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Exhibit 10.1
EXECUTION COPY
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Nebco Xxxxx Holding Company
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$100,387,000
l2 3/8% SENIOR DISCOUNT NOTES DUE 2007
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 11, 1997
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Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of July 11, 1997, by and between Nebco Xxxxx Holding Company, a Delaware
corporation ("NEHC") and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("DLJ" or the "Initial Purchaser"), who have agreed to purchase NEHC's 12 3/8%
Senior Discount Notes due 2007 (the "Senior Discount Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated July
11, 1997 (the "Purchase Agreement"), by and between NEHC and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Senior
Discount Notes, NEHC has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in the City
of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Broker-Dealer Transfer Restricted Securities: New Senior Discount Notes
that are acquired by a Broker-Dealer in the Exchange Offer in exchange for
Senior Discount Notes that such Broker-Dealer acquired for its own account as a
result of market-making activities or other trading activities (other than
Senior Discount Notes acquired directly from NEHC or any of its respective
affiliates).
Certificated Securities: As defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the New Senior
Discount Notes to be issued in the Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof and (c) the delivery by NEHC to the Registrar under the
Indenture of New Senior Discount Notes in the same aggregate principal amount as
the aggregate principal amount of Senior Discount Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Transfer Restricted Securities,
each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by NEHC under the Act of the
New Senior Discount Notes pursuant to the Exchange Offer Registration Statement
pursuant to which NEHC shall offer the Holders of all outstanding Transfer
Restricted Securities held by such holders the opportunity to exchange all such
outstanding Transfer Restricted Securities for New Senior Discount Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser proposes
to sell the Senior Discount Notes (i) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act or (ii) outside the
United States in reliance upon Regulation S under the Securities Act to non-U.S.
persons.
Global Note Holder: As defined in the Indenture.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated the Closing Date, between NEHC and the
Bank of New York, as trustee (the "Trustee"), pursuant to which the Notes are to
be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Offering Memorandum: As defined in the Purchase Agreement.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person who
is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of NEHC relating to (a)
an offering of New Senior Discount Notes pursuant to an Exchange Offer or (b)
the registration for resale of Transfer
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Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) which is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
Transfer Restricted Securities.
Notes: The Senior Discount Notes and the New Senior Discount Notes.
New Senior Discount Notes: NEHC's 12 3/8% New Senior Discount Notes due
2007 to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii)
upon the request of any Holder of Senior Discount Notes covered by a Shelf
Registration Statement, in exchange for such Senior Discount Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to occur of
(a) the date on which such Note is exchanged in the Exchange Offer and entitled
to be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such Note has
been disposed of in accordance with a Shelf Registration Statement, (c) the date
on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of NEHC are sold to an underwriter for reoffering to the
public.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
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3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal law
(after the procedures set forth in Section 6(a)(i) below have been complied
with), NEHC shall (i) cause to be filed with the Commission, on or prior to 30
days after the Closing Date, the Exchange Offer Registration Statement, (ii) use
its best efforts to cause such Exchange Offer Registration Statement to become
effective at the earliest possible time, but in no event later than 120 days
after the Closing Date, (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause such Exchange Offer Registration Statement to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the New Senior Discount Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer provided that in no event shall NEHC be obligated to qualify to
do business in any jurisdiction where it is not now so qualified, or take any
action which would subject it to General Service of Process in any jurisdiction
where it is not now so subject, and (iv) upon the effectiveness of such Exchange
Offer Registration Statement, use its reasonable best efforts to commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the New Senior Discount Notes to be offered in
exchange for the Senior Discount Notes that are Transfer Restricted Securities
and to permit sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers as contemplated by Section 3(c) below.
(b) NEHC shall use its best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange Offer open,
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 Business Days.
NEHC shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Notes shall be included in
the Exchange Offer Registration Statement. NEHC shall use its best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter.
(c) NEHC shall include a "Plan of Distribution" section in the Prospectus
contained in the Exchange Offer Registration Statement and indicate therein that
any Restricted Broker-Dealer who holds Senior Discount Notes that are Transfer
Restricted Securities and that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Senior Discount Notes (other than Transfer
Restricted Securities acquired directly from NEHC or any affiliate of NEHC)
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to
be an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with the sales of
the New Senior Discount Notes received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such
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Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers that the Commission may require in order
to permit such sales pursuant thereto, but such "Plan of Distribution" shall
not name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer except to the extent required by the Commission.
NEHC shall use its best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Section 6(c) below to the extent necessary to ensure that it is
available for sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers, and to ensure that such Registration Statement
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 120 days from the date on which the Exchange Offer is Consummated.
NEHC shall provide sufficient copies of the latest version of such
Prospectus to such Restricted Broker-Dealers promptly upon request, and in no
event later than two days after such request, at any time during such 120-day
period in order to facilitate such sales.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) NEHC is not required to file an Exchange
Offer Registration Statement with respect to the New Senior Discount Notes
because the Exchange Offer is not permitted by applicable law (after the
procedures set forth in Section 6(a)(i) below have been complied with) or (ii)
if any Holder of Transfer Restricted Securities shall notify NEHC within 20
Business Days following the Consummation of the Exchange Offer that (A) such
Holder who holds at least $2.0 million in aggregate principal amount of the
Senior Discount Notes is prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the New
Senior Discount Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (C) such Holder is a Broker-Dealer and holds Senior Discount Notes
acquired directly from NEHC or one of its respective affiliates, then NEHC shall
(x) cause to be filed on or prior to the earliest of (1) 45 days after the date
on which NEHC is notified by the Commission or otherwise determines that they
are not required to file the Exchange Offer Registration Statement pursuant to
clause (i) above and (2) 45 days after the date on which NEHC receives the
notice specified in clause (ii) above, a shelf registration statement pursuant
to Rule 415 under the Act, (which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration Statement
")), relating to all Transfer Restricted Securities the Holders of which shall
have provided the information required pursuant to Section 4(b) hereof, and (y)
use their respective best efforts to cause such Shelf Registration Statement to
be declared effective by the Commission at the earliest possible time, but in no
event later than 120 days after the date on which NEHC becomes obligated to file
such Shelf Registration Statement. If, after NEHC has filed an Exchange Offer
Registration Statement which satisfies the requirements of Section 3(a) above,
NEHC is required to file and make effective a Shelf Registration Statement
solely because the Exchange Offer shall not be permitted under applicable
federal law, then the filing of the Exchange Offer Registration Statement shall
be deemed to satisfy the requirements of clause (x) above. Such an event shall
have no effect on the requirements of clause (y) above, or on the Effectiveness
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Date as defined in Section 5 below, NEHC shall use its best efforts to keep the
Shelf Registration Statement discussed in this Section 4(a) continuously
effective, supplemented and amended as required by and subject to the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years (as extended pursuant to Section 6(c)(i)) following the date on
which such Shelf Registration Statement first becomes effective under the Act or
such shorter period ending when all of the Transfer Restricted Securities
available for sale thereunder have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
NEHC in writing, within 20 days after receipt of a request therefor, such
information specified in Item 507 of Regulation S-K under the Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder has provided all such information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to NEHC all
information required to be disclosed in order to make the information previously
furnished to NEHC by such Holder not materially misleading.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the date specified for such filing in this
Agreement, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
not been Consummated within 30 Business Days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), NEHC hereby agrees to pay to each
Holder of Transfer Restricted Securities, for the first 90-day period
immediately following the occurrence of such Registration Default, liquidated
damages in an amount equal to $.05 per week per $1,000 principal amount of Notes
constituting Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues. The amount of the
liquidated damages payable to each Holder shall increase by an additional $.05
per week per $1,000 in principal amount of Transfer Restricted Securities with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of liquidated damages of $.50 per week per
$1,000 principal amount of Transfer Restricted Securities held by such Holder.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated damages
payable with respect to the
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Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Global Note Holder by
wire transfer of immediately available funds or by federal funds check and to
Holders of Certificated Securities by wire transfer to the accounts specified by
them or by mailing checks to their registered addresses if no such accounts have
been specified on each Damages Payment Date. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of liquidated damages with respect to such Transfer Restricted
Securities will cease. All obligations of NEHC set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, NEHC shall comply with all applicable provisions of Section 6(c) below,
shall use its best efforts to effect such exchange and to permit the sale of
Broker-Dealer Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (which shall be in a manner
consistent with the terms of this Agreement), and shall comply with all of the
following provisions:
(i) If, following the date hereof and prior to Consummation of the
Exchange Offer, there has been published a change in Commission policy
with respect to exchange offers such as the Exchange Offer, such that in
the reasonable judgment of counsel to NEHC there is a substantial question
as to whether the Exchange Offer is permitted by applicable federal law or
Commission policy, NEHC hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing NEHC to Consummate an
Exchange Offer for such Senior Discount Notes. NEHC hereby agrees to
pursue the issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to effect a
change of Commission policy. In connection with the foregoing, NEHC hereby
agrees, however, but subject to the proviso set forth above, to take all
such other actions as are reasonably requested by the Commission or
otherwise required in connection with the issuance of such decision,
including without limitation to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to NEHC setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of NEHC, prior to
the Consummation of the Exchange Offer, a written representation to NEHC
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of NEHC, (B) it is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any person to participate
in, a distribution of the New Senior Discount Notes to be issued in the
Exchange Offer and (C) it is acquiring the New Senior Discount Notes in
its ordinary course of business. In addition, all such holders of Transfer
Restricted Securities shall otherwise cooperate in NEHC's preparation for
the Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate
in a distribution
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of the securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
if the resales are of New Senior Discount Notes obtained by such Holder in
exchange for Senior Discount Notes acquired by such Holder directly from
NEHC or an affiliate thereof.
(iii) To the extent required by the Commission, prior to
effectiveness of the Exchange Offer Registration Statement, NEHC shall
provide a supplemental letter to the Commission (A) stating that NEHC is
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that neither NEHC nor any Subsidiary
Guarantor has entered into any arrangement or understanding with any
Person to distribute the New Senior Discount Notes to be received in the
Exchange Offer and that, to the best of NEHC's information and belief,
each Holder participating in the Exchange Offer is acquiring the New
Senior Discount Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the New Senior Discount Notes received in the Exchange
Offer and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement NEHC shall comply with all the provisions of Section 6(c)
below and shall use its best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to NEHC pursuant to Section 4(b) hereof), and pursuant
thereto NEHC will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any Exchange
Offer Registration Statement and the related Prospectus, to the extent that the
same are required to be available to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers), NEHC shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities
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during the period required by this Agreement, NEHC shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case of
clause (A), correcting any such misstatement or omission, and (2) in the
case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter. Notwithstanding the foregoing, at any time
after Consummation of the Exchange Offer, NEHC may allow the Shelf
Registration Statement to cease to be effective and usable if (x) the
Board of Directors of NEHC determines in good faith that it is in the best
interests of NEHC not to disclose the existence of or facts surrounding
any proposed or pending material corporate transaction involving NEHC, and
NEHC notifies the Holders within two business days after the Board makes
such determination, or (y) the Prospectus contained in the Shelf
Registration Statement contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462 as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities, as applicable for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, NEHC shall use its best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
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(iv) furnish to the Initial Purchaser, each selling Holder named in
any Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders and underwriter(s) in
connection with such sale, if any, for a period of at least five Business
Days, and NEHC will not file any such Registration Statement or Prospectus
or any amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference) if the
selling Holders of the Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s) in connection with such sale
shall not have had such an opportunity to participate in the preparation
thereof;
(v) prior to the filing of any document that is to be incorporated
by reference into a Registration Statement or Prospectus, provide copies
of such document to the selling Holders and to the underwriter(s) in
connection with such sale, if any, make NEHC's and the Subsidiary
Guarantors' representatives available for discussion of such document and
other customary due diligence matters, and include such information in
such document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times at NEHC's principal place of
business for inspection by the selling Holders of transfer who shall
certify to NEHC that they have a current intention to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement
Restricted Securities, any managing underwriter participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such selling Holders or any of such underwriter(s),
all pertinent financial and other pertinent information of NEHC and cause
NEHC's officers, directors and employees to respond to such inquiries as
shall be reasonably necessary; in the reasonable judgment of counsel to
such Holders, to conduct a reasonable investigation; provided, however,
that each such party shall be required to maintain in confidence and not
to disclose to any other person any information or records reasonably
designated by NEHC in writing as being confidential, until such time as
(A) such information becomes a matter of public record (whether by virtue
of its inclusion in such Registration Statement or otherwise), or (B) such
person shall be required so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order,
and only after such person shall have given NEHC prompt prior written
notice of such requirement), or (C) such information is required to be set
forth in such Registration Statement or the Prospectus included therein or
in an amendment or supplement to such Registration Statement or an
amendment or supplement to such Prospectus in order that such Registration
Statement, Prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(vii) if requested by any selling Holders or the underwriter(s), as
applicable, in connection with such sale, if any, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information that is required
by the Act as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, and make all required filings
of such Prospectus supplement or post-effective amendment as soon as
practicable after NEHC is notified of the matters to be
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included in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the underwriter(s)
in connection with such sale, if any, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(ix) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; NEHC hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto. Notwithstanding the foregoing, at any time after
Consummation of the Exchange Offer, NEHC may allow the Shelf Registration
Statement to cease to be effective and usable if (x) the Board of
Directors of NEHC determines in good faith that it is in the best
interests of NEHC not to disclose the existence of or facts surrounding
any proposed or pending material corporate transaction involving NEHC, and
NEHC notifies the Holders within two business days after the Board makes
such determination, or (y) the Prospectus contained in the Shelf
Registration Statement contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(x) enter into such agreements (including an underwriting agreement)
and make such representations and warranties and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holder who holds at lease 5% in aggregate principal
amount of such class of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement, provided, that, NEHC shall not be required
to enter into any such agreement more than once with respect to all of the
Transfer Restricted Securities, and in the case of a Shelf Registration
Statement, may delay entering into such agreement if the Board of
Directors of the Company determines in good faith that it is in the best
interests of NEHC not to disclose the existence of or facts surrounding
any proposed or pending corporate transaction involving the Company; and
in such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an Underwritten Registration,
NEHC shall:
(A) furnish to each selling Holder who holds at least 5% in
aggregate principal amount of such class of Transfer Restricted
Securities and each underwriter, if any, in such substance and scope
as they may request and as is customarily made in connection with an
offering of debt securities pursuant to a Registration Statement
upon the effectiveness of the Shelf Registration Statement and to
each Restricted Broker-Dealer upon Consummation of the Exchange
Offer:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed on behalf
of NEHC by (x) the President or any Vice President
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and (y) a principal financial or accounting officer of NEHC
confirming, as of the date thereof, the matters set forth in
paragraphs (a) through (c) of Section 9 of the Purchase
Agreement and such other similar matters as the Holders,
underwriter(s) and/or Restricted Broker-Dealers may reasonably
request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for
NEHC, covering matters customarily covered in opinions
requested in Underwritten Offerings and dated the date of
effectiveness of the Shelf Registration Statement or the date
of Consummation of the Exchange Offer, as the case may be; and
(3) customary comfort letters, dated as of the date of
effectiveness of the Shelf Registration Statement or the date
of Consummation of the Exchange Offer, as the case may be,
from NEHC's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with an offering of debt
securities pursuant to a Registration Statement and affirming
the matters set forth in the comfort letters delivered
pursuant to Section 9(f) of the Purchase Agreement, without
exception;
(B) set forth in full or incorporated by reference in the
underwriting agreement, if any, in connection with any sale or
resale pursuant to any Shelf Registration Statement the
indemnification provisions and procedures of Section 8 hereof with
respect to all parties to he indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders, the underwriter(s), if
any, and Restricted Broker-Dealers, if any, to evidence compliance
with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by NEHC
pursuant to this clause (x).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of NEHC contemplated in (A)(l)
above cease to be true and correct, NEHC shall so advise the
underwriter(s), if any, selling Holders who hold at least 5% in aggregate
principal amount of such class of Transfer Restricted Securities and each
Restricted Broker-Dealer promptly and if requested by such Persons, shall
confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and its
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the applicable Registration
Statement; provided, however, that NEHC shall not be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the
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Registration Statement, in any jurisdiction where it is not now so
subject;
(xii) issue, upon the request of any Holder of Senior Discount Notes
covered by any Shelf Registration Statement contemplated by this
Agreement, New Senior Discount Notes, having an aggregate principal amount
equal to the aggregate principal amount of Senior Discount Notes
surrendered to NEHC by such Holder in exchange therefor or being sold by
such Holder; such New Senior Discount Notes to be registered in the name
of such Holder or in the name of the purchaser(s) of such Notes, as the
case may be; in return, the Senior Discount Notes held by such Holder
shall be surrendered to NEHC for cancellation;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to enable such Transfer Restricted Securities to
be in such denominations and registered in such names as such Holders or
the underwriter(s), if any, may request at least two Business Days prior
to such sale of Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
(xv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository Trust
Company;
(xvii) 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 (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of
the NASD;
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering a
twelve-month period (A) commencing at the end of any fiscal year in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts underwritten offering or (B) if not sold to
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underwriters in such an offering beginning with the first month of NEHC's
first fiscal quarter commencing a further effective date of the
Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
and
(xx) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security or Broker-Dealer Transfer Restricted Securities, as
applicable that, upon receipt of the notice referred to in Section 6(c)(i) or
any notice from NEHC of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will immediately discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof, or
until it is advised in writing by NEHC that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus (the "Advice"). If so directed
by NEHC, each Holder will deliver to NEHC (at NEHC's expense) all copies, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities that was current at the time of receipt of either such
notice. In the event NEHC shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section
6(c)(i) or Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof or shall have received the Advice.
NEHC may require each Holder of Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities as to which any registration is
being effected to furnish to NEHC such information regarding such Holder and
such Holder's intended method of distribution of the applicable Transfer
Restricted Securities as NEHC may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Act. Each such Holder agrees to notify NEHC as promptly as
practicable of (i) any inaccuracy or change in information previously furnished
by such Holder to NEHC, or (ii) the occurrence of any event, in either case, as
a result of which any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such Holder or such
Holder's intended method of distribution of the applicable Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities or omits to state any
material fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities required to be stated therein or necessary to
make the statements therein not misleading and promptly to furnish to NEHC any
additional information required to correct and update any previously furnished
information or required so that such Prospectus shall not contain, with respect
to such Holder or the distribution of the applicable Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities or Broker-Dealer
Transfer
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Restricted Securities 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.
7. REGISTRATION EXPENSES
(a) All expenses incident to NEHC's performance of or compliance with this
Agreement will be borne by NEHC, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing
fees and expenses (including filings made by any Initial Purchaser or Holder
with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter") and its counsel that may be required by the rules and
regulations of the NASD); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the New Senior Discount Notes to be issued
in the Exchange Offer and printing of Prospectuses); (iv) all fees and
disbursements of counsel for NEHC and, in accordance with Section 7(b) below,
the Holders of Transfer Restricted Securities; (v) all messenger and delivery
services and telephone expenses of NEHC; (vi) all application and filing fees in
connection with listing the Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof and (vii) all fees and
disbursements of independent certified public accountants of NEHC (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
(b) NEHC will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of any of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by NEHC.
(c) In connection with any Registration Statement required by this
Agreement, as applicable, (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), NEHC will
reimburse the Initial Purchaser and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
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8. INDEMNIFICATION
(a) NEHC agrees to indemnify and hold harmless (i) the Initial
Purchaser, (ii) each Holder, (iii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Initial
Purchaser or any Holder (any of the persons referred to in this clause (iii)
being hereinafter referred to as a "controlling person") and (iv) the
respective officers, directors, partners, employees, representatives and agents
of the Initial Purchaser or any Holder or any controlling person (any person
referred to in clause (i), (ii), (iii) or (iv) in such capacity may hereinafter
be referred to as an "Indemnified Holder"), from and against any and all losses,
claims, damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the fees and expenses of counsel to any Indemnified
Holder) directly or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto), 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
under which they were made, not misleading, except insofar as such losses,
claims, damages, liabilities, judgments, actions or expenses are caused by any
untrue statement or omission or alleged untrue statement or omission that is
made in reliance upon and in conformity with information relating to any Initial
Purchaser or any of the Holders furnished in writing to NEHC by the Initial
Purchaser or any of the Holders expressly for use therein; and except insofar as
such losses, claims, damages, liabilities, judgments, actions or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that was contained or made in the Preliminary Offering Memorandum and
corrected in the Offering Memorandum or Registration Statement; and (1) any such
losses, claims, damages, liabilities, judgments, actions or expenses suffered or
incurred by any Indemnified Person resulted from an action, claim, or suit by
any person who purchased the Notes from any Initial Purchaser in an Exempt
Resale, (2) the Initial Purchasers failed to deliver or provide a copy of the
Preliminary Offering Memorandum or Offering Memorandum to such person at or
prior to the confirmation of the sale of the Notes and (3) the Preliminary
Offering Memorandum or the Offering Memorandum, as the case may be, (as so
amended or supplemented) would have cured the defect giving rise to such losses,
claims, damages, liabilities, judgments, actions, or expenses. NEHC also agrees
to reimburse each Indemnified Holder for any and all reasonable fees and
expenses (including, without limitation, the reasonable fees and expenses of
counsel) as they are incurred in connection with enforcing such Indemnified
Holder's rights under this Agreement (including, without limitation, its rights
under this Section 8). NEHC shall notify the Initial Purchaser and any Holder
promptly of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves NEHC or an Indemnified
Holder.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
NEHC, such Indemnified Holder shall promptly notify NEHC in writing (provided,
that the failure to give such notice shall not relieve NEHC of its obligations
pursuant to this Agreement), and NEHC shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Holder and payment of all fees and expenses (regardless of whether it is
ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). Such Indemnified Holder shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
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of such Indemnified Holder unless (i) the employment of such counsel shall have
been specifically authorized in writing by NEHC, (ii) NEHC shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both such Indemnified Holder
and NEHC, and such Indemnified Holder shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to NEHC (in which case NEHC shall not have
the right to assume the defense of such action on behalf of such Indemnified
Holder, it being understood, however, that NEHC shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such Indemnified
Holders, which firm shall be designated in writing by the Indemnified Holders,
and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). NEHC shall not be liable for any settlement of any such action or
proceeding effected without the prior written consent of NEHC, but if settled
with the written consent of NEHC, which consent will not be unreasonably
withheld, NEHC agrees to indemnify and hold harmless any Indemnified Holder
from and against any loss, claim, damage, liability, judgment, action or expense
by reason of any such settlement. Notwithstanding the foregoing sentence, if at
any time an Indemnified Holder shall have requested NEHC to reimburse the
Indemnified holder for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, NEHC agrees that it shall be liable for any
settlement of any proceeding effected without NEHC's written consent if (i) such
settlement is entered into more than thirty (30) business days after receipt by
NEHC of the aforesaid request, and (ii) NEHC shall not have reimbursed the
Indemnified Holder in accordance with such request or contested the
reasonableness of such fees and expenses prior to the date of such settlement.
NEHC shall not, without the prior written consent of the Indemnified Holder
(which consent shall not he unreasonably withheld), settle, compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder by such (whether or not
any Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of such Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless NEHC, any person controlling (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) NEHC,
and the officers, directors, partners, employees, representatives and agents of
each such person (the "NEHC Indemnified Parties"), to the same extent as the
foregoing indemnity from NEHC to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement; provided however, that in no case shall any Holder be liable or
responsible for any amount in excess of the amount by which the total received
by such Holder with respect to its sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds (i) the amount paid by such Holder
for such Transfer Restricted Securities and (ii) the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. In case any action
shall be brought against any NEHC Indemnified Party in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such
Holder shall have the rights and duties given NEHC, and NEHC Indemnified Parties
shall have the rights and duties given to each Holder by the preceding
paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party in respect of any losses, claims, damages, liabilities,
judgments, actions or expenses referred to therein,
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then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities, judgments, actions or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party (or parties, as applicable), on the
one hand, and the indemnified party (or parties, as applicable), on the other
hand, from the initial placement and the sale of Transfer Restricted Securities
pursuant to the applicable Registration Statement or (ii) if such allocation
provided by clause (i) above is not permitted by applicable law, 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 the indemnifying party (or
parties, as applicable), and of the indemnified party (or parties, as
applicable), as well as any other relevant equitable considerations. The
relative benefits received by NEHC shall be deemed to be equal to the total
proceeds from the initial placement (net of the Initial Purchaser's commissions,
but before deducting expenses) as set forth on the cover page of the Offering
Memorandum. The relative benefits of the Initial Purchaser shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Offering Memorandum and benefits received by any other Indemnified
Holders shall be deemed to be equal to the total proceeds received by such
Holder upon its sale of Senior Discount Notes. The relative fault of NEHC, on
the one hand, and the Indemnified Holders, on the other hand, 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 related to information supplied by either of NEHC on the one
hand, or by the Indemnified Holders, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
NEHC, the Initial Purchaser and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities, judgments, actions or expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, the Initial
Purchaser (and such Initial Purchaser's related Indemnified Holders), shall not
be required to contribute, in the aggregate, any amount in excess of the amount
equal to (A) the amount of the total purchase discounts and commissions
applicable to such Transfer Restricted Securities less (B) any amount paid or
contributed by the Initial Purchaser under the Purchase Agreement; nor shall any
Holder or its related Indemnified Holders be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities plus (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
The indemnity and contribution agreements of NEHC contained in this
Section 8 are in addition to any liability or obligation which NEHC may
otherwise have to the Indemnified Holders. The obligations of the Initial
Purchaser, any Holder, Underwriter or agent thereof contemplated by this Section
8 shall be in addition to any liability which the respective Initial Purchaser,
Holder or Underwriter (or agent thereof) may otherwise have and shall extend
upon the same terms and conditions
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to each officer and director of NEHC and to each person, if any, who controls
NEHC within the meaning of the Act.
9. RULE 144A
NEHC hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which NEHC is
not subject to Section 13 or 15(d) of the Securities Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, lock-up letters and other documents required
under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
For any Underwritten Offering of Notes, the investment banker or
investment bankers and manager or managers for any Underwritten Offering of
Notes, that will administer such offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities
included in such offering provided, however, that such investment bankers and
managers must be reasonably satisfactory to NEHC. Such investment bankers and
managers are referred to herein as the "underwriters."
12. MISCELLANEOUS
(a) Remedies. NEHC agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. NEHC will not, on or after the date of
this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. NEHC has not previously entered
into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of NEHC's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. NEHC will not take any action, or
voluntarily permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended,
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modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given unless (i) in the case of Section 5 hereof
and this Section 12(d)(i), NEHC has obtained the written consent of the Holders
of all outstanding Transfer Restricted Securities and (ii) in the case of all
other provisions hereof, NEHC has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture;
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
(ii) if to NEHC:
Nebco Xxxxx Holding Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx 0. Xxxxxxxx
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
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
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the Person giving the same to the Trustee at the address specified in the
Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from such Holder at a time when such
Holder could not transfer such Transfer Restricted Securities pursuant to a
Shelf Registration Statement. Each Holder of Transfer Restricted Securities
agrees to be bound by and comply with the terms and provisions of this
Agreement.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW RULES.
(j) 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.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
NEBCO XXXXX HOLDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
