EXHIBIT 99.08
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of November
8, 2002, by and among XCEL ENERGY INC., a Minnesota corporation, with
headquarters located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (the
"Company"), and the undersigned buyers (each, a "BUYER" and collectively, the
"BUYERS").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and among
the parties hereto of even date herewith (the "SECURITIES PURCHASE AGREEMENT"),
the Company has agreed, upon the terms and subject to the conditions of the
Securities Purchase Agreement, to issue and sell to each Buyer convertible notes
of the Company (the "FIRST NOTES"), which will be convertible into shares of the
Company's common stock, par value $2.50 per share (the "COMMON STOCK") (as
converted, the "FIRST CONVERSION SHARES") in accordance with the terms of the
First Notes; and
B. In connection with the Securities Purchase Agreement, each Buyer has
the right, upon the terms and subject to the conditions of the Securities
Purchase Agreement, to require the Company to issue and sell to such Buyer
convertible notes of the Company (the "FIRST CALL NOTES"), which will be
convertible into shares of Common Stock (as converted, the "FIRST CALL
CONVERSION SHARES") in accordance with the terms of the First Call Notes; and
C. In connection with the Securities Purchase Agreement, the Company
has agreed, upon the terms and subject to the conditions of the Securities
Purchase Agreement, to issue and sell to each Buyer convertible notes of the
Company (the "SECOND NOTES"), which will be convertible into shares of Common
Stock (as converted, the "SECOND CONVERSION SHARES") in accordance with the
terms of the Second Notes; and
D. In connection with the Securities Purchase Agreement, each Buyer has
the right, upon the terms and subject to the conditions of the Securities
Purchase Agreement, to require the Company to issue and sell to such Buyer
convertible notes of the Company (the "SECOND CALL NOTES"), which will be
convertible into shares of Common Stock (as converted, the "SECOND CALL
CONVERSION SHARES") in accordance with the terms of the Second Call Notes; and
E. In connection with the Securities Purchase Agreement, each Buyer may
be required to purchase, upon the terms and subject to the conditions of the
Securities Purchase Agreement, and the Company may issue and sell to each Buyer
convertible notes of the Company (the "THIRD NOTES"), which will be convertible
into shares of Common Stock (as converted, the "THIRD CONVERSION SHARES") in
accordance with the terms of the Third Notes; and
F. In connection with the Securities Purchase Agreement, each Buyer may
have the right, upon the terms and subject to the conditions of the Securities
Purchase Agreement, to require the Company to issue and sell to such Buyer
convertible notes of the Company (the "THIRD CALL NOTES"), which will be
convertible into shares of Common Stock (as converted, the "THIRD CALL
CONVERSION SHARES") in accordance with the terms of the Third Call Notes; and
G. In connection with the First Notes and the Second Notes, each Buyer
may have the right, upon the terms and subject to the conditions of the First
Notes and the Second Notes, respectively, to require the Company to issue to
such Buyer shares of Common Stock in connection with a Company Optional
Redemption (as defined in First Notes and the Second Notes) (the "COMPANY CALL
CONVERSION SHARES") in accordance with the terms of the First Notes and Second
Notes; and
H. To induce each Buyer to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 ACT"), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each
Buyer hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "COVERED SECURITIES" means the Notes and the Company Call
Conversion Shares.
(b) "FIRST CALL REGISTRABLE SECURITIES" means the First Call
Conversion Shares issued or issuable upon conversion of the First Call Notes and
any shares of capital stock issued or issuable with respect to the First Call
Conversion Shares or the First Call Notes as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitation on conversions of the First Call Notes.
(c) "FIRST CALL REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company filed under the 1933 Act
covering the First Call Registrable Securities and Second Call Registrable
Securities.
(d) "FIRST REGISTRABLE SECURITIES" means the First Conversion
Shares issued or issuable upon conversion of the First Notes and any shares of
capital stock issued or issuable with respect to the First Conversion Shares or
the First Notes as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitation on conversions of the First Notes.
(e) "FIRST REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company filed under the 1933 Act
covering the First Registrable Securities, the Second Registrable Securities and
the Third Registrable Securities.
(f) "INVESTOR" means a Buyer, any transferee or assignee
thereof to whom a Buyer assigns its rights under this Agreement and who agrees
to become bound by the provisions of this Agreement in accordance with Section 9
and any transferee or assignee thereof to whom a transferee or assignee assigns
its rights under this Agreement and who agrees to become bound by the provisions
of this Agreement in accordance with Section 9.
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(g) "MANDATORY EFFECTIVE DATE" means the First Mandatory
Effective Date, the First Call Mandatory Effective Date, the Third Call
Mandatory Effective Date and the Redemption Mandatory Effective Date (each as
defined below), as applicable.
(h) "MANDATORY FILING DATE" means the First Mandatory Filing
Date, the First Call Mandatory Filing Date, the Third Call Mandatory Filing Date
and the Redemption Mandatory Filing Date (each as defined below), as applicable.
(i) "NOTES" means the First Notes, the First Call Notes, the
Second Notes, the Second Call Notes, the Third Notes and the Third Call Notes.
(j) "PERSON" means a corporation, a limited liability company,
an association, a partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental agency.
(k) "REDEMPTION REGISTRABLE SECURITIES" means the Company Call
Conversion Shares and any shares of capital stock issued or issuable with
respect to the Company Call Conversion Shares as a result of any stock split,
stock dividend, recapitalization, exchange or similar event or otherwise.
(l) "REDEMPTION REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company filed under the 1933 Act
covering the Redemption Registrable Securities.
(m) "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and pursuant to
Rule 415 under the 1933 Act or any successor rule providing for offering
securities on a continuous basis ("RULE 415"), and the declaration or ordering
of effectiveness of such Registration Statement(s) by the United States
Securities and Exchange Commission (the "SEC").
(n) "REGISTRABLE SECURITIES" means the First Registrable
Securities, the First Call Registrable Securities, the Second Registrable
Securities, the Second Call Registrable Securities, the Third Registrable
Securities, the Third Call Registrable Securities and the Redemption Registrable
Securities; provided, however, that any such Registrable Securities shall cease
to be Registrable Securities when (a) a Registration Statement with respect to
the sale of such securities becomes effective under the 1933 Act and such
securities are disposed of in accordance with such Registration Statement, (b)
such securities are sold in accordance with Rule 144 (or any successor
provision) under the 1933 Act or (c) such securities become transferable without
any restrictions in accordance with Rule 144(k) (or any successor provision)
under the 0000 Xxx.
(o) "REGISTRATION STATEMENT" means the First Registration
Statement, the First Call Registration Statement, the Third Call Registration
Statement or the Redemption Registration Statement, as applicable.
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(p) "SECOND CALL REGISTRABLE SECURITIES" means the Second Call
Conversion Shares issued or issuable upon conversion of the Second Call Notes
and any shares of capital stock issued or issuable with respect to the Second
Call Conversion Shares or the Second Call Notes as a result of any stock split,
stock dividend, recapitalization, exchange or similar event or otherwise,
without regard to any limitation on conversions of the Second Call Notes.
(q) "SECOND REGISTRABLE SECURITIES" means the Second
Conversion Shares issued or issuable upon conversion of the Second Notes and any
shares of capital stock issued or issuable with respect to the Second Conversion
Shares or the Second Notes as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitation on conversions of the Second Notes.
(r) "THIRD CALL REGISTRABLE SECURITIES" means the Third Call
Conversion Shares issued or issuable upon conversion of the Third Call Notes and
any shares of capital stock issued or issuable with respect to the Third Call
Conversion Shares or the Third Call Notes as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitation on conversions of the Third Call Notes.
(s) "THIRD CALL REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company filed under the 1933 Act
covering the Third Call Registrable Securities.
(t) "THIRD REGISTRABLE SECURITIES" means the Third Conversion
Shares issued or issuable upon conversion of the Third Notes and any shares of
capital stock issued or issuable with respect to the Third Conversion Shares or
the Third Notes as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitation on conversions of the Third Notes.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Securities Purchase Agreement.
2. REGISTRATION.
(a) Mandatory Registration.
(i) First Mandatory Registration. The Company shall prepare, and, as
soon as practicable but in no event later than 130 days after the First
Closing Date (as defined in the Securities Purchase Agreement), subject
to extension for any Allowable Grace Period (as defined in Section
3(t)) (the "FIRST MANDATORY FILING DATE"), file with the SEC a First
Registration Statement or First Registration Statements (as is
necessary) on Form S-3 covering the resale of all of the First
Registrable Securities, the Second Registrable Securities and the Third
Registrable Securities. In the event that Form S-3 is unavailable for
such a registration, the Company shall use such other form as is
available for such a registration, subject to the provisions of Section
2(d). The initial First Registration Statement prepared pursuant hereto
shall register for resale at least that number of shares of Common
Stock equal to the product of (x) 1.15 and (y) the number of First
Registrable Securities, Second Registrable Securities and Third
Registrable Securities calculated as of the trading day immediately
preceding the date that the First Registration Statement is initially
filed with the SEC. The Company shall use its best efforts to have the
First
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Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than 180 days after the First
Closing Date, subject to extension for any Allowable Grace Period (as
defined in Section 3(t)) (the "MANDATORY EFFECTIVE DATE").
(ii) First Call Mandatory Registration. The Company shall prepare, and,
as soon as practicable but in no event later than 30 days after a First
Call Closing Date or a Second Call Closing Date (each as defined in the
Securities Purchase Agreement), subject to extension for any Allowable
Grace Period (as defined in Section 3(t)) (the "FIRST CALL MANDATORY
FILING DATE"), file with the SEC a First Call Registration Statement or
First Call Registration Statements (as is necessary) on Form S-3
covering the resale of all of the First Call Registrable Securities and
Second Call Registrable Securities then issued or issuable in
connection with outstanding Notes. In the event that Form S-3 is
unavailable for such a registration, the Company shall use such other
form as is available for such a registration, subject to the provisions
of Section 2(d). Each First Call Registration Statement prepared
pursuant hereto shall register for resale at least that number of
shares of Common Stock equal to the product of (x) 1.15 and (y) the
number of First Call Registrable Securities and Second Call Registrable
Securities (not covered by a previously-filed Registration Statement)
calculated as of the trading day immediately preceding the date that
the First Call Registration Statement is initially filed with the SEC.
The Company shall use its best efforts to have the First Call
Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than 90 days after each First Call
Closing Date, subject to extension for any Allowable Grace Period (as
defined in Section 3(t)) (a "FIRST CALL MANDATORY EFFECTIVE DATE").
(iii) Third Call Mandatory Registration. The Company shall prepare,
and, as soon as practicable but in no event later than 30 days after a
Third Call Closing Date (as defined in the Securities Purchase
Agreement), subject to extension for any Allowable Grace Period (as
defined in Section 3(t)) (the "THIRD CALL MANDATORY FILING DATE"), file
with the SEC a Third Call Registration Statement or Third Call
Registration Statements (as is necessary) on Form S-3 covering the
resale of all of the Third Call Registrable Securities then issued or
issuable in connection with outstanding Notes. In the event that Form
S-3 is unavailable for such a registration, the Company shall use such
other form as is available for such a registration, subject to the
provisions of Section 2(d). Each Third Call Registration Statement
prepared pursuant hereto shall register for resale at least that number
of shares of Common Stock equal to the product of (x) 1.15 and (y) the
number of Third Call Registrable Securities (not covered by a
previously-filed Registration Statement) calculated as of the trading
day immediately preceding the date that the Third Call Registration
Statement is initially filed with the SEC. The Company shall use its
best efforts to have the Third Call Registration Statement declared
effective by the SEC as soon as practicable, but in no event later than
90 days after the Third Call Closing Date, subject to extension for any
Allowable Grace Period (as defined in Section 3(t)) (the "THIRD CALL
MANDATORY EFFECTIVE DATE").
(iv) Redemption Mandatory Registration. The Company shall prepare, and,
as soon as practicable but in no event later than 30 days after the
Company Optional Redemption Date (as defined in the First Notes),
subject to extension for any Allowable Grace Period (as defined in
Section 3(t)) (the "REDEMPTION MANDATORY FILING DATE"), file with the
SEC a Redemption Registration Statement or Redemption Registration
Statements (as is necessary) on Form S-3 covering the resale of all of
the Redemption Registrable
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Securities. In the event that Form S-3 is unavailable for such a
registration, the Company shall use such other form as is available for
such a registration, subject to the provisions of Section 2(d). The
initial Redemption Registration Statement prepared pursuant hereto
shall register for resale at least that number of shares of Common
Stock equal to the product of (x) 1.00 and (y) the number of Redemption
Registrable Securities calculated as of the trading day immediately
preceding the date that the Redemption Registration Statement is
initially filed with the SEC. The Company shall use its best efforts to
have the Redemption Registration Statement declared effective by the
SEC as soon as practicable, but in no event later than 90 days after
the Redemption Closing Date, subject to extension for any Allowable
Grace Period (as defined in Section 3(t)) (the "REDEMPTION MANDATORY
EFFECTIVE DATE").
(b) Allocation of Registrable Securities. The initial number
of Registrable Securities included in any Registration Statement and each
increase in the number of Registrable Securities included therein shall be
allocated pro rata among the Investors based on the number of applicable
Registrable Securities held by each Investor at the time the Registration
Statement covering such initial number of Registrable Securities or increase
thereof is last filed with the SEC. In the event that an Investor sells or
otherwise transfers any of such Person's Registrable Securities included in any
Registration Statement in accordance with the terms of this Agreement, each
transferee shall be allocated a pro rata portion of the then remaining number of
Registrable Securities included in such Registration Statement for such
transferor. Any shares of Common Stock included in a Registration Statement and
which remain allocated to any Person which ceases to hold any applicable
Registrable Securities shall be allocated to the remaining Investors, pro rata
based on the number of applicable Registrable Securities then held by such
Investors.
(c) Legal Counsel. Subject to Section 5 hereof, the Buyers
holding a majority of the Registrable Securities shall have the right to select
one legal counsel to review the Registration Statement, any correspondence with
the SEC relating thereto and any other relevant matters in connection with any
offering pursuant to this Section 2 ("LEGAL COUNSEL"), which shall be Xxxxxxx
Xxxx & Xxxxx LLP or such other counsel as thereafter designated by the holders
of a majority of Registrable Securities. The Company shall reasonably cooperate
with Legal Counsel in performing the Company's obligations under this Agreement.
(d) Eligibility for Form S-3. The Company represents and
warrants that it does not currently meet the requirements for use of Form S-3
for registration of the resale of the Registrable Securities, but does meet the
requirements for the use of Form S-1 for registration of the resale of the
Registrable Securities. At any time while this Agreement is in effect, in the
event that Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of
the Registrable Securities on another appropriate form, reasonably acceptable to
the holders of a majority of the Registrable Securities, and (ii) undertake to
register the Registrable Securities on Form S-3 as soon as such form is
available, provided that the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the SEC.
(e) Sufficient Number of Shares Registered. In the event that
the number of shares available under (i) a Registration Statement filed pursuant
to Section 2(a) together with (ii) any Registration Statements filed pursuant to
this Section 2(e) is insufficient to cover the
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resale of 100% of the Registrable Securities required to be covered by such
Registration Statement or an Investor's allocated portion of the registered
shares pursuant to Section 2(b), the Company shall, subject to Section 3(t),
amend any such Registration Statement, or file a new Registration Statement (on
the short form available therefor, if applicable), or both, so as to cover at
least 100% of the Registrable Securities calculated as of the trading day
immediately preceding the date of the filing of such amendment or new
Registration Statement, in each case, as soon as practicable, but in any event
not later than 15 days after the necessity therefor arises. The Company shall
use its best efforts to cause such amendment and/or new Registration Statement
to become effective as soon as practicable following the filing thereof.
3. RELATED OBLIGATIONS.
In connection with the Company's obligation to file a Registration
Statement with the SEC pursuant to Section 2(a) or 2(e), the Company shall have
the following obligations:
(a) The Company shall submit to the SEC, within two (2)
Business Days after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the staff
has no further comments on a Registration Statement, as the case may be, a
request for acceleration of effectiveness of such Registration Statement to a
time and date not later than 48 hours after the submission of such request. The
Company shall keep a particular Registration Statement effective pursuant to
Rule 415 at all times until the earlier of (i) the date as of which all the
Investors are eligible to sell all of the Registrable Securities pursuant to
Rule 144(k) under the 1933 Act (or any successor thereto) or (ii) the date the
Investors have sold all the Covered Securities and Registrable Securities
pursuant to an effective Registration Statement (the "REGISTRATION PERIOD"). The
Company shall ensure that each Registration Statement (including any amendments
or supplements thereto and prospectuses contained therein) shall not, when it
becomes effective, 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, in light of the circumstances in which they were made, not
misleading.
(b) Subject to Section 3(t), the Company shall prepare and
file with the SEC such amendments (including post-effective amendments) and
supplements to a Registration Statement and the prospectus used in connection
with such Registration Statement, which prospectus is to be filed pursuant to
Rule 424 promulgated under the 1933 Act, as may be necessary to keep such
Registration Statement effective at all times during the Registration Period,
and, during such period, comply with the provisions of the 1933 Act with respect
to the disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant to
this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form
10-Q or Form 8-K or any analogous report under the Securities Exchange Act of
1934, as amended (the "1934 ACT"), the Company shall have incorporated such
report by reference into the Registration Statement, if applicable, or shall
file such amendments or supplements with the SEC on the same day on which the
1934 Act report is filed which created the requirement for the Company to amend
or supplement the Registration Statement. Without limiting the generality of the
obligation set forth in this Section 3(b), the Company shall, from time to time
as may be required by applicable laws, file a supplement to the prospectus
included in a Registration Statement which updates the
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information contained in the Registration Statement relating to (i) the
aggregate principal amount of Registrable Securities outstanding, (ii) the
conversion price of the Registrable Securities, (iii) the total number of shares
of Common Stock issuable upon conversion of all outstanding Registrable
Securities, (iv) the number of shares of Common Stock beneficially owned by each
Investor whose shares are included in the Registration Statement, and (v) the
number of shares of Common Stock being offered by each Investor whose shares are
included in the Registration Statement. The Company shall file any such
supplement with the SEC under Rule 424(b)(3) of the 1933 Act, or if the
supplement may not be filed under Rule 424(b)(3) of the 1933 Act, then under
such other applicable provisions of the 1933 Act.
(c) The Company shall permit Legal Counsel to review and
comment upon a Registration Statement and all amendments and supplements thereto
at least five (5) Business Days prior to their filing with the SEC, and not file
any document in a form to which Legal Counsel reasonably objects in writing
prior to the filing date. The Company shall not submit a request for
acceleration of the effectiveness of a Registration Statement or any amendment
or supplement thereto without the prior approval of Legal Counsel, which consent
shall not be unreasonably withheld. The Company shall furnish to Legal Counsel,
without charge, (i) any correspondence from the SEC or the staff of the SEC to
the Company or its representatives relating to any Registration Statement, (ii)
promptly after the same is prepared and filed with the SEC, one copy of any
Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits and (iii) upon the effectiveness of any Registration Statement, one
copy of the prospectus included in such Registration Statement and all
amendments and supplements thereto.
(d) The Company shall furnish to each Investor whose
Registrable Securities are included in any Registration Statement, without
charge, (i) promptly after the same is prepared and filed with the SEC, at least
one copy of such Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (ii) upon the effectiveness of any Registration
Statement, ten copies of the prospectus included in such Registration Statement
and all amendments and supplements thereto (or such other number of copies as
such Investor may reasonably request) and (iii) such other documents, including
copies of any preliminary or final prospectus, as such Investor may reasonably
request from time to time in order to facilitate the disposition of the
Registrable Securities owned by such Investor.
(e) The Company shall use its best efforts to (i) register and
qualify, unless an exemption from registration or qualification applies, all the
Registrable Securities covered by a Registration Statement under all securities
or "blue sky" laws of such jurisdictions in the United States, (ii) prepare and
file in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (x) qualify as a foreign corporation in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(e), (y)
subject itself to general taxation in any such jurisdiction, or (z) file a
general consent to service of process in any such jurisdiction. The Company
shall promptly notify Legal Counsel and each Investor who holds Registrable
Securities of the receipt by the
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Company of any notification with respect to the suspension of the registration
or qualification of any of the Registrable Securities for sale under the
securities or "blue sky" laws of any jurisdiction in the United States or its
receipt of actual notice of the initiation or threatening of any proceeding for
such purpose.
(f) The Company shall (i) notify Legal Counsel and each
Investor in writing (provided that in no event shall such notice include any
material, nonpublic information) as promptly as practicable upon its discovery
that the prospectus included in a Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, (ii)
promptly prepare a supplement or amendment to such Registration Statement to
correct such untrue statement or omission, and (iii) deliver ten copies of such
supplement or amendment to Legal Counsel and each Investor (or such other number
of copies as Legal Counsel or such Investor may reasonably request). The Company
shall also promptly notify Legal Counsel and each Investor in writing (provided
that in no event shall such notice include any material, nonpublic information)
(x) when a prospectus or any prospectus supplement or post-effective amendment
has been filed, and when a Registration Statement or any post-effective
amendment has become effective (notification of such effectiveness shall be
delivered to Legal Counsel and each Investor by facsimile on the same day of
such effectiveness and by overnight mail), (y) of any request by the SEC for
amendments or supplements to a Registration Statement or related prospectus or
related information, and (z) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(g) The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify (provided that in no event shall such
notification include any material, nonpublic information) Legal Counsel and each
Investor who holds Registrable Securities being sold of the issuance of such
order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
(h) At the request of any Investor to satisfy its obligations,
if any, in connection with offerings under the 1933 Act, the Company shall
furnish to such Investor, on the date of the effectiveness of the Registration
Statement and thereafter from time to time on such dates as an Investor may
reasonably request (i) a letter, dated such date, from the Company's independent
certified public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the Investors, and (ii) an opinion, dated as of
such date, of counsel representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in an
underwritten public offering, addressed to the Investors.
(i) At the reasonable request of an Investor, the Company
shall make available for inspection by (i) a single representative of the
Investors, (ii) Legal Counsel and (iii) one firm of accountants retained by the
Investors (collectively, the "INSPECTORS") all pertinent financial and other
records, and pertinent corporate documents and properties of the Company
(collectively, the "RECORDS"), as shall be reasonably deemed necessary by such
Inspector to satisfy its due diligence investigation under the 1933 Act, and
cause the Company's officers,
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directors and employees to supply all information which any Inspector may
reasonably request that is customarily supplied in connection with such a
transaction; provided, however, that each Inspector shall hold in strict
confidence and shall not make any disclosure (except to an Investor) or use of
any Record or other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified, unless
(a) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in any Registration Statement or is otherwise required
under the 1933 Act, (b) the release of such Records is ordered pursuant to a
final, non-appealable subpoena or order from a court or government body of
competent jurisdiction, or (c) the information in such Records has been made
generally available to the public other than by disclosure in violation of this
or any other agreement of which the Inspector has knowledge. Each Investor
agrees that it shall, upon learning that disclosure of such Records is sought in
or by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential.
(j) The Company shall hold in confidence and not make any
disclosure of information concerning an Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement or (v) such information has been made available to the Company by a
third party in good faith and not under or in breach of a requirement of
confidentiality. The Company agrees that it shall, upon learning that disclosure
of such information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
written notice to such Investor and allow such Investor, at the Investor's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause
all the Registrable Securities covered by a Registration Statement to be listed
on each securities exchange on which securities of the same class or series
issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange, or
(ii) secure designation and quotation of all the Registrable Securities covered
by the Registration Statement on the Nasdaq National Market System or, if,
despite the Company's best efforts to satisfy the preceding clause (i) or (ii),
the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to
secure the inclusion for quotation on The Nasdaq SmallCap Market for such
Registrable Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register with the National Association
of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable
Securities. The Company shall pay all fees and expenses in connection with
satisfying its obligation under this Section 3(k).
(l) The Company shall cooperate with the Investors who hold
Registrable Securities being offered to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing the
Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as the case may
be, as the Investors may reasonably request and registered in such names as the
Investors may request.
10
(m) The Company shall provide a transfer agent and registrar
of all such Registrable Securities not later than the effective date of the
applicable Registration Statement.
(n) If requested by an Investor, the Company as promptly as
practicable shall: (i) incorporate in a prospectus supplement or post-effective
amendment to the extent required by the 1933 Act such information as an Investor
requests to be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being offered or sold, the purchase
price being paid therefor, the persons selling the Registrable Securities and
any other terms of the offering of the Registrable Securities; (ii) make all
required filings of such prospectus supplement or post-effective amendment
promptly after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment; and (iii) supplement or make
amendments to any Registration Statement if reasonably requested by a holder of
such Registrable Securities.
(o) The Company shall use its best efforts to cause the
Registrable Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or authorities
in the United States as may be necessary to consummate the disposition of such
Registrable Securities.
(p) The Company shall make generally available to its security
holders as soon as practical, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 0000 Xxx) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
(q) The Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the SEC in connection with any
registration hereunder.
(r) Within two (2) Business Days after any Registration
Statement which includes the applicable Registrable Securities is ordered
effective by the SEC, the Company shall deliver, and shall cause legal counsel
for the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Investors whose Registrable Securities are
included in such Registration Statement) confirmation that such Registration
Statement has been declared effective by the SEC in the form attached hereto as
Exhibit A.
(s) The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Investors of Registrable
Securities pursuant to a Registration Statement.
(t) Notwithstanding anything in this Agreement to the
contrary, the Company shall have the right to defer filing any Registration
Statement or, at any time after a Registration Statement has been filed with the
SEC, the Company may suspend sales under any such filed Registration Statement
or delay the disclosure of material, nonpublic information concerning the
Company, if in the good faith opinion of the Board of Directors of the Company,
after consultation with its outside counsel to be certain that any such
disclosure is not required, it is in the best interest of the Company to do so
(a "GRACE PERIOD"); provided, that the Company shall promptly (i) notify each
Investor in writing of the existence of material, nonpublic information
11
giving rise to a Grace Period (provided that in no event shall such notice
include any material, nonpublic information) and the date on which the Grace
Period will begin, and (ii) notify each Investor in writing of the date on which
the Grace Period ends; and, provided further, that no Grace Period shall exceed
10 consecutive days and during any 365 day period such Grace Periods shall not
exceed an aggregate of 30 days (an "ALLOWABLE GRACE PERIOD"). For purposes of
determining the length of a Grace Period above, the Grace Period shall begin on
and include the date that each Investor receives the notice referred to in
clause (i) above and shall end on the date for which the Company provides the
notice referred to in clause (ii) above (not to exceed 10 days). The provisions
of Sections 2(a), 2(e), 3(a), 3(b), 3(g) and the first sentence of Section 3(f)
hereof shall not be applicable during the period of any Allowable Grace Period.
Notwithstanding anything to the contrary, the Company shall cause its transfer
agent to deliver unlegended shares of Common Stock to a transferee of an
Investor in accordance with the terms of the Securities Purchase Agreement in
connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the Investor's receipt of
the notice of a Grace Period and for which the Investor has not yet settled.
4. OBLIGATIONS OF THE INVESTORS.
(a) At least five (5) Business Days prior to the first
anticipated filing date of a Registration Statement or an amendment thereto, the
Company shall notify each Investor in writing of the information the Company
requires from each such Investor if such Investor elects to have any of such
Investor's Registrable Securities included in such Registration Statement or,
with respect to an amendment or supplement, if such Investor's Registrable
Securities are included in such Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable Securities of a
particular Investor that such Investor shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the
Company may reasonably request. If an Investor fails to provide the Company with
the information so requested which the Company reasonably requires within five
(5) Business Days after the Investor's receipt of such request, then the
applicable Mandatory Filing Date, Mandatory Effective Date and the 15-day period
referred to in Section 2(e) shall be extended solely with respect to such
Investor by one day for each day after such fifth (5th) Business Day that the
Investor fails to provide such information; provided, however, that the failure
of an Investor to timely provide such information pursuant to the Company's
request shall not otherwise affect the Company's obligations under this
Agreement to the other Investors; provided, further, however, that any Investor
which fails to provide the Company with such information within the applicable
time period set forth above in response to a request prior to the filing of a
Registration Statement or amendment or supplement thereto shall bear the costs
actually incurred by the Company of any additional Registration Statement or
amendment(s) or supplement(s) thereto which the Company is required to file due
solely to such failure.
(b) Each Investor, by such Investor's acceptance of the
Registrable Securities, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Investor has notified the Company
in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from such Registration Statement.
12
(c) Each Investor agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 3(g)
or the first sentence of 3(f) or notice from the Company of a Grace Period, such
Investor will immediately discontinue disposition of Registrable Securities
pursuant to any Registration Statement(s) covering such Registrable Securities
until such Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(g) or the first sentence of 3(f) or receipt
of notice that no supplement or amendment is required or that the Grace Period
has ended. Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a transferee of
an Investor in accordance with the terms of the Securities Purchase Agreement in
connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the Investor's receipt of
a notice from the Company of the happening of any event of the kind described in
Section 3(g) or the first sentence of 3(f) or notice from the Company of a Grace
Period and for which the Investor has not yet settled.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than underwriting discounts and
brokerage commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees, and
fees and disbursements of counsel for the Company shall be paid by the Company.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will,
and hereby does, indemnify, hold harmless and defend each Investor, the
directors, officers, partners, employees, agents, representatives of, and each
Person, if any, who controls any Investor within the meaning of the 1933 Act or
the 1934 Act (each, an "INDEMNIFIED PERSON"), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, reasonable
attorneys' fees, amounts paid in settlement or expenses, joint or several,
(collectively, "CLAIMS") incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether or
not an indemnified party is or may be a party thereto ("INDEMNIFIED DAMAGES"),
to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other "blue sky" laws of any jurisdiction in
which Registrable Securities are offered ("BLUE SKY FILING"), or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any
13
material fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading,
(iii) any violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement or (iv) any material
violation of this Agreement (the matters in the foregoing clauses (i) through
(iv) being, collectively, "VIOLATIONS"). Subject to Section 6(d), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are incurred
and are due and payable, for any legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a) and the agreement with respect to
contribution contained in Section 7: (i) shall not apply to a Claim by an
Indemnified Person arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(d); (ii) shall not be available to the extent such Claim
is based on a failure of the Investor to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely made
available by the Company pursuant to Section 3(d); and (iii) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9.
(b) In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees to severally and not
jointly indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a), the Company, each of its directors, each
of its officers who signs the Registration Statement, each Person, if any, who
controls the Company within the meaning of the 1933 Act or the 1934 Act (each an
"INDEMNIFIED PARTY") against any Claim or Indemnified Damages to which any of
them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with
such Registration Statement; and, subject to Section 6(d), such Investor will
reimburse any legal or other reasonable expenses incurred by them in connection
with investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 6(b) and the agreement with
respect to contribution contained in Section 7 shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior
written consent of such Investor, which consent shall not be unreasonably
withheld; provided, further, however, that the Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified Damages as does
not exceed the net proceeds to such Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any prospectus shall not inure to
the benefit of any Indemnified Party if the untrue statement or omission of
material fact contained in the prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented.
14
(c) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action or proceeding (including any governmental action or proceeding) involving
a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this Section
6, deliver to the indemnifying party a written notice of the commencement
thereof, and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be. In any such proceeding, any
Indemnified Person or Indemnified Party may retain its own counsel, but the fees
and expenses of that counsel will be at the expense of that Indemnified Person
or Indemnified Party, as the case may be, unless (i) the indemnifying party and
the Indemnified Person or Indemnified Party, as applicable, shall have mutually
agreed to the retention of that counsel, (ii) the indemnifying party does not
assume the defense of such proceeding in a timely manner or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the Indemnified Person or Indemnified Party, as
applicable, and the indemnified party reasonably objects to such assumption on
the ground that there may be legal defenses available to it that are different
from or in addition to those available to the indemnifying party or another
indemnifying party. The Company shall pay reasonable fees for only one separate
legal counsel for the Investors, and such legal counsel shall be selected by the
Investors holding a majority in interest of the Registrable Securities included
in the Registration Statement to which the Claim relates. The Indemnified Party
or Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or Claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its prior written consent, provided, however, that
the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written consent of the
Indemnified Party or Indemnified Person, consent to entry of any judgment or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim or litigation. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties, firms
or corporations relating to the matter for which indemnification has been made.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action.
(d) The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages
are incurred.
15
(e) The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no person involved in the sale of Registrable Securities which person is
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person involved in such
sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities pursuant to such Registration
Statement.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investors the benefits
of Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the Investors to sell
securities of the Company to the public without registration ("RULE 144"), the
Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act so long as
the Company remains subject to such requirements (it being understood that
nothing herein shall limit the Company's obligations under Section 4(c) of the
Securities Purchase Agreement) and the filing of such reports and other
documents is required for the applicable provisions of Rule 144; and
(c) furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
1933 Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested to
permit the investors to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights under this Agreement shall be automatically
assignable by the Investors to any transferee of all or any portion of
Registrable Securities if: (i) the Investor agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such transfer or
assignment; (ii) the Company is, within a reasonable time after such transfer or
assignment,
16
furnished with written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such registration rights
are being transferred or assigned; (iii) immediately following such transfer or
assignment the further disposition of such securities by the transferee or
assignee is restricted under the 1933 Act and applicable state securities laws;
(iv) at or before the time the Company receives the written notice contemplated
by clause (ii) of this sentence the transferee or assignee provides the Company
with a writing agreeing to be bound by all of the provisions contained herein;
and (v) such transfer shall have been made in accordance with the applicable
requirements of the Securities Purchase Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investors who then hold a majority of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 10 shall be binding
upon each Investor and the Company. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Registrable
Securities. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of this Agreement unless
the same consideration also is offered to all of the parties to this Agreement.
11. MISCELLANEOUS.
(a) A Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) Business Day after deposit
with an overnight courier service, in each case properly addressed to the party
to receive the same. The addresses and facsimile numbers for such communications
shall be:
If to the Company:
Xcel Energy Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
17
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to Legal Counsel:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers attached hereto, with copies to such Buyer's representatives as set forth
on the Schedule of Buyers to the Securities Purchase Agreement, or to such other
address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party
five days prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the sender's
facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (C) provided by an overnight
courier service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in accordance with clause
(i), (ii) or (iii) above, respectively.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of Illinois, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Illinois or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Illinois. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting the City of Chicago, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be
18
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
Each party hereby irrevocably waives any right it may have, and agrees not to
request, a jury trial for the adjudication of any dispute hereunder or in
connection herewith or arising out of this Agreement or any transaction
contemplated hereby.
(e) This Agreement, the Securities Purchase Agreement and the
other Transaction Documents (as defined in the Securities Purchase Agreement)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, the Securities Purchase Agreement and the other
Transaction Documents supersede all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof and thereof.
(f) Subject to the requirements of Section 9, this Agreement
shall inure to the benefit of and be binding upon the permitted successors and
assigns of each of the parties hereto.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) All consents and other determinations to be made by the
Investors pursuant to this Agreement shall be made, unless otherwise specified
in this Agreement, by Investors holding a majority of the Registrable
Securities. Any consent or other determination approved by Investors holding a
majority of the Registrable Securities shall be binding on all Investors.
(k) The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent and no rules
of strict construction will be applied against any party.
(l) 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.
19
[SIGNATURE PAGE FOLLOWS]
20
IN WITNESS WHEREOF, each Buyer and the Company have caused this
Registration Rights Agreement to be duly executed as of day and year first above
written.
COMPANY: BUYERS:
XCEL ENERGY INC. CITADEL EQUITY FUND LTD.
By: Citadel Limited Partnership, Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its General Partner
By:
-------------------------------------
Name:
Title: Chief Executive Officer By:
-----------------------------------------------------
Name: Xxxxxxx X. Simpler
Title: Managing Director
CITADEL CREDIT TRADING LTD.
By: Citadel Limited Partnership, Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its General Partner
By:
-----------------------------------------------------
Name: Xxxxxxx X. Simpler
Title: Managing Director
XXXXXXX INVESTMENT FUND LTD.
By: Citadel Limited Partnership, Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its General Partner
By:
-----------------------------------------------------
Name: Xxxxxxx X. Simpler
Title: Managing Director
SCHEDULE OF BUYERS
BUYER ADDRESS AND FACSIMILE NUMBER
---------------------------------- ---------------------------------------
Citadel Equity Fund Ltd. c/o Citadel Investment Group, L.L.C.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Simpler
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Citadel Credit Trading Ltd. c/o Citadel Investment Group, L.L.C.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Simpler
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Xxxxxxx Investment Fund Ltd. c/o Citadel Investment Group, L.L.C.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Simpler
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[TRANSFER AGENT]
ATTN:
-------------------------------
RE:
XCEL ENERGY INC.
Ladies and Gentlemen:
We are counsel to
XCEL ENERGY INC., a Minnesota corporation (the
"COMPANY"), and have represented the Company in connection with that certain
Securities Purchase Agreement (the "PURCHASE AGREEMENT") entered into by and
among the Company and the buyers named therein (collectively, the "HOLDERS")
pursuant to which the Company issued to the Holders convertible notes of the
Company (the "Notes") convertible into shares of the Company's common stock, par
value $2.50 per share (the "COMMON STOCK"). Pursuant to the Purchase Agreement,
the Company also has entered into a
Registration Rights Agreement with the
Holders (the "
REGISTRATION RIGHTS AGREEMENT") pursuant to which the Company
agreed, among other things, to register the Registrable Securities (as defined
in the
Registration Rights Agreement), including the shares of Common Stock
issuable upon conversion of the Notes, under the Securities Act of 1933, as
amended (the "1933 ACT"). In connection with the Company's obligations under the
Registration Rights Agreement, on ____________ ___, 200__, the Company filed a
Registration Statement on Form S-_ (File No. 333-_____________) (the
"REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"SEC") relating to the Registrable Securities which names each of the Holders as
a selling stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge,
after telephonic inquiry of a member of the SEC's staff, that any stop order
suspending its effectiveness has been issued or that any proceedings for that
purpose are pending before, or threatened by, the SEC and the Registrable
Securities are available for resale under the 1933 Act pursuant to the
Registration Statement.
Very truly yours,
[ISSUER'S COUNSEL]
By:
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cc: [LIST HOLDERS]
