EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of May 31,
2001, between MIRANT CORPORATION, a Delaware corporation (the "Company"), and
XXXXXXX XXXXX XXXXXX INC. (the "Initial Purchaser"). This Agreement is made
pursuant to the Purchase Agreement, between the Company, as the issuer of 2.5%
Convertible Senior Debentures due 2021, and the Initial Purchaser. The
Debentures are to be issued pursuant to the provisions of an Indenture dated as
of May 31, 2001 between the Company and Bankers Trust Company, as Trustee (the
"Trustee"). The Debentures will be convertible into fully paid, nonassessable
shares of common stock, par value $0.01 per share, of the Company on the terms,
and subject to the conditions set forth in the Indenture. To induce the Initial
Purchaser to purchase the Debentures, the Company has agreed to provide the
registration rights set forth in this Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Applicable Conversion Price" means, as of any date of
determination, the Applicable Principal Amount per $1,000 principal amount
of Debentures as of such date of determination divided by the Conversion
Rate in effect as of such date of determination or, if no Debentures are
then outstanding, the Conversion Rate that would be in effect were such
Debentures then outstanding without giving effect to any upward interest
adjustment provisions.
(b) "Applicable Principal Amount" means, as of any date of
determination, with respect to each $1,000 principal amount at maturity of
Debentures, the sum of the principal amount of such Debentures plus accrued
and unpaid interest (excluding any accrued and unpaid interest payable as
cash interest) with respect to such Debentures through such date of
determination or, if no Debentures are then outstanding, such sum
calculated as if such Debentures were then outstanding.
(c) "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
(d) "Closing Date" means the date on which the Debentures are
initially issued.
(e) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(f) "Conversion Rate" shall have the meaning assigned such term in the
Indenture.
(g) "Debentures" means the 2.5% Convertible Senior Debentures due
2021, to be issued under the Indenture and sold by the Company to the
Initial Purchaser, and securities (other than the Shares) of the Company
issued in exchange therefor or in lieu thereof pursuant to the Indenture.
(h) "Deferral Notice" has the meaning assigned thereto in Section
3(g).
(i) "Deferral Period" has the meaning assigned thereto in Section
3(g).
(j) "Effective Time" means the time and date as of which the
Commission declares the Shelf Registration effective or as of which the
Shelf Registration otherwise becomes effective.
(k) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(l) "Holder" means the Initial Purchaser for so long as it owns any
Registrable Securities, and such of its respective successors and assigns
who acquire Registrable Securities, directly or indirectly, from such
person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(m) "Indenture" means the Indenture dated as of May 31, 2001, between
the Company and Bankers Trust Company, as Trustee, as the same shall be
amended from time to time.
(n) "Material Event" has the meaning assigned thereto in Section
3(b)(vi).
(o) "Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Security Holder Notice and Questionnaire attached as Appendix A to the
Offering Memorandum of the Company dated May 24, 2001 relating to the
Debentures.
(p) "Notice Holder" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company on or prior to such date.
(q) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(r) "Prospectus" means the prospectus included in any Shelf
Registration, as amended or supplemented by any amendment or prospectus
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supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.
(s) "Purchase Agreement" means the Purchase Agreement dated May 24,
2001 between the Company and the Initial Purchaser.
(t) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) in
the circumstances contemplated by Section 2(a) of this Agreement, a
registration statement registering such Securities under the Securities Act
has been declared or becomes effective and such Securities have been sold
or otherwise transferred by the Holder thereof pursuant to such effective
registration statement; (ii) such Securities are sold pursuant to Rule 144
under circumstances in which any legend borne by such Securities relating
to restrictions on transferability thereof, under the Securities Act or
otherwise, is removed or such Securities are eligible to be sold pursuant
to paragraph (k) of Rule 144; or (iii) such Securities shall cease to be
outstanding (including, in the case of the Debentures, upon conversion into
Shares).
(u) "Registration Default" has the meaning assigned thereto in Section
2(c).
(v) "Registration Default Damages" has the meaning assigned thereto in
Section 2(c).
(w) "Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company with this Agreement,
including without limitation: (i) all Commission or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees; (ii)
all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities) and compliance with the
rules of the NASD; (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
registration statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and
distributing any registration statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing,
printing and distributing any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement; (iv) all rating agency fees; (v) the fees
and disbursements of counsel for the Company and of the independent
certified public accountants of the Company, including the expenses of any
"comfort" letters required by or incident to such performance and
compliance; (vi) the fees and expenses of the Trustee, and any paying
agent, exchange agent or custodian; (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Debentures on any
securities exchange or exchanges; and (viii) the reasonable fees and
expenses of any experts retained by the Company in connection with the
registration statement.
(x) "Resale Period" means the period beginning on the date the Shelf
Registration becomes effective and ending on the earlier of (i) the date
the Shelf Registration ceases to be effective or (ii) the second
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anniversary of the Closing Date or any later closing date for the sale of
Optional Securities (as defined in the Purchase Agreement).
(y) "Restricted Holder" means (i) a Holder that is an affiliate of the
Company within the meaning of Rule 405 or (ii) a broker-dealer who receives
Securities for its own account but did not acquire the Securities as a
result of market-making activities or other trading activities.
(z) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act.
(aa) "Securities" means, collectively, the Debentures and the Shares.
(bb) "Securities Act" means the Securities Act of 1933, as amended.
(cc) "Shares" means the shares of common stock of the Company, par
value $.01 per share, into which the Debentures are convertible or that
have been issued upon any conversion from Debentures into common stock of
the Company.
(dd) "Shelf Registration" has the meaning assigned thereto in Section
2(a).
(ee) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(ff) "Underwriting Majority" means on any date, Holders holding at
least 66 2/3% of the aggregate principal amount of the Registrable
Securities outstanding on such date; provided, that for the purpose of this
definition, a holder of Shares that constitute Registrable Securities and
issued upon conversion of Debentures shall be deemed to hold an aggregate
principal amount of Registrable Securities (in addition to the principal
amount of Debentures held by such holder) equal to (x) the number of Shares
that are Registrable Securities held by such holder multiplied by (y) the
then Applicable Conversion Price.
(gg) "Underwritten Offering" means a registration in which securities
of the Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act as promptly as
practicable but in any event on or prior to October 29, 2001 a "shelf"
registration statement providing for the registration of, and the sale on a
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continuous or delayed basis by the Holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the Commission (the "Shelf Registration"). The Company agrees to use its
commercially reasonable efforts to cause the Shelf Registration to become
or be declared effective within 210 days after the Closing Date and to keep
such Shelf Registration continuously effective for a period ending on the
earlier of (i) the second anniversary of the Closing Date or any closing
date for Optional Securities or (ii) such time as there are no longer any
Registrable Securities outstanding. The Company further agrees to
supplement or make amendments to the Shelf Registration, as and when
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration or by the Securities Act
or rules and regulations thereunder for shelf registration, and the Company
agrees to furnish to the Holders of the Registrable Securities copies of
any such supplement or amendment upon request following its filing with the
Commission.
(b) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration and
related Prospectus, it will do so only in accordance with this Section 2(b)
and Section 3(g) of this Agreement. Each Holder of Registrable Securities
wishing to sell Registrable Securities pursuant to a Shelf Registration and
related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least three (3) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration. From and after the
date the Shelf Registration is declared effective, the Company shall, from
time to time after the date a Notice and Questionnaire is delivered, (i) if
required by applicable law, file with the Commission a post-effective
amendment to the Shelf Registration or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any
other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security Holder in the Shelf
Registration and the related Prospectus in such a manner as to permit such
Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file
a post-effective amendment to the Shelf Registration, the Company shall use
its commercially reasonable efforts to cause such post-effective amendment
to be declared effective under the Securities Act as promptly as is
practicable; (ii) provide such Holder copies of any documents filed
pursuant to Section 2(b)(i) upon request; and (iii) notify such Holder as
promptly as practicable after the effectiveness under the Securities Act of
any post-effective amendment filed pursuant to Section 2(b)(i); provided
that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with
Section 3(g) of this Agreement. Notwithstanding anything contained herein
to the contrary, the Company shall be under no obligation to name any
Holder that is not a Notice Holder as a selling security Holder in any
Shelf Registration or related Prospectus; provided, however, that any
Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(b) (whether or not such Holder was a Notice Holder at the time
the Shelf Registration was declared effective) shall be named as a selling
security Holder in the Shelf Registration or related Prospectus in
accordance with the requirements of this Section 2(b).
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(c) If any of the following events (any such event a "Registration
Default") shall occur, then liquidated damages (the "Registration Default
Damages") shall become payable in respect of the Securities as follows:
(i) if the Shelf Registration is not filed with the Commission on
or prior to October 29, 2001, then commencing on the day after October
29, 2001, Registration Default Damages shall accrue on the Applicable
Principal Amount of any outstanding Debentures that are Registrable
Securities and the Applicable Conversion Price of any outstanding
Shares that are Registrable Securities at a rate of 0.25% per annum
for the first 120 days following October 29, 2001 and 0.5% per annum
thereafter; or
(ii) if the Shelf Registration is not declared effective by the
Commission on or prior to the 210th day following the Closing Date,
then commencing on the 211th day after the Closing Date, Registration
Default Damages shall accrue on the Applicable Principal Amount of any
outstanding Debentures that are Registrable Securities and the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the first 120
days following such 211th day and 0.5% per annum thereafter; or
(iii) if the Shelf Registration has been declared effective but
such Shelf Registration ceases to be effective (other than pursuant to
Section 3(g) of this Agreement) at any time prior to the earlier of
(A) two years from the Closing Date or Optional Closing Date or (B)
the time at which there ceases to be any Registrable Securities
outstanding, then commencing on the day such Shelf Registration ceases
to be effective, Registration Default Damages shall accrue on the
Applicable Principal Amount of any outstanding Debentures that are
Registrable Securities and the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities at a rate of 0.25%
per annum for the first 120 days following such date on which the
Shelf Registration ceases to be effective and 0.5% per annum
thereafter; or
(iv) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 3(g) of this Agreement, then commencing on the day
the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period, Registration
Default Damages shall accrue on the Applicable Principal Amount of any
outstanding Debentures that are Registrable Securities and the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the first 120
days and 0.5% per annum thereafter;
provided, however, that the Registration Default Damages rate on the
Securities shall not exceed in the aggregate 0.5% per annum; provided
further, however, that (1) upon the filing of the Shelf Registration (in
the case of clause (i) above), (2) upon the effectiveness of the Shelf
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Registration (in the case of clause (ii) above), (3) upon the effectiveness
of the Shelf Registration which had ceased to remain effective (in the case
of clause (iii) above), (4) upon the termination of the Deferral Period
that caused the limit on the aggregate duration of Deferral Periods in a
period set forth in Section 3(g) to be exceeded (in the case of clause (iv)
above) or (5) upon the termination of certain transfer restrictions on the
Securities as a result of the application of Rule 144(k), Registration
Default Damages on the Securities as a result of such clause, as the case
may be, shall cease to accrue.
(d) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) hereof. Each
Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration.
(e) Any reference herein to a registration statement shall be deemed
to include any document incorporated therein by reference as of the
applicable Effective Time and any reference herein to any post-effective
amendment to a registration statement shall be deemed to include any
document incorporated therein by reference as of a time after such
Effective Time.
(f) Notwithstanding any other provision of this Agreement, no Holder
of Registrable Securities who does not comply with the provisions of
Section 3(d), if applicable, shall be entitled to receive Registration
Default Damages unless and until such Holder complies with the provisions
of such section, if applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2 of this Agreement:
(a) At the Effective Time of the Shelf Registration, the Company shall
qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to the
Shelf Registration, the Company shall:
(i) prepare and file with the Commission a registration statement
with respect to the Shelf Registration on any form which may be
utilized by the Company and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing by the Holders of the
Registrable Securities, and use its commercially reasonable efforts to
cause such registration statement to become effective in accordance
with Section 2(a) above;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the Prospectus included
therein as may be necessary to effect and maintain the effectiveness
of such registration statement for the period specified in Section
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2(a) above and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such registration statement, and furnish to the Holders of the
Registrable Securities, upon request, copies of any such supplement or
amendment simultaneously with or prior to its being used or filed with
the Commission;
(iii) comply, as to all matters within the Company's control,
with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the Holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the Holders of the Registrable
Securities to be included in such registration statement, (B) the
underwriters (which term, for purposes of this Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) the sales
or placement agent, if any, therefor, (D) counsel for such
underwriters or agent and (E) not more than one counsel for all the
Holders of such Registrable Securities who so request of the Company
in writing the opportunity to participate in the preparation of such
registration statement, upon request, each Prospectus included therein
or filed with the Commission and each amendment or supplement thereto;
(v) if reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a registration
statement, make reasonably available during normal business hours by a
representative of the Holders of the Registrable Securities and the
other persons referred to in Section 3(b)(iv), such financial and
other information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a matter
of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt
prior written notice of such requirement and the opportunity to
contest the same or seek an appropriate protective order), or (C) such
information is required to be set forth in such registration statement
or the Prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such
Prospectus in order that such registration statement, Prospectus,
amendment or supplement, as the case may be, does not contain an
untrue statement of a material fact or omit to state therein a
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material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vi) promptly notify the selling Holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof named in the
Shelf Registration or a supplement thereto, and confirm such notice in
writing, (A) when such registration statement or the Prospectus
included therein or any Prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (B) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or the initiation or written threat of any proceedings for that
purpose, (C) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or written
threat of any proceeding for such purpose, (D) of the occurrence of
(but not the nature of or details concerning) any event or the
existence of any fact (a "Material Event") as a result of which any
Shelf Registration shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or any
Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided,
however, that no notice by the Company shall be required pursuant to
this clause (D) in the event that the Company either promptly files a
Prospectus supplement to update the Prospectus or a Current Report on
Form 8-K or other appropriate Exchange Act report that is incorporated
by reference into the Shelf Registration, which, in either case,
contains the requisite information with respect to such Material Event
that results in such Shelf Registration no longer containing any
untrue statement of material fact or omitting to state a material fact
necessary to make the statements contained therein not misleading),
(E) of the determination by the Company that a post-effective
amendment to a Shelf Registration will be filed with the Commission,
which notice may, at the discretion of the Company (or as required
pursuant to Section 3(g)), state that it constitutes a Deferral
Notice, in which event the provisions of Section 3(g) shall apply or
(F) at any time when a Prospectus is required to be delivered under
the Securities Act, that such registration statement, Prospectus,
Prospectus supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder;
(vii) use its commercially reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Holder of Registrable Securities,
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promptly incorporate in a Prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission relating to the terms of the sale of
such Registrable Securities, including information with respect to the
principal amount at maturity or number of Registrable Securities being
sold by such Holder or agent or to any underwriters, the name and
description of such Holder, agent or underwriter, the offering price
of such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold by such Holder
or agent or to such underwriters; and make all required filings of
such Prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(ix) upon request, furnish to each Holder of Registrable
Securities, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred to in
Section 3(b)(iv), an executed copy (or, in the case of a Holder of
Registrable Securities, a conformed copy) of such registration
statement, each such amendment or supplement thereto (in each case
including all exhibits thereto) and such number of copies of such
registration statement (excluding exhibits thereto) and of the
Prospectus included in such registration statement (including each
preliminary Prospectus and any summary Prospectus), in conformity in
all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder; and the Company hereby
consents to the use of such Prospectus (including any such preliminary
or summary Prospectus) and any amendment or supplement thereto by each
such Holder and by any such agent and underwriter, in each case in the
form most recently provided to such person by the Company in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus (including any such preliminary Prospectus)
or any supplement or amendment thereto; and
(x) use its commercially reasonable efforts to (A) register or
qualify the Registrable Securities to be included in such registration
statement under such securities laws or blue sky laws of such United
States jurisdictions as any Holder of such Registrable Securities and
each placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, and (B) keep such registrations
or qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to
remain effective under Section 2(a) and for so long as may be
necessary to enable any such Holder, agent or underwriter to complete
its distribution of Securities pursuant to such registration statement
but in any event not later than the date through which the Company is
required to keep the Shelf Registration effective pursuant to Section
2(a); provided, however, that the Company shall not be required for
any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(b)(x), (2) consent to general
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service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between
it and its stockholders.
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company, such
obligation shall be subject to the provision of such information by
such party; provided that the Company shall use its commercially
reasonable efforts to obtain the necessary information from any party
responsible for providing such information.
(c) In the event that the Company would be required, pursuant to
Section 3(b)(vi)(D), to notify the selling Holders of Registrable
Securities, the placement or sales agent, if any, therefor or the managing
underwriters, if any, thereof named in the Shelf Registration or a
supplement thereto of the existence of the circumstances described therein,
the Company shall prepare and furnish to each such Holder, to each
placement or sales agent, if any, and to each such underwriter, if any, a
reasonable number of copies of a Prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities, such
Prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder. Each Holder of
Registrable Securities agrees that upon receipt of any notice from the
Company, pursuant to Section 3(b)(vi)(D), such Holder shall forthwith
discontinue (and cause any placement or sales agent or underwriters acting
on their behalf to discontinue) the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable
Securities until such Holder (i) shall have received copies of such amended
or supplemented Prospectus and, if so directed by the Company, such Holder
shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Company that the
disposition of Registrable Securities pursuant to the Shelf Registration
may continue.
(d) The Company may require each Holder of Registrable Securities as
to which any registration pursuant to Section 2(a) is being effected to
furnish to the Company such information regarding such Holder and such
Holder's intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, but only
to the extent that such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event
in either case as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material
fact regarding such Holder or such Holder's intended method of disposition
of such Registrable Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of disposition of
such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) Until the expiration of two years after the Closing Date or any
later closing date for the sale of Optional Securities, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them
except pursuant to an effective registration statement under the Securities
Act.
(f) Upon the occurrence of a Material Event, the Company shall as
promptly as practicable prepare and file a post-effective amendment to the
Shelf Registration or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf
Registration and Prospectus so that such Shelf Registration does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective
amendment to a Shelf Registration, use all commercially reasonable efforts
to cause it to be declared effective as promptly as is reasonably
practicable.
(g) Upon the occurrence or existence of any pending corporate
development or any other Material Event that, in the sole judgment of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration and the related Prospectus, the Company shall give notice
(without notice of the nature or details of such events) to the Notice
Holders that the availability of the Shelf Registration is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each Notice
Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or
until it is advised in writing by the Company that the Prospectus may be
used, and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such
Prospectus. The period during which the availability of the Shelf
Registration and any Prospectus is suspended (the "Deferral Period") shall,
without the Company incurring any obligation to pay liquidated damages
pursuant to Section 2(c), not exceed forty-five (45) days in any three (3)
month period or ninety (90) days in any twelve (12) month period.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(b) hereof (including
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the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as may be required to be
disclosed in the Shelf Registration under applicable law or pursuant to SEC
comments. Each Holder further agrees not to sell any Registrable Securities
pursuant to the Shelf Registration without delivering, or causing to be
delivered, a Prospectus to the purchaser thereof and, following termination of
the Effectiveness Period, to notify the Company, within 10 business days of
request, of the amount of Registrable Securities sold pursuant to the Shelf
Registration and, in the absence of a response, the Company may assume that all
of the Holder's Registrable Securities were so sold.
5. Underwritten Offerings.
(a) The Underwriting Majority may sell its Registrable Securities in
an Underwritten Offering pursuant to the Shelf Registration only with the
Company's consent, which consent may be granted or withheld in the
Company's sole discretion.
(b) Participation of Holders. No holder may participate in any
Underwritten Offering hereunder unless such Holder:
(i) agrees to sell such Holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such
underwriting arrangements.
(c) Selection of Underwriters. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by a majority of Holders whose
Registrable Securities are included in such Underwritten Offering;
provided, that such investment bankers and managers must be reasonable
satisfactory to the Company.
6. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchaser and each of the Holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each Prospectus (including any preliminary or summary Prospectus) contained
therein or furnished pursuant to Section 3(c) hereof and any further
amendments or supplements to any such registration statement or Prospectus,
when it becomes effective or is filed with the Commission, as the case may
be, and, in the case of an underwritten offering of Registrable Securities,
at the time of the closing under the underwriting agreement relating
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thereto, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and at all times subsequent to the Effective Time when a
Prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to Holders of
Registrable Securities pursuant to Section 3(b)(vi)(D) hereof until (ii)
such time as the Company furnishes an amended or supplemented Prospectus
pursuant to Section 3(c) hereof or such time as the Company provides notice
that offers and sales pursuant to the Shelf Registration may continue, each
such registration statement, and each Prospectus (including any summary
Prospectus) contained therein or furnished pursuant to Section 3(b) hereof,
as then amended or supplemented, will conform in all material respects to
the applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of a Holder
of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any Prospectus referred
to in Section 6(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of a Holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, except to the extent that any
such contravention would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, any indenture or instrument
relating to indebtedness for money borrowed or any agreement to which the
Company is a party or any order, rule, regulation or decree of any court or
governmental agency or authority located in the United States having
jurisdiction over the Company or any property of the Company; and, to the
best knowledge of the Company, no consent, authorization or order of, or
filing or registration with, any court or governmental agency or authority
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the
Securities Act contemplated hereby, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
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7. Indemnification.
(a) Indemnification by the Company. In connection with the Shelf
Registration, the Company shall, and it hereby agrees to, indemnify and
hold harmless each of the Holders of Registrable Securities included in
such Shelf Registration, and each person who is named in such Shelf
Registration or a supplement thereto as an underwriter in any offering or
sale of such Registrable Securities and each person who controls any such
person (each, a "Participant") against any losses, claims, damages or
liabilities, joint or several, to which such Participant may become subject
under the Securities Act or otherwise, and to reimburse such Participant
for any legal or other expenses incurred by them in connection with
investigating or defending any actions, insofar as such losses, claims,
damages, liabilities or actions in arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in any registration statement under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
Prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made not
misleading; provided, however, that the Company shall not be liable to any
such Participant in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in such registration statement, or preliminary, final or summary
Prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Participant expressly for use therein. This indemnity with
respect to the Prospectus shall not inure to the benefit of any Participant
on account of any losses, claims, damages, liabilities or actions arising
from the sale of Registrable Securities to any person if a copy of the
Prospectus, as the same may then be amended or supplemented, shall not have
been sent or given by or on behalf of such Participant to such person with
or prior to the written confirmation of the sale involved and if the
Prospectus (as so amended or supplemented) would have corrected the defect
giving rise to such loss, liability, claim or damage.
(b) Indemnification by Participants. Each Participant, severally and
not jointly, agrees to indemnify and hold harmless the Company, each of the
Company's directors, officers and employees and each person who controls
the Company within the meaning of either the Securities Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company, but
only with reference to written information furnished to the Company by or
on behalf of such Participant specifically for use in any registration
statement, or any preliminary or final or summary Prospectus contained
therein or any amendment or supplement thereto; provided, that, in the case
of a Shelf Registration, no Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the
sale of Registrable Securities pursuant to such Shelf Registration. This
indemnity agreement will be acknowledged by each Participant that is not an
Initial Purchaser in such Participant's Notice and will be in addition to
any liability which any such person may otherwise have.
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(c) Promptly after receipt by an indemnified party under Section 7(a)
or (b) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under Section 7(a) or (b).
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential conflicting interests between them, the
indemnified party or parties shall have the right to select separate
counsel to participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
Section 7(a) or (b) for any legal or other expenses subsequently incurred
by such indemnified party (other than reasonable costs of investigation) in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel, approved
by the indemnifying party, representing the indemnified parties who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
The Company shall not be liable for any settlement, compromise or consent
to the entry of any order adjudicating or otherwise disposing of any loss,
claim, damage or liability effected without its consent.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
8. Rule 144.
The Company covenants to the Holders of Registrable Securities that the
Company shall use commercially reasonable efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
16
Securities Act) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities in connection with that Holder's
sale pursuant to Rule 144, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, Attention: Treasurer; if to the Initial Purchaser, to it at
the address for the Initial Purchaser set forth in the Purchase Agreement;
and if to a Holder, to the address of such Holder set forth in the security
register, a Notice and Questionnaire or other records of the Company or to
such other address as the Company or any such Holder may have furnished to
the other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
(b) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto.
In the event that any transferee of any Holder of Registrable Securities
shall acquire Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a party hereto
for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by and
to perform, all of the applicable terms and provisions of this Agreement.
(c) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any Holder of Registrable Securities, any director, officer or partner
of such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such Holder.
(d) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
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(e) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) No Inconsistent Agreements. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any
agreement that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to
the holders of the Company's other issued and outstanding securities under
any such agreements.
(g) Entire Agreement; Amendments. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent
of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure. Notwithstanding the
foregoing sentence, (i) this Agreement may be amended, without the consent
of any Holder of Registrable Securities, by written agreement signed by the
Company and Xxxxxxx Xxxxx Xxxxxx, to cure any ambiguity, correct or
supplement any provision of this Agreement that may be inconsistent with
any other provision of this Agreement or to make any other provisions with
respect to matters or questions arising under this Agreement that shall not
be inconsistent with other provisions of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by written
agreement signed by the Company and Xxxxxxx Xxxxx Barney to the extent that
any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the staff of the SEC) or
any change therein and (iii) to the extent any provision of this Agreement
relates to the Initial Purchaser, such provision may be amended, modified
or supplemented, and waivers or consents to departures from such provisions
may be given, by written agreement signed by Xxxxxxx Xxxxx Xxxxxx Inc. and
the Company.
(h) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
(i) Third Party Beneficiary. Each of the Holders shall be a third
party beneficiary of the agreements made hereunder between the Company on
the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(j) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
18
Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
MIRANT CORPORATION
By:
-------------------------------------
Name:
Title:
Xxxxxxx Xxxxx Barney Inc.
By: _________________________
Name:
Title:
20
