REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of September ____ , 1999
between MidAmerican Energy Holdings Company ("MidAmerican Holdings") and
XxxxXxxxxxxx.Xxx Inc. (the "Company").
WHEREAS, as of the date of this Agreement, MidAmerican Holdings owns
_________ shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock")(1);
WHEREAS, the Company is consummating on the date hereof an initial
public offering (the "Offering") of shares of the Company's Common Stock;
WHEREAS, the Board of Directors of the Company has authorized the
officers of the Company to execute and deliver this Agreement in the name and
on behalf of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"days" means calendar days.
"Holder" means MidAmerican Holdings, including its successors and
assigns who acquire Registrable Securities, directly or indirectly, from
MidAmerican Holdings; provided, however, that for purposes of exercising the
demand and incidental registration rights set forth in Sections 2 and 3 of this
Agreement, a "Holder" means MidAmerican Holdings or its successors and assigns
so long as it holds Registrable Securities constituting at least 5.0% of the
total number of shares of Common Stock then outstanding. For purposes of this
Agreement, the Company may deem and treat the registered holder of a
Registrable Security as the Holder and absolute owner thereof, and the Company
shall not be affected by any notice to the contrary.
--------
(1) Share ownership to be post-Merger so this Agreement must be executed
after the Merger occurs.
"Registrable Securities" means (a) the Common Stock owned by (i)
MidAmerican Holdings upon completion of the Offering, (ii) any pledgee of
Common Stock under a bona fide pledge arrangement with MidAmerican Holdings (or
its successors and assigns) or (iii) any transferee that receives Registrable
Securities from MidAmerican Holdings (or its successors and assigns) to the
extent that MidAmerican Holdings (or its successors and assigns) assigns to
such transferee registration rights in writing relating to the Registrable
Securities transferred to such transferee (a "Permitted Transferee")), (b) any
Common Stock acquired by MidAmerican Holdings in the open market at a time when
MidAmerican Holdings is deemed to be an Affiliate (as such term is defined
under Rule 144 under the Securities Act) of the Company so long as MidAmerican
Holdings continues to be deemed an Affiliate of the Company, (c) any debt,
equity or other securities (including without limitation any options, rights,
warrants or similar securities) issued by MidAmerican Holdings or any other
person that are or may be exchangeable or exercisable for or convertible into
the Common Stock and (d) any securities issued or issuable in respect of the
Common Stock referred to in clauses (a) and (b) above, by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
reclassification, merger or consolidation, and any other securities issued
pursuant to any other pro rata distribution with respect to such Common Stock.
For purposes of this Agreement, a Registrable Security ceases to be a
Registrable Security when (1) a registration statement with respect to the sale
of such security shall have become effective under the Securities Act and such
security shall have been sold or distributed to the public in accordance with
such registration statement (and has not been reacquired in the manner
described in clause (b) above), (2) such security is sold or distributed to the
public pursuant to Rule 144 (or any successor or similar provision) under the
Securities Act, (3) such security shall have been otherwise transferred, a new
certificate for it not bearing a legend restricting further transfer shall have
been delivered by the Company and the subsequent disposition of it shall, in
the opinion of MidAmerican Holdings' counsel, not require registration or
qualification of it under the Securities Act or any similar state law then in
force or (4) it shall have ceased to be outstanding.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
2. Demand Registration. (a) Subject to Section 5 hereof, if at any
time any Holder shall request the Company in writing to register under the
2
Securities Act all or a part of the Registrable Securities held by such Holder
(a "Demand Registration"), the Company shall use its best efforts to cause to
be filed and declared effective as soon as reasonably practicable (but in no
event filed later than the 60th day after such Holder's request is made) a
registration statement, on such appropriate form as the Company shall
reasonably determine, providing for the sale of all such Registrable Securities
by such Holder. The Company agrees to use its best efforts to keep any such
registration statement continuously effective and usable for resale of
Registrable Securities until the earlier of (a) the date the Holder whose
Registrable Securities are included therein shall request and (b) the
expiration of 180 days after such registration statement becomes effective,
subject to extension as provided in Section 4(d). The Company shall be
obligated to file registration statements pursuant to this Section 2(a) until
all Registrable Securities have ceased to be Registrable Securities. Each
registration statement filed pursuant to this Section 2(a) is hereinafter
referred to as a "Demand Registration Statement." Holders shall be entitled to
two effective Demand Registration Statements per year.
(b) The Company agrees (i) not to effect any public or private sale,
distribution or purchase of any of its securities which are the same as or
similar to the Registrable Securities, including a sale pursuant to Regulation
D or Regulation S under the Securities Act, during the 60-day period prior to
(or shorter if the Holder's notice precedes the offering by less than 60 days),
and during the 90-day period beginning on, the closing date of each
underwritten offering under any Demand Registration Statement, and (ii) to use
reasonable best efforts to cause each holder of its securities purchased from
the Company, at any time on or after the date of this Agreement (other than in
a registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act; it being understood that the
registration rights granted hereunder are intended to take precedence over any
other registration or distribution rights granted to any other purchasers of
the Company's securities.
(c) ______ The Company may postpone for a reasonable period of time,
not to exceed 30 days, the filing or the effectiveness of any Demand
Registration Statement if the Board of Directors of the Company in good faith
determines that (A) such registration might have a material adverse effect on
any plan or proposal by the Company with respect to any financing, acquisition,
recapitalization, reorganization or other material transaction, or (B) the
Company is in possession of material non-public information that, if publicly
disclosed, could result in a material disrup-
3
tion of a major corporate development or transaction then pending or in
progress or in other material adverse consequences to the Company.
(d) If at any time any Holder of Registrable Securities to be
covered by a Demand Registration Statement desires to sell Registrable
Securities in an underwritten offering, such Holder shall have the right to
select any nationally recognized investment banking firm(s) to manage the
offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld, and the Company shall enter into underwriting agreements
with the underwriter(s) of such offering, which agreements shall contain such
representations and warranties by the Company, and such other terms, conditions
and indemnities as are similar to those of the Company contained in the
underwriting agreement dated September ____ , 1999 relating to the Offering or
otherwise are at the time customarily contained in underwriting agreements for
similar offerings.
(e) A Demand Registration Statement requested pursuant to
Section 2(a) shall not be deemed to have been effected (i) if such Demand
Registration Statement has not become effective, (ii) if, after it has become
effective, such Demand Registration Statement becomes subject to, any stop
order, injunction or other order of the SEC or other governmental agency or
court for any reason or (iii) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied, other than solely by reason of some act or
omission by the Holders.
3. Incidental Registration. Subject to Section 5 hereof and the other
terms and conditions set forth in this Section 3, if the Company proposes at
any time to register any shares of Common Stock (the "Initially Proposed
Shares") under the Securities Act for sale, whether or not for its own account,
pursuant to an underwritten offering, the Company will promptly give written
notice to the Holders of the Company's intention to effect such registration
(such notice to specify, among other things, the proposed offering price, the
kind and number of securities proposed to be registered and the proposed lead
distribution arrangements, including identification of the proposed lead
underwriter(s)). The Holders shall be entitled to include in such registration
statements, as a part of such underwritten offering, such number of shares (the
"Holder Shares") to be sold for the account of the Holders (on the same terms
and conditions as the Initially Proposed Shares) as shall be specified in a
request in writing delivered to the Company within 20 days after the date upon
which the Company gave the aforementioned notice and to designate a co-lead
4
managing underwriter of the offering who shall be compensated on the same basis
as the Company's designated co-lead managing underwriter.
The Company agrees to use its reasonable efforts to keep any such
registration statement continuously effective and usable for resale of
Registrable Securities for a period of 90 days after such registration
statement becomes effective.
The Company's obligations to include Holder Shares in a registration
statement pursuant to this Section 3 is subject to each of the following
limitations, conditions and qualifications:
(i) If, at any time after giving written notice of its
intention to effect a registration of any of its shares of Common
Stock and prior to the effective date of any registration statement
filed in connection with such registration, the Company shall
reasonably determine not to register any of such shares, the Company
may, at its election, give written notice of such determination to the
Holders and thereupon it shall be relieved of its obligation to use
any efforts to register any Holder Shares in connection with such
aborted registration.
(ii) If the offering is underwritten and the co-lead managing
underwriter of such offering designated by the Company shall inform
the Company and the Holders of the Holder Shares by letter of its
belief that the distribution of all or a specified portion of the
Holder Shares would materially interfere with the registration and
sale in accordance with the intended method thereof, of the Initially
Proposed Shares (such letter to state the bases of belief and the
approximate number of shares of Common Stock which may be included for
such offering without having such interference), then the number of
Holder Shares to be included in such registration statement and the
number of Initially Proposed Shares shall each be reduced to such
number, if any, that is 50%, respectively, of the number that such
co-lead managing underwriter has stated in the letter that can be
marketed successfully. If, as a result of the cutback provisions of
the preceding sentence, the Holders are not entitled to include all of
the Holder Shares in such registration, such Holders may elect to
withdraw their request to include Holder Shares in such registration
(a "Withdrawal Election").
4. Registration Procedures. (a) Whenever the Company is required to
effect the registration of any Registrable Securities under the Securities
5
Act pursuant to the terms and conditions of Section 2(a) or 3 (such Registrable
Securities being hereinafter referred to as "Subject Shares"), the Company will
use its best efforts, in the case of a registration pursuant to Section 2(a),
and all reasonable efforts, in the case of a registration pursuant to Section
3, to effect the registration and sale of the Subject Shares in accordance with
the intended method of disposition thereof. Without limiting the generality of
the foregoing, the Company will as soon as practicable:
(i) prepare and file with the SEC a registration statement
with respect to the Subject Shares in form and substance satisfactory
to the Holders of the Subject Shares, and use all reasonable or best
efforts, as the case may be, to cause such registration statement to
become effective as soon as possible;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the applicable period and to comply with the
provisions of the Securities Act with respect to the disposition of
all Subject Shares and other securities covered by such registration
statement;
(iii) furnish the Holders covered by such registration
statement, without charge, such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including
each preliminary prospectus), such documents incorporated by reference
in such registration statement or prospectus, and such other
documents, as such Holders may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities;
(iv) use all reasonable efforts to register or qualify the
Subject Shares covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the managing
underwriter(s) shall reasonably recommend, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable the Holders to consummate the disposition in such jurisdictions
of the Subject Shares covered by such registration statement;
6
(v) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC;
(vi) cause its President, Chief Financial Officer and other
senior officers reasonably requested by the Holders or managing
underwriters to participate in "roadshow" meetings with prospective
buyers and other sales and marketing efforts, consistent, with the
recommendations of the managing underwriter designated by the Holders
(with respect to a Demand Registration Statement filed pursuant to
Section 2 of this Agreement) or the co-lead managing underwriters
designated by the Company and the Holders (with respect to a
registration statement filed pursuant to Section 3 of this Agreement);
(vii) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being sold in
such denominations as shall be requested and instruct the transfer
agent to release any stop transfer orders with respect to the Subject
Shares being sold;
(viii) notify in writing each Holder promptly at any time
when a prospectus relating to the Subject Shares is required to be
delivered under the Securities Act of the happening of any event as a
result of which the prospectus included in such Registration Statement
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein (in the case of
the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and the
Company will, as promptly as practicable thereafter, prepare and file
with the SEC and furnish a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of Subject Shares
such prospectus will not contain any 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;
(ix) notify in writing each Holder and the managing
underwriter(s), promptly of (A) the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or
the initiation or threat of any proceedings by any person for that
purpose and (B) the receipt by the Company of any notification with
respect to the suspension of the qualifications of any Subject Shares
for sale under the securities or blue sky
7
laws of any jurisdiction or the initiation or threat of any proceeding
for such purpose;
(x) enter into customary agreements (including an
underwriting agreement in customary form in the case of an
underwritten offering) and make such representations and warranties
and indemnities to the sellers and underwriter(s) as in form and
substance and scope are customarily made by issuers to underwriters in
underwritten offerings and take such other actions as the Holders or
the managing underwriter(s) or agent, if any, reasonably require in
order to expedite or facilitate the disposition of such Subject
Shares;
(xi) make available for inspection by the Holders, any
underwriter or agent participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other similar
professional advisor retained by any such holders or underwriter
(collectively the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection
with such Registration Statement. The Holders agree that Records and
other information which the Company determines, in good faith, to be
confidential or privileged and of which determination the Inspectors
are so notified shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena, court order
or regulatory or agency request or (iii) the information in such
Records has been generally disseminated to the public. Each Holder
agrees that it will, upon learning that disclosure of such Record is
sought in a court of competent jurisdiction or by a governmental
agency, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(xii) make available for "due diligence" questions its
President, Chief Financial Officer and other senior officers
reasonably requested by the Holders or managing underwriters;
8
(xiii) obtain for delivery to the Company, the underwriter(s)
or their agent, with copies to the Holders, a "cold comfort" letter
from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by "cold
comfort" letters as the Holders or the managing underwriter(s)
reasonably request;
(xiv) obtain for delivery to the Holders and the
underwriter(s) or their agent an opinion or opinions from in-house and
special outside counsel for the Company in customary form and
reasonably satisfactory to the Holder, underwriters or agents and
their counsel;
(xv) make available to its security holders earnings
statements, which need not be audited, satisfying the provisions of
Section 11(a) of the Securities Act no later than 90 days after the
end of the 12-month period beginning with the first month of the
Company's first quarter commencing after the effective date of the
Registration Statement, which earnings statements shall cover said
12-month period;
(xvi) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the effectiveness
of such registration statement at the earliest possible moment;
(xvii) cause the Subject Shares to be registered with or
approved by such other governmental agencies or authorities within the
United States as may be necessary to enable the sellers thereof or the
underwriters(s), if any, to consummate the disposition of such Subject
Shares;
(xviii) cooperate with the Holders and the managing
underwriter(s), if any, or any other interested party (including any
interested broker-dealer) in making any filings or submission required
to be made, and the furnishing of all appropriate information in
connection therewith, with the National Association of Securities
Dealers, Inc. ("NASD");
(xix) cause its subsidiaries to take action necessary to
effect the registration of the Subject Shares contemplated hereby,
including filing any required financial information;
9
(xx) effect the listing of the Subject Shares on The Nasdaq
Stock Market's National Market or such other national securities
exchange or over-the-counter market on which shares of the Common
Stock shall then be listed; and
(xviii) take all other steps necessary to effect the
registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the
Holders and stated to be specifically for use in the related registration
statement, preliminary prospectus, prospectus or other document incident
thereto) the information regarding registered ownership and the number of
shares being sold as is customarily contained in a "Principal and Selling
Securityholders" table in a prospectus.
(c) The Holders shall, if requested by the Company and the
managing underwriters designated by the Company and the Holders in connection
with any proposed registration and distribution pursuant to this Agreement, (i)
agree to sell the Subject Shares on the basis provided in any underwriting
arrangements entered into in connection therewith and (ii) complete and execute
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents similar to those executed in the Offering or otherwise
customary in similar offerings.
(d) Upon receipt of any notice from the Company that the
Company has become aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed pursuant to Section
2(a) or 3, as then in effect, contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, the Holders shall forthwith
discontinue disposition of Subject Shares pursuant to the registration
statement covering the same until the Holders' receipt of copies of a
supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company (at the Company's expense) all copies other than permanent file
copies then in the Holder's possession, of the prospectus covering the Subject
Shares that was in effect prior to such amendment or supplement. If the Company
provides such notice, the periods mentioned in Sections 2(a) or 3 of this
Agreement for maintaining the effectiveness of the Registration Statement shall
be extended by the length of the period from and including the date when the
Holders shall have received such notice to the date on which such Holders have
received the
10
copies of the supplemented or amended prospectus required to be delivered by
the Company under Section 4(a)(vii) of this Agreement.
(e) The Company shall pay all reasonable out-of-pocket
expenses incurred in connection with any Demand Registration Statements filed
pursuant to Section 2(a) of this Agreement and any registration statement filed
pursuant to Section 3 of this Agreement, including, without limitation, all (i)
SEC and blue sky registration and filing fees (including NASD fees), (ii)
printing expenses, (iii) transfer agents and registrars' fees, (iv) fees and
disbursements of the Company's counsel and accountants, (v) fees and
disbursements of experts used by the Company in connection with such
registration statement, (vi) the Company's internal expenses (including without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties, the expense of any annual audits of the Company or
its subsidiaries and the expense of any additional liability insurance), (vii)
reasonable fees and disbursements of one counsel, other than the Company's
counsel, selected to represent all Holders by Holders owning a majority in
number of the Registrable Securities being registered, (viii) fees and expenses
associated with "roadshows" or otherwise customarily reimbursed or paid by
issuers on behalf of underwriters in underwritten offerings; provided, however,
that the Holders shall pay all underwriting discounts and commissions
attributable to securities sold for the account of the Holders pursuant to such
Demand Registration Statement or other registration statement filed pursuant to
Section 3 of this Agreement.
5. Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act, the Company will, and hereby does, indemnify
and hold harmless (i) in the case of any registration statement filed pursuant
to Sections 2 or 3, the Holder of any Common Stock covered by such registration
statement, its directors and officers, each broker who participates in such
offering or sale on behalf of a holder, each other person who participates as
an underwriter in the offering or sale of such securities, its directors and
officers and each other person, if any, who controls such Holder or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Holder or any
such director or officer or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement
11
or alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, 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 not misleading, and the Company will
reimburse such Holder and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Holder or any underwriter participating in the offering specifically for use in
the registration statement, and provided further that the Company shall not be
liable to any person who participates as an underwriter in the offering or sale
of Common Stock or to any other person, if any, who controls such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such person's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended,
within the time required by the Securities Act to the person asserting an
untrue statement or alleged untrue statement or omission or alleged omission at
or prior to the written confirmation of the sale of Common Stock to such person
if such statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
Holder.
(b) Unless the Company otherwise notifies the Holders as a
condition to including the Subject Shares in a registration statement, each
Holder agrees to indemnify and hold harmless (in the same manner and to the
same extent as set forth in subdivision (a) of this Section 5) the Company,
each director of the Company, each officer of the Company and each other
person, if any, who controls the Company within the meaning of the Securities
Act and each other person who participates as an underwriter in the offering or
sale of such securities, its directors and officers and each other person, if
any, who controls any such underwriter within
12
the meaning of the Securities Act, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such seller
specifically for use in the registration statement. Any such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling person and
shall survive the transfer of such securities by such seller. Such indemnity
shall be limited to the net proceeds from such offering received by such
indemnifying party. The parties expressly agree that for purposes of this
Agreement, the only information furnished to the Company by the Holders selling
Registrable Securities specifically for use in the registration statement will
be the information concerning such seller contained in the Prospectus under the
caption, "Principal and Selling Securityholders" (or substantially similar
caption).
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to
in the preceding subdivisions of this Section 5, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 5, except to the extent that the indemnifying
party has been materially prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that the
indemnifying party may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the indemnified party shall have the right to employ counsel to
represent the indemnified party and its controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the indemnified party against the indemnifying party under this
Section 5 if the employment of such counsel shall have been authorized in
13
writing by the indemnifying party in connection with the defense of such action
or, if in the written opinion of counsel to either the indemnifying party or
the indemnified party, representation of both parties by the same counsel would
be inappropriate due to actual or likely conflicts of interest between them,
and in that event the fees and expenses of one firm of separate counsel (in
addition to the fees and expenses of local counsel) for the indemnified parties
shall be paid as incurred by the indemnifying party. No indemnifying party
shall, without the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in the preceding
subdivisions of this Section 5 is unavailable to an indemnified party in
respect of any expense, loss, claim, damage or liability referred to therein,
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 expense, loss, claim, damage or liability. In determining the
amount of contribution to which an indemnified party is entitled, there shall
be considered such indemnified party's relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and other
equitable considerations appropriate under the circumstances. It is hereby
agreed that it would not necessarily be equitable if the amount of such
contribution were determined by pro rata or per capita allocation.
Notwithstanding the foregoing, no Holder of Registrable Securities shall be
required to contribute any amount in excess of the net proceeds received by
such Holder (net of underwriting discounts and commissions) from the sale of
such Registrable Securities in the offering which forms the basis for such
action or proceeding. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.
6. Condition to Company's Obligations. Notwithstanding any
other provision in this Agreement to the contrary, the Company shall have no
obligation to effect any registration of Registrable Securities pursuant to
this Agreement within 180 days of the date of the prospectus for the Offerings,
unless U.S.
14
Bancorp Xxxxx Xxxxxxx Inc. on behalf of the underwriters in the Offering shall
have given its prior written consent to such filing.
7. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correct answerback received),
telecopy or facsimile at the address or number designated below (if delivered
on a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the third business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company, to:
XxxxXxxxxxxx.Xxx Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to MidAmerican Holdings, to:
MidAmerican Energy Holdings Company
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Senior Vice President, Mergers and Acquisitions
Telecopy: (000) 000-0000
If to any other Holder,
to such name at such address as such Holder shall have
indicated in a written notice delivered to the other parties
to this Agreement.
Any party hereto may from time to time change its address for notices under this
Section 7 by giving at least 10 days' notice of such changes to the other
parties hereto.
15
8. Waivers. No waiver by any party of any default
with respect to any provision, condition or requirement hereof shall be deemed
to be a continuing waiver in the future thereof or a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
9. Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
10. Successors and Assigns; Amendments. (a) This Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and assigns, including for the benefit of those persons specified in
Section 11 hereof. If the Company is a party to a merger, consolidation or
other transaction in which all or part of the Registrable Securities are
converted or changed into securities of any other person, the Company shall
make appropriate provision for such other person to become a party to this
Agreement and to provide the registration and other rights with respect to the
securities of such other person. Except as provided in this Section 10, the
Company shall not assign this Agreement without the prior written consent of
the other parties hereto.
(b) This Agreement may not be amended except by a written
instrument executed by the parties hereto.
11. Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person other than a Permitted Transferee.
12. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware without regard to the principles of conflicts of laws.
13. Entire Agreement. This Agreement contains the entire
agreement of the parties hereto in respect of the subject matter hereof and
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof.
16
14. Execution. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
date hereof.
XXXXXXXXXXXX.XXX INC.
By:
--------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President
MIDAMERICAN ENERGY HOLDINGS COMPANY
By:
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
18
