of such Holder, expressly for use in connection with the
preparation of a Shelf Registration Statement or the related Prospectus or
any amendment or supplement to either thereof. The indemnity agreement of
the respective Holders contained in this Section 4 shall remain operative
and in full force and effect regardless of any termination of this
Agreement or of any investigation made by or on behalf of the Company, any
underwriter, or any other selling Holder, or their respective managers,
directors or officers, or any such controlling person, and shall survive
the registration of the Registrable Securities; provided, however, that, no
such Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to a Shelf Registration Statement.
(C) The Company and the Holders each shall, upon the receipt of notice
of the commencement of any action against it or any person controlling it
as aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom indemnity shall
be sought hereunder, but the failure to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or
parties from any liability hereunder to the extent such indemnifying party
or parties is/are not materially prejudiced as a result of such failure to
notify and in any event shall not relieve such indemnifying party or
parties from any liability that it or they may have to the indemnified
party otherwise than on account of such indemnity agreement. In case such
notice of any such action shall be so given, such indemnifying party shall
be entitled to participate at its own expense in the defense, or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and satisfactory to
the indemnified party or parties who shall be defendant or defendants in
such action, and such defendant or defendants shall bear the fees and
expenses of any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of such action,
such indemnifying party will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action (including
impleaded parties) include both the indemnified party and the indemnifying
party and counsel for the indemnifying party shall have reasonably
concluded that there may be a conflict of interest involved in the
representation by a single counsel of both the indemnifying party and the
indemnified party, the indemnified party or parties shall have the right to
16
select separate counsel, satisfactory to the indemnifying party, whose
reasonable fees and expenses shall be paid by such indemnifying party, to
participate in the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the indemnifying party
shall not be liable for the fees and expenses of more than one separate
counsel (in addition to local counsel) representing the indemnified parties
who are parties to such action). The Company and the Holders each agree
that without the other party's prior written consent, which consent shall
not be unreasonably withheld, it will not settle, compromise or consent to
the entry of any judgment in any claim in respect of which indemnification
may be sought under the indemnification provisions of this Agreement,
unless such settlement, compromise or consent (i) includes an unconditional
release of such other party from all liability arising out of such claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of such other party.
(D) If the indemnification provided for in subparagraph (a) or (b)
above shall be unenforceable under applicable law by an indemnified party,
each indemnifying party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities and expenses
for which each such indemnification provided for in subparagraph (a) or (b)
above shall be unenforceable, in such proportion as shall be appropriate to
reflect (i) the relative benefits received by each indemnifying party on
the one hand and the indemnified party on the other hand from the offering
of the Registrable Securities pursuant to this Agreement, (ii) if an
allocation solely on the basis provided by clause (i) is not permitted by
applicable law or is inequitable or against public policy, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of each
indemnifying party on the one hand and the indemnified party on the other
hand in connection with the statements or omissions which have resulted in
such losses, claims, damages, liabilities and expenses and (iii) any other
relevant equitable considerations; provided, however, that no indemnified
party guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the indemnified party
and each such party's relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and each of the Holders agree that it would not be just and
equitable if contributions pursuant to this paragraph (d) were to be
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does
not taken account of the equitable consideration referred to above.
Notwithstanding the provisions of this Section 4, no Holder shall be
required to contribute in excess of the amount equal to the excess of (i)
the net proceeds received by such Holder from the sale of Registrable
Securities by it to Eligible Holders, over (ii) the amount of any damages
which such Holder has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission. The
obligations of each Holder to contribute pursuant to this Section 4 are
several and not joint and shall not exceed the same proportion of all
contributions of Holders required hereunder as such Holder's Registrable
17
Securities sold pursuant to the Shelf Registration Statement is of the
total amount of Registrable Securities sold pursuant to the Shelf
Registration Statement.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company covenants that it will
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder. If the Company ceases to be so required to file such reports,
the Company covenants that it will upon the request of any Holder (A) make
publicly available such information as is necessary to permit sales of such
Holder's Registrable Securities pursuant to Rule 144 under the Securities Act,
(B) deliver such information to a prospective purchaser as is necessary to
permit sales of such Holder's Registrable Securities pursuant to Rule 144A under
the Securities Act and (C) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities 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 SEC.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
5.2 No Inconsistent Agreements. The Company has not entered into and
the Company will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company's other issued
and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Majority Holders affected by such amendment, modification, supplement, waiver or
departure; provided no departure with respect to the provisions of Section 4
shall be effective as against any Holder without the consent of such Holder.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder, by written agreement signed by the Company
and the Trustee, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be defective or inconsistent with any other provision of
this Agreement or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
other provisions of this Agreement and shall not adversely affect the interests
of the Holders in any material respect, (ii) without the consent of any Holder,
this Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by written
agreement signed by the Company and the Trustee to the extent that any such
amendment, modification, supplement, waiver or consent is, in their reasonable
judgment, necessary or appropriate to comply with applicable law (including any
interpretation of the staff of the SEC) or any change therein and (iii) to the
18
extent any provision of this Agreement relates to the Initial Purchasers, such
provision may be amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement signed by the
Company and the Initial Purchasers.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
7(d), which address initially is, with respect to the Initial Purchasers, the
addresses set forth in the Purchase Agreement and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
19
5.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.8 Headings. The headings in this Agreement are for the convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
5.10 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
5.11 Entire Agreement. This Agreement and other writings referred to
herein (including the Indenture and the Purchase Agreement) represent the entire
agreement among the parties hereto with respect to the subject matter hereof and
supercedes and replaces any and all prior agreements and understandings, whether
oral or written, with respect thereto.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TXU CORP.
By: /s/ H. Xxx Xxxxxx
----------------------------------
Name: H,. Xxx Xxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED
AS OF THE DATE FIRST ABOVE WRITTEN:
CREDIT SUISSE FIRST BOSTON LLC
as Representative of the Initial Purchasers
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
21
