1
EXHIBIT 10.8
FORM OF
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and
entered into as of [________ __, 2000], between The Southern Company, a Delaware
corporation ("Southern"), and Southern Energy, Inc., a Delaware corporation and
a wholly owned subsidiary of Southern (the "Company").
WHEREAS, Southern and the Company have entered into a Master Separation
and Distribution Agreement and certain ancillary agreements, each effective
on [________ __ 2000], pursuant to which Southern and Southern Energy have
agreed to take certain actions to separate the Southern Energy Group from the
Southern Group (each as defined in the Master Separation and Distribution
Agreement), and, in connection with such separation, for Southern Energy to
acquire certain assets from Southern, and for Southern to acquire certain
entities currently associated with the Southern Energy Business from Southern
Energy;
WHEREAS, Southern currently owns all of the issued and outstanding
shares of the Company's common stock (the "Common Stock");
WHEREAS, the Company intends to offer and sell to the public (the
"IPO") by means of a Registration Statement (File No. __________) initially
filed with the Securities and Exchange Commission (the "SEC") on Form S-1 on
April [__], 2000 (the "Registration Statement") shares of its Common Stock;
WHEREAS, immediately following the consummation of the IPO, Southern is
expected to own in excess of 80% of the outstanding shares of Common Stock;
WHEREAS, Southern currently contemplates that, several months following
the IPO, Southern will distribute to the holders of its common stock, by means
of a pro rata distribution, all of the shares of Southern Energy common stock
then owned by Southern (the "Distribution"); and
WHEREAS, Southern and the Company intend that the Distribution will be
tax-free to Southern and its stockholders under Section 355 of the Code; and
WHEREAS, if Southern determines not to complete the Distribution, or
the Distribution is abandoned without Southern divesting itself of 100% of the
Common Stock it owns, Southern and the Company desire to make certain
arrangements to provide Southern with registration rights with respect to shares
of Common Stock it then holds;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency
2
of which is hereby acknowledged and intending to be legally bound hereby, the
parties hereby agree as follows:
Section 1. Effectiveness of Agreement; Term.
1.1 Effective Date. This Agreement shall become effective upon the date
that Southern provides to the Company written notice (the "Abandonment Notice")
that it no longer intends to proceed with or complete the Distribution (the
"Effective Date").
1.2 Shares Covered. This Agreement covers those shares of Common Stock
that are held by Southern immediately following the IPO and continue to be held
by Southern as of the date of the Abandonment Notice (subject to the provisions
of Section 7, the "Shares"). The "Shares" shall include any securities issued or
issuable with respect to the Shares by way of a stock dividend or a stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. Except as set forth in the immediately
preceding sentence, the "Shares" shall not include any shares of Common Stock
acquired by Southern after the completion of the IPO.
Southern and any Permitted Transferees (as defined in Section 2.5) are
each referred to herein as a "Holder" and collectively as the "Holders" and the
Holders of Shares proposed to be included in any registration under this
Agreement are each referred to herein as a "Selling Holder" and collectively as
the "Selling Holders."
Section 2. Demand Registration.
2.1 Notice. Upon the terms and subject to the conditions set forth
herein, upon written notice of any Holder requesting that the Company effect the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of any or all of the Shares held by it, which notice shall specify the
intended method or methods of disposition of such Shares (which methods may
include, without limitation, a Shelf Registration, a Convertible Registration or
an Exchange Registration (as such terms are defined in Section 2.6)), the
Company will promptly give written notice of the proposed registration to all
other Holders and will use its best efforts to effect (at the earliest
reasonable date) the registration under the Securities Act of such Shares (and
the Shares of any other Holders joining in such request as are specified in a
written notice received by the Company within 20 days after receipt of the
Company's written notice of the proposed registration) for disposition in
accordance with the intended method or methods of disposition stated in such
request (each registration request pursuant to this Section 2.1 is sometimes
referred to herein as a "Demand Registration"); provided, however, that:
(a) the Company shall not be obligated to effect registration with
respect to Shares pursuant to this Section 2 within 90 days after the effective
date of a previous registration, other than a Shelf Registration, effected with
respect to Shares pursuant to this Section 2;
2
3
(b) if, while a registration request is pending pursuant to this
Section 2, the Company determines in the good faith judgment of the general
counsel of the Company that such registration (i) would reasonably be expected
to have a material adverse effect on any existing proposal or plans by the
Company or any of its subsidiaries to engage in any material acquisition,
merger, consolidation, tender offer, other business combination, reorganization,
securities offering or other material transaction or, (ii) would require
disclosure of material information, the disclosure of which would have a
material adverse effect on the Company, the Company may postpone for up to 90
days the filing or effectiveness of such registration; provided, however, that
the Company may delay a Demand Registration hereunder only two times in any 12
month period, reduced by the number of times during such 12 month period that
notice of a Sales Blackout Period (as herein defined) has been given.
(c) except in the case of a Convertible Registration or an Exchange
Registration, any Demand Registration requested hereunder shall request the
registration of Shares representing at least __% of the then-outstanding shares
of Common Stock, based on the number of such shares outstanding as reported by
the Company in its most recent annual or quarterly report filed with the SEC
under the Securities Exchange Act of 1934, as amended; and
(d) if a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Shares requested to be included in such offering exceeds the number of
Shares which can be sold in an orderly manner in such offering within a price
range acceptable to the Holders of a majority of the Shares initially requesting
such registration or without materially adversely affecting the market for the
Common Stock, the Company shall include in such registration the number of
Shares requested to be included therein which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering and without materially adversely affecting the market for the Common
Stock, pro rata among the respective Holders thereof on the basis of the amount
of Shares owned by each Holder requesting inclusion of Shares in such
registration.
2.2 Registration Expenses. The Company shall pay 20% of all
Registration Expenses (as defined in Section 8) for any registration requested
pursuant to this Section 2 (including any registration that is delayed or
withdrawn), and the balance of such Registration Expenses shall be paid by the
Holders requesting such registration, pro rata on the basis of the amount of
Shares owned by each Holder and requested to be included in such registration.
2.3 Selection of Professionals. The Holders of a majority of the Shares
included in any Demand Registration shall have the right to select the
investment banker(s) and manager(s) to administer the offering; provided,
however, that if such Holders select an investment banker or manager that was
not one of the lead managers of the IPO, such investment banker or manager shall
not administer such offering if the Company reasonably objects thereto. The
Holders of a majority of the Shares included in any Demand Registration shall
have the right to select the financial printer, the solicitation and/or exchange
agent (if any) and one counsel for the Selling Holders. The Company shall select
its own outside counsel and independent auditors. The Company also shall be
entitled to designate any broker or other agent through whom the Holders shall
sell into the public market any Shares pursuant to a Shelf Registration that is
not an underwritten offering.
2.4 Third Person Shares. The Company shall have the right to cause the
registration of securities for sale for the account of any Person (including the
Company) other than the Selling Holders (the "Third Person Shares") in any
registration of the
3
4
Shares requested pursuant to this Section 2 so long as the Third Person Shares
are disposed of in accordance with the intended method or methods of disposition
requested pursuant to this Section 2; provided, however, that the Company shall
not have the right to cause the registration of such securities of such other
Persons if the registration requested pursuant to this Section 2 is a
Convertible Registration or an Exchange Registration.
If a Demand Registration in which the Company proposes to include Third
Person Shares is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Shares and Third
Person Shares requested to be included in such offering exceeds the number of
Shares and Third Person Shares which can be sold in an orderly manner in such
offering within a price range acceptable to the Holders of a majority of the
Shares initially requesting such registration or without materially adversely
affecting the market for the Common Stock, the Company shall not include in such
registration any Third Person Shares unless all of the Shares initially
requested to be included therein are so included.
2.5 Permitted Transferees. As used in this Agreement, "Permitted
Transferees" shall mean any transferee, whether direct or indirect, of Shares so
designated by Southern (or a subsequent holder) in a written notice to the
Company as provided for in Section 9.7, provided that such transferee is, at the
time of such transfer, an affiliate of the transferor within the meaning of Rule
501 under the Securities Act or any successor provision. Any Permitted
Transferees of the Shares shall be subject to and bound by all of the terms and
conditions herein applicable to Holders. The notice required by this Section 2.5
shall be signed by both the transferring Holder and the Permitted Transferees so
designated and shall include an undertaking by the Permitted Transferees to
comply with the terms and conditions of this Agreement applicable to Holders. In
the event of a transfer of any of the Shares to a transferee that is not a
Permitted Transferee, the Shares so transferred shall no longer be subject to
this Agreement.
2.6 Shelf Registration; Convertible Registration; Exchange
Registration. With respect to any Demand Registration, the requesting Holders
may request the Company to effect a registration of the Shares (a) under a
registration statement pursuant to Rule 415 under the Securities Act (or any
successor rule) (a "Shelf Registration"); (b) in connection with such Holders'
registration under the Securities Act of securities (the "Convertible
Securities") convertible into, exercisable for or otherwise related to the
Shares (a "Convertible Registration"); or (c) in connection with such Holders'
offer to exchange the Shares for any debt or equity securities of such Holders,
a subsidiary or affiliate thereof or any other Person (an "Exchange
Registration").
2.7 SEC Form. The Company shall use its best efforts to cause Demand
Registrations to be registered on Form S-3 (or any successor form), and if the
Company is not then eligible under the Securities Act to use Form S-3, Demand
Registrations shall be registered on Form S-1 (or any successor form). If a
Demand Registration is a Convertible Registration or an Exchange Registration,
the Company shall effect such registration on the appropriate Form under the
Securities Act for such registrations. The
4
5
Company shall use its best efforts to become eligible to use Form S-3 and, after
becoming eligible to use Form S-3, shall use its best efforts to remain so
eligible.
2.8 Other Registration Rights. The Company shall not grant to any
Persons the right to request the Company to register any equity securities of
the Company, or any securities convertible or exchangeable into or exercisable
for such securities unless such rights are consistent with the rights granted
under this Agreement.
Section 3. Piggyback Registrations.
3.1 Notice and Registration. If the Company proposes to register any of
its securities for public sale under the Securities Act (whether proposed to be
offered for sale by the Company or any other Person), on a form and in a manner
which would permit registration of the Shares for sale to the public under the
Securities Act (a "Piggyback Registration"), it will give prompt written notice
to the Holders of its intention to do so, and upon the written request of any or
all of the Holders delivered to the Company within 20 days after the giving of
any such notice (which request shall specify the Shares intended to be disposed
of by such Holders), the Company will use its best efforts to effect, in
connection with the registration of such other securities, the registration
under the Securities Act of all of the Shares which the Company has been so
requested to register by such Holders (which shall then become Selling Holders),
to the extent required to permit the disposition (in accordance with the same
method of disposition as the Company proposes to use to dispose of the other
securities) of the Shares to be so registered; provided, however, that:
(a) if, at any time after giving such written notice of its intention
to register any of its other securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such other securities, the
Company may, at its election, give written notice of such determination to the
Selling Holders (or, if prior to delivery of the Holders' written request
described above in this Section 3.1, the Holders) and thereupon the Company
shall be relieved of its obligation to register such Shares in connection with
the registration of such other securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as provided
in Section 3.3), without prejudice, however, to the rights (if any) of any
Selling Holders immediately to request (subject to the terms and conditions of
Section 2) that such registration be effected as a registration under Section 2;
(b) the Company shall not be required to effect any registration of the
Shares under this Section 3 incidental to the registration of any of its
securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
employee benefit plans of the Company;
(c) if a Piggyback Registration is an underwritten primary registration
on behalf of the Company and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration
5
6
exceeds the number which can be sold in such offering without materially
adversely affecting the marketability of the offering or the market for the
Common Stock, the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Shares requested to be
included in such registration, pro rata among the Holders of such Shares on the
basis of the number of Shares owned by each such Holder, and (iii) third, any
other securities requested to be included in such registration; and
(d) if a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities entitled to demand
registration thereof and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially adversely affecting the marketability of the offering or the market
for the Common Stock, the Company shall include in such registration (i) first,
the securities requested to be included therein by the holders requesting such
registration and the Shares requested to be included in such registration, pro
rata among the holders of such securities on the basis of the number of
securities owned by each such holder, and (ii) second, any other securities
requested to be included in such registration. No registration of the Shares
effected under this Section 3 shall relieve the Company of its obligation to
effect a registration of Shares pursuant to Section 2.
3.2 Selection of Professionals. If any Piggyback Registration is an
underwritten offering and any of the investment banker(s) or manager(s) selected
to administer the offering was not one of the managers of the IPO, such
investment banker or manager shall not administer such offering if the Holders
of a majority of the Shares included in such Piggyback Registration reasonably
object thereto. The Holders of a majority of the Shares included in any
Piggyback Registration shall have the right to select one counsel for the
Selling Holders. The Company shall select its own outside counsel and
independent auditors.
3.3 Registration Expenses. The Company will pay all of the Registration
Expenses in connection with any registration pursuant to this Section 3 except
that the Holders of any Shares included in any such registration shall pay the
registration fee for such Shares.
Section 4. Registration Procedures.
4.1 Registration and Qualification. If and whenever the Company is
required to use its best efforts to effect the registration of any of the Shares
under the Securities Act as provided in Sections 2 and 3, including an
underwritten offering pursuant to a Shelf Registration, the Company will as
promptly as is practicable:
(a) prepare and file with the SEC a registration statement with respect
to such Shares and use its best efforts to cause such registration statement to
become effective (provided that before filing a registration statement or
prospectus or any amendments or supplement thereto, the Company shall furnish to
the counsel selected by the Holders of a majority of the Shares covered by such
registration statement copies of
6
7
all such documents proposed to be filed (which documents shall be subject to the
review and comment of such counsel);
(b) except in the case of a Shelf Registration, Convertible
Registration or Exchange Registration, 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 and to comply with the provisions of the Securities Act with
respect to the disposition of all of the Shares until the earlier of (i) such
time as all of such Shares have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement or (ii) the
expiration of nine months after such registration statement becomes effective;
(c) in the case of a Shelf Registration (but not including any
Convertible Registration), 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 and
to comply with the provisions of the Securities Act with respect to the
disposition of all Shares subject thereto for a period ending on the earlier of
(i) 18 months after the effective date of such registration statement and (ii)
the date on which all the Shares subject thereto have been sold pursuant to such
registration statement (the "Shelf Effective Period");
(d) in the case of a Convertible Registration or an Exchange
Registration, 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 and to comply
with the provisions of the Securities Act with respect to the disposition of all
of the Shares subject thereto until such time as the rules, regulations and
requirements of the Securities Act and the terms of the Convertible Securities
no longer require such Shares to be registered under the Securities Act (the
"Convertible Effective Period");
(e) furnish to the Selling Holders and to any underwriter of such
Shares 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 and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents as the Selling Holders or such underwriter may reasonably
request;
(f) use its best efforts to register or qualify all of the Shares
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as the Selling Holders or any underwriter of such
Shares shall reasonably request, and do any and all other acts and things which
may be necessary or advisable to enable the Selling Holders or any underwriter
to consummate the disposition in such jurisdictions of the Shares covered by
such registration statement, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation
7
8
in any jurisdiction where it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of process
in any such jurisdiction;
(g) (i) furnish to the Selling Holders, addressed to them, an opinion
of counsel for the Company and (ii) use its best efforts to furnish to the
Selling Holders, addressed to them, a "cold comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the Selling Holders may reasonably request, in each case, in form and
substance and as of the dates reasonably satisfactory to the Selling Holders;
(h) immediately notify the Selling Holders, at any time when a
prospectus relating to a registration pursuant to Section 2 or 3 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, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and at the request of the Selling Holders prepare and furnish to the
Selling Holders a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(i) permit any Selling Holder which Selling Holder, in its sole and
exclusive judgment, might be deemed to be an underwriter or a controlling person
of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such Holder and
its counsel should be included;
(j) to make available members of management of the Company, as selected
by the Holders of a majority of the Shares included in such registration, for
assistance in the selling effort relating to the Shares covered by such
registration, including, but not limited to, the participation of such members
of the Company's management in road show presentations.
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company shall use it best efforts promptly to obtain the
withdrawal of such order; and
8
9
(l) use its best efforts to cause Shares covered by such registration
statement to be registered with or approved by such other government agencies or
authorities as may be necessary to enable the sellers thereof to consummate the
disposition of such Shares.
The Company may require the Selling Holders to furnish the Company with
such information regarding the Selling Holders and the distribution of such
Shares as the Company may from time to time reasonably request in writing and as
shall be required by law, the SEC or any securities exchange on which any shares
of Common Stock are then listed for trading in connection with any registration.
4.2 Underwriting. If requested by the underwriters for any underwritten
offering in connection with a registration requested hereunder (including any
registration under Section 3 which involves, in whole or in part, an
underwritten offering), the Company will enter into an underwriting agreement
with such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities to the
effect and to the extent provided in Section 6 and the provision of opinions of
counsel and accountants' letters to the effect and to the extent provided in
Section 4.1(g). The Company may require that the Shares requested to be
registered pursuant to Section 3 be included in such underwriting on the same
terms and conditions as shall be applicable to the Other Securities being sold
through underwriters under such registration; provided , however, that no
Selling Holder shall be required to make any representations or warranties to
the Company or the underwriters (other than representations and warranties
regarding such Holder and such Holder's intended method of distribution) or to
undertake any indemnification obligations to the Company or the underwriters
with respect thereto, except as otherwise provided in Section 6 hereof. The
Selling Holders shall be parties to any such underwriting agreement, and the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Selling Holders.
4.3 Blackout Periods for Shelf Registrations.
(a) At any time when a Shelf Registration effected pursuant to Section
2 relating to the Shares is effective, upon written notice from the Company to
the Selling Holders that the Company determines in the good faith judgment of
the general counsel of the Company that the Selling Holders' sale of the Shares
pursuant to the Shelf Registration (i) would reasonably be expected to have a
material adverse effect on any existing proposal or plans by the Company or any
of its subsidiaries to engage in any material acquisition, merger,
consolidation, tender offer, other business combination, reorganization,
securities offering or other material transaction, or (ii) would require
disclosure of material information, the disclosure of which would have a
material adverse effect on the Company (an "Information Blackout"), the Selling
Holders shall suspend sales of the Shares pursuant to such Shelf Registration
until the earlier of (i) the date upon which such material information is
disclosed to the public or ceases to be material, (ii) 90 days after the general
counsel of the Company makes such good faith determination or (iii) such time as
the Company notifies the Selling Holders
9
10
that sales pursuant to such Shelf Registration may be resumed (the number of
days from such suspension of sales of the Selling Holders until the day when
such sales may be resumed hereunder is hereinafter called a "Sales Blackout
Period"); provided that the Company shall not be permitted to impose a Sales
Blackout Period for more than two times in any 12 month period, reduced by the
number of times during such 12 month period that the filing or effectiveness of
a registration has been postponed pursuant to Section 2.1(b) hereof.
(b) If there is an Information Blackout and the Selling Holders do not
notify the Company in writing of their desire to cancel such Shelf Registration,
the period set forth in Section 4.1(c)(i) shall be extended for a number of days
equal to the number of days in the Sales Blackout Period.
4.4 Listing. In connection with the registration of any offering of the
Shares pursuant to this Agreement, the Company agrees to use its best efforts to
effect the listing of such Shares on any securities exchange on which any shares
of the Common Stock are then listed or otherwise facilitate the public trading
of such Shares.
4.5 Holdback Agreements.
(a) The Company shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any registration statement in
connection with a Demand Registration (other than a Shelf Registration) or a
Piggyback Registration, except pursuant to registrations on Form S-8 or any
successor form or unless the underwriters managing any such public offering
otherwise agree.
(b) If the Holders of Shares notify the Company in writing that they
intend to effect an underwritten sale of Shares registered pursuant to a Shelf
Registration pursuant to Section 2 hereof, the Company shall not effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for its equity securities,
during the seven days prior to and during the 90-day period beginning on the
date such notice is received, except pursuant to registrations on Form S-8 or
any successor form or unless the underwriters managing any such public offering
otherwise agree.
(c) If the Company completes an underwritten registration with respect
to any of its securities (whether offered for sale by the Company or any other
Person) on a form and in a manner that would have permitted registration of the
Shares and no Holder requested the inclusion of any Shares in such registration,
the Holders shall not effect any public sales or distributions of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, until the termination of the holdback period
required from the Company by any underwriters in connection with such previous
registration, but in no event more than 90 days from the effective date of such
registration.
Section 5. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering the Shares
under the Securities Act and each sale of the Shares thereunder, the Company
will give the Selling
10
11
Holders and the underwriters, if any, and their respective counsel and
accountants, access to its financial and other records, pertinent corporate
documents and properties of the Company and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of the Selling Holders and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
Section 6. Indemnification.
(a) In the event of any registration of any of the Shares hereunder,
the Company will enter into customary indemnification arrangements to indemnify
and hold harmless each of the Selling Holders, each of their respective
directors and officers, each Person (as defined in (e) below) who participates
as an underwriter in the offering or sale of such securities, each officer and
director of each underwriter, and each Person, if any, who controls each such
Selling Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Covered Persons") against any losses, claims, damages,
liabilities and expenses, joint or several, to which such Person may be subject
under the Securities Act or otherwise insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any related registration statement filed under the
Securities Act, any preliminary prospectus or final prospectus included therein,
or any amendment or supplement thereto, or any document incorporated by
reference therein, or (ii) 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 each such Covered Person,
as incurred, for any legal or any other expenses reasonably incurred by such
Covered Person in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, however, 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 or final prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by such
Selling Holder or such underwriter specifically for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any such Covered Person and shall survive
the transfer of such securities by the Selling Holders.
(b) Each of the Selling Holders, by virtue of exercising its respective
registration rights hereunder, agree and undertake to enter into customary
indemnification arrangements to indemnify and hold harmless (in the same manner
and to the same extent as set forth in clause (a) of this Section 6) the
Company, its directors and officers, each Person who participates as an
underwriter in the offering or sale of such securities, each
11
12
officer and director of each underwriter, and each Person, if any, who controls
the Company or any such underwriter within the meaning of the Securities Act,
with respect to any statement in or omission from such registration statement,
any preliminary prospectus or final prospectus included therein, or any
amendment or supplement thereto, if such statement or omission is contained in
written information furnished by such Selling Holder to the Company specifically
for inclusion in such registration statement or prospectus; provided, however,
that the obligation to indemnify shall be individual, not joint and several, for
each Selling Holder and shall be limited to the net amount of proceeds received
by such Selling Holder from the sale of Shares pursuant to such registration
statement. 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 Person and shall survive the transfer of the registered securities by
the Selling Holders.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided, however, that the failure to give
prompt notice shall not impair any Person's rights to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) Indemnification similar to that specified in the preceding
subdivisions of this Section 6 (with appropriate modifications) shall be given
by the Company and the Selling Holders with respect to any required registration
or other qualification of such Shares under any federal or state law or
regulation of governmental authority other than the Securities Act.
(e) "Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity, or any
department, agency or political subdivision thereof.
Section 7. Benefits and Termination of Registration Rights. The Holders
may exercise the registration rights granted hereunder in such manner and
proportions as they shall agree among themselves. The registration rights
hereunder shall cease to apply to any particular Shares and such securities
shall cease to be Shares when: (a) a registration statement with respect to the
sale of such Shares shall have become effective under the
12
13
Securities Act and such Shares shall have been disposed of in accordance with
such registration statement; (b) such Shares shall have been sold to the public
pursuant to Rule 144 under the Securities Act (or any successor provision); (c)
such Shares shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force; (d) such Shares shall have ceased to be outstanding and
(e) in the case of Shares held by a Permitted Transferee, when such Shares
become eligible for sale pursuant to Rule 144(k) under the Securities Act (or
any successor provision).
Section 8. Registration Expenses. As used in this Agreement, the term
"Registration Expenses" means all expenses incident to the Company's performance
of or compliance with the registration requirements set forth in this Agreement
including, without limitation, the following: (a) all registration and filing
fees; (b) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares to be disposed of
under the Securities Act; (c) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto and the mailing and delivering of copies thereof to the underwriters and
dealers and directly to securityholders in the case of an Exchange Registration;
(d) the cost of printing and producing any agreements among underwriters,
underwriting agreements, and blue sky or legal investment memoranda, any selling
agreements and any amendments thereto or other documents in connection with the
offering, sale or delivery of the Shares to be disposed of; (e) all expenses in
connection with the qualification of the Shares to be disposed of for offering
and sale under state securities laws, including the fees and disbursements of
counsel for the underwriters in connection with such qualification and in
connection with any blue sky and legal investment surveys; (f) the filing fees
incident to securing any required review by the New York Stock Exchange and any
other securities exchange on which the Common Stock is then traded or listed of
the terms of the sale of the Shares to be disposed of and the trading or listing
of all such Shares on each such exchange; (g) the costs of preparing stock
certificates; (h) the costs and charges of the Company's transfer agent and
registrar; and (i) the fees and disbursements of any custodians, solicitation
agents, information agents and/or exchange agents. Registration Expenses shall
not include underwriting discounts and underwriters' commissions attributable to
the Shares being registered for sale on behalf of the Selling Holders, which
shall be paid by the Selling Holders.
Section 9. Miscellaneous.
9.1 No Inconsistent Agreements. The Company shall not on or after the
date of this Agreement enter into any agreement with respect to its securities
that violates or subordinates the rights expressly granted to the Holders in
this Agreement. The Company shall not take any action, or permit any change to
occur, with respect to its securities
13
14
which would adversely affect the ability of the Holders of Shares to include
such Shares in a registration undertaken pursuant to this Agreement.
9.2 Complete Agreement. Except as otherwise set forth in this
Agreement, this Agreement shall constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and shall supersede all
prior agreements and understandings, whether written or oral, between the
parties with respect to such subject matter.
9.3 Authority. Each of the parties hereto represents to the other that
(i) it has the corporate power and authority to execute, deliver and perform
this Agreement, (ii) the execution, delivery and performance of this Agreement
by it has been duly authorized by all necessary corporate action, (iii) it has
duly and validly executed and delivered this Agreement, and (iv) this Agreement
is a legal, valid and binding obligation, enforceable against it in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equity principles.
9.4 Assignment. This Agreement shall be binding on and inure to the
benefit of and be enforceable by the parties hereto and with respect to the
Company, its respective successors and assigns, and any Permitted Transferees.
9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia (other than the laws regarding
conflicts of laws) as to all matters of validity, construction, effect,
performance and remedies, executed in and to be performed in that State.
9.6 Severability. In the event that any part of this Agreement is
declared by a court or other judicial or administrative body to be null, void or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Agreement shall remain in full force and
effect.
9.7 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given: (i) on the date of service if served personally on the party to whom
notice is to be given; (ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission; (iii) on the day
after delivery to Federal Express or similar overnight courier or the Express
Mail service maintained by the United States Postal Service; or (iv) on the
fifth day after mailing, if mailed to the party to whom notice is to be given,
by first class mail, registered or certified, postage prepaid and properly
addressed, to the party as follows:
14
15
If to Southern:
with a copy to:
If to any other Holder, the address indicated for such Holder in the
Company's stock transfer records
with a copy, so long as Southern owns any Shares, to:
If to the Company:
Any party may change its address for the purpose of this Section 9.7 by
giving the other party written notice of its new address in the manner set forth
above.
9.8 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.9 Remedies. Each of Southern and the Company shall be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys' fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. Each of Southern and the Company acknowledges and agrees that under
certain circumstances the breach by Southern or any of its affiliates or the
Company or any of its affiliates of a term or provision of this Agreement will
materially and irreparably harm the other party, that money damages will
accordingly not be an adequate remedy for such breach and that the
non-defaulting party, in its sole discretion and in addition to its rights under
this Agreement and any other remedies it may have at law or in equity, may apply
to any court of law or equity of
15
16
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
breach of the provisions of this Agreement.
9.10 Waivers. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver shall
be effective only if it is in writing signed by the Company and the Holders of a
majority of the Shares. Unless otherwise expressly provided in this Agreement,
no delay or omission on the part of any party in exercising any right or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right or privilege under this Agreement
operate as a waiver of any other right or privilege under this Agreement nor
shall any single or partial exercise of any right or privilege preclude any
other or further exercise thereof or the exercise of any other right or
privilege under this Agreement. No failure by either party to take any action or
assert any right or privilege hereunder shall be deemed to be a waiver of such
right or privilege in the event of the continuation or repetition of the
circumstances giving rise to such right unless expressly waived in writing by
the party against whom the existence of such waiver is asserted.
9.11 Amendment and Modification. This Agreement may not be amended or
modified in any respect except by a written agreement signed by the Company and
the Holders of a majority of the Shares.
9.12 Section and Paragraph Headings. The section and paragraph headings
in this Agreement are for reference purposes only, are not part of the agreement
of the parties hereto, and shall not affect the meaning or interpretation of
this Agreement. All references to days or months shall be deemed references to
calendar days or months. Unless the context otherwise requires, any reference to
a "Section" shall be deemed to refer to a section of this Agreement. The words
"hereof," "herein" and "hereunder" and words of similar import referring to this
Agreement refer to this Agreement as a whole and not to any particular provision
of this Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, unless otherwise specifically provided, they shall be
deemed to be followed by the words "without limitation." This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing the document to be drafted.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile signature.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date and year first written above.
16
17
THE SOUTHERN COMPANY
By:
---------------------------------------
Name:
Title:
SOUTHERN ENERGY, INC.
By:
---------------------------------------
Name:
Title:
17
