EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), is entered into as
of ______________, 2001, between UtiliCorp United Inc., a Delaware corporation
("UTILICORP"), and Aquila, Inc., a Delaware corporation ("AQUILA").
WHEREAS, UtiliCorp and Aquila have entered into the Master Separation
Agreement, pursuant to which UtiliCorp and Aquila have agreed to take certain
actions to effect the Separation; and
WHEREAS, in furtherance of the transactions contemplated by the Master
Separation Agreement, UtiliCorp and Aquila have agreed to enter into this
Agreement to provide UtiliCorp with registration rights with respect to the
Shares;
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Master Separation Agreement. In this Agreement, the
following capitalized terms shall have the following meanings:
"COVERED PERSONS" means, in any registration of Shares hereunder, each of the
Selling Holders, each of their respective directors and officers, each Person
who participates as a underwriter in the offering or sale of such Shares, each
officer and director of each underwriter, and each Person, if any, who controls
each such Selling Holder or any such underwriter within the meaning of the
Securities Act.
"DEMAND REGISTRATION" means a registration of Shares under Article II of this
Agreement.
"EFFECTIVE DATE" means the date that UtiliCorp provides to Aquila written notice
that it no longer intends to proceed with or complete the Distribution.
"HOLDERS" means, collectively, UtiliCorp and any Permitted Transferee.
"MASTER SEPARATION AGREEMENT" means that certain Master Separation Agreement,
dated _____________, 2001, between UtiliCorp and Aquila.
"PERMITTED TRANSFEREES" means any transferee, whether direct or indirect, of
Shares so designated by UtiliCorp (or a subsequent Holder) in a written notice
to Aquila as provided for in Section 8.7, provided that such transferee either
(a) at the time of such transfer, is an affiliate of UtiliCorp within the
meaning of Rule 501 under the Securities Act or any successor provision, or (b)
after giving effect to such transfer, will be the holder of at least 10% of the
Shares.
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"PIGGYBACK REGISTRATION" means a registration of Shares under Article III of
this Agreement.
"REGISTRATION EXPENSES" means all expenses incident to Aquila's performance of
or compliance with the registration requirements set forth in this Agreement,
including the following: (a) all registration and filing fees; (b) the fees,
disbursements and expenses of Aquila's counsel and accountants in connection
with the registration of the Shares to be disposed of under the Securities Act;
(c) all expenses in connection with the preparation, printing, and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto, and the mailing
and delivering of copies thereof to the underwriters and dealers and, if
applicable, directly to security holders; (d) the cost of printing and producing
any agreements among underwriters, underwriting agreements, and blue sky or
legal investment memoranda, any selling agreements and any amendments thereto or
other documents in connection with the offering, sale, or delivery of the Shares
to be disposed of; (e) all expenses in connection with the qualification of the
Shares to be disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (f) the filing fees incident to securing any required review
by the NYSE and any other securities exchange on which the Common Stock is then
traded or listed of the terms of the sale of the Shares to be disposed of and
the trading or listing of all such Shares on each such exchange; (g) the costs
of preparing stock certificates; (h) the costs and charges of Aquila's transfer
agent and registrar; and (i) the fees and disbursements of any custodians,
solicitation agents, information agents, and/or exchange agents. Registration
Expenses shall not include underwriting fees, discounts, and selling commissions
allocable to the Shares being registered for sale on behalf of the Selling
Holders, which shall be paid by the Selling Holders.
"REQUEST NOTICE" means the written notice of any Holder requesting that Aquila
effect the registration under the Securities Act, of any or all of the Shares
held by such Holder, which notice shall specify the intended method or methods
of disposition of such Shares (which methods may include, without limitation, a
Shelf Registration).
"SELLING HOLDERS" means, collectively, the Holders of the Shares proposed to be
included in any registration under this Agreement.
"SHARES" means those shares of Common Stock that UtiliCorp holds immediately
following the IPO and continues to hold as of the Effective Date, and shall
include any securities issued or issuable with respect to such shares by way of
a stock dividend or a stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization, or upon the
exercise, conversion or exchange of any other securities (including warrants,
rights, and options) so held.
"SHELF REGISTRATION" means a registration of Shares under a registration
statement pursuant to Rule 415 of the Securities Act (or any successor rule).
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ARTICLE II
DEMAND REGISTRATION
Section 2.1. NOTICE. Upon delivery of a Request Notice, Aquila will
promptly give written notice of the proposed registration to all other Holders
and will use its best efforts to effect (at the earliest practicable date) the
registration under the Securities Act of such Shares (and the Shares of any
other Holders joining in such request as are specified in a written notice
received by Aquila within 15 days after receipt of Aquila's written notice of
the proposed registration) for disposition in accordance with the intended
method or methods of disposition stated in such Request Notice; provided,
however, that:
(a) Aquila shall not be obligated to effect registration with respect
to Shares within 90 days after the effective date of a previous registration,
other than a Shelf Registration, effected with respect to Shares pursuant to
this Article II;
(b) if Aquila has received a Request Notice, and Aquila furnishes to
the requesting Holders a copy of a resolution of Aquila's Board of Directors
certified by the Secretary of Aquila stating that in the good faith judgment of
Aquila's Board of Directors it would not be in the best interest of Aquila's
stockholders for a registration statement in respect of the requested Demand
Registration (i) to be filed on or before the date such filing would otherwise
be required hereunder or (ii) to become effective because, in either case, (A)
such action would materially interfere with an existing proposal or plan by
Aquila to engage in a material acquisition, merger, consolidation, tender offer,
other business combination, reorganization, securities offering, or other
material transaction, (B) such action would require premature disclosure of
material information that Aquila has a bona fide business purposes for
preserving as confidential, or (C) Aquila is unable to comply with the
requirements of the Commission, then Aquila shall have the right, but not more
than once in any 12-month period with respect to any Request Notice, to delay or
postpone the filing or effectiveness of such registration statement for up to 90
days; and
(c) any Demand Registration requested hereunder shall request the
registration of Shares representing at least 5% of the then-outstanding shares
of the Common Stock, based on the number of such shares outstanding as reported
by Aquila in its most recent annual or quarterly report filed with the
Commission under the Exchange Act.
Section 2.2. MAXIMUM NUMBER OF DEMAND REGISTRATIONS. Aquila shall be
obligated to effect only five Demand Registrations pursuant to this Article II.
Section 2.3. REGISTRATION EXPENSES. Aquila shall pay all Registration
Expenses for any Demand Registration (including any Demand Registration that is
delayed or withdrawn).
Section 2.4. SELECTION OF PROFESSIONALS. The Holders of a majority of the
Shares included in any Demand Registration shall have the right to select the
investment banker(s) and manager(s) to administer the offering; provided,
however, that if such Holders select an investment banker or manager that was
not one of the lead managers of the IPO, such investment banker(s) or manager(s)
shall not administer such offering if Aquila reasonably objects thereto. The
Holders of a majority of the Shares included in any Demand Registration shall
have the right to select the financial printer, the solicitation and/or exchange
agent (if any), and one counsel for the Selling Holders. Aquila shall select its
own
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outside counsel and independent auditors. Aquila also shall be entitled to
designate any broker or other agent through whom the Holders shall sell into the
public market any Shares pursuant to a Shelf Registration that is not an
underwritten offering.
Section 2.5. THIRD PERSON SHARES. Aquila shall have the right to cause the
registration of securities for sale for the account of any Person (including
Aquila) other than the Selling Holders in any Demand Registration under this
Article II, so long as such securities are disposed of in accordance with the
intended method or methods of disposition requested pursuant to this Article II,
and so long as the number of Shares held by the Selling Holders and included in
the Demand Registration is not reduced thereby.
Section 2.6. PERMITTED TRANSFEREES. Any Permitted Transferees of the Shares
shall be subject to and bound by all of the terms and conditions herein
applicable to Holders. Any notice designating Permitted Transferees shall be
signed by both the transferring Holder and the Permitted Transferees so
designated and shall include an undertaking by the Permitted Transferees to
comply with the terms and conditions of this Agreement applicable to Holders. In
the event of a transfer of any of the Shares to a transferee that is not a
Permitted Transferee, the Shares so transferred shall no longer be subject to
this Agreement.
Section 2.7. SHELF REGISTRATION. With respect to any Demand Registration,
the requesting Holders may request Aquila to effect a registration of the Shares
as a Shelf Registration.
Section 2.8. FILING FORM. Aquila shall use its best efforts to cause Demand
Registrations to be registered on Form S-3 (or any successor form), and if
Aquila is not then eligible under the Securities Act to use Form S-3, Demand
Registrations shall be registered on Form S-1 (or any successor form). Aquila
shall use its best efforts to become eligible to use Form S-3 and, after
becoming eligible to use Form S-3, shall use its best efforts to remain so
eligible.
Section 2.9. OTHER REGISTRATION RIGHTS. Aquila shall not grant to any
Person the right to request or require Aquila to register any equity securities
of Aquila, or any securities convertible or exchangeable into or exercisable for
such securities, without UtiliCorp's prior written consent.
ARTICLE III
PIGGYBACK REGISTRATION
Section 3.1. NOTICE AND REGISTRATION. If Aquila proposes to register any of
its securities for public sale under the Securities Act (whether proposed to be
offered for sale by Aquila or any other Person), on a form and in a manner which
would permit registration of the Shares for sale to the public under the
Securities Act, it will give prompt written notice to the Holders of its
intention to do so, and upon the written request of any or all of the Holders
delivered to Aquila within 15 days after the giving of any such notice (which
request shall specify the Shares intended to be disposed of by such Holders),
Aquila will use its best efforts to effect, in connection with the registration
of such other securities, the registration under the Securities Act of all of
the Shares which Aquila has been so requested to register by such Holders (which
shall then become Selling Holders), to the extent required to permit
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the disposition (in accordance with the same method of disposition as Aquila
proposes to use to dispose of the other securities) of the Shares to be so
registered; provided, however, that:
(a) if, at any time after giving such written notice of its intention
to register any of its other securities and prior to the effective date of the
registration statement filed in connection with such registration, Aquila shall
determine for any reason not to register such other securities, Aquila may, at
its election, give written notice of such determination to the Selling Holders
(or, if prior to delivery of the Holders' written request described above in
this Section 3.1, the Holders) and thereupon Aquila shall be relieved of its
obligation to register such Shares in connection with the registration of such
other securities (but not from its obligation to pay Registration Expenses to
the extent incurred in connection therewith as provided in Section 3.3), without
prejudice, however, to the rights (if any) of any Selling Holders immediately to
request (subject to the terms and conditions of Article II) that such
registration be effected as a Demand Registration under Article II;
(b) Aquila shall not be required to effect any registration of the
Shares under this Article III incidental to the registration of any of its
securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans, or stock option or other
employee benefit plans of Aquila; and
(c) if a Piggyback Registration is an underwritten registration and
the managing underwriters advise Aquila in writing that (in their good faith
opinion) the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without materially
adversely affecting the marketability of the offering or the market for the
Common Stock, Aquila may exclude securities (including up to 50% of the Shares
requested to be included in such registration by the Selling Holders) from the
registration, and the number of securities that may be included in the
registration shall be allocated, first to Aquila, and second, to each of the
Selling Holders on a pro rata basis based on the total number of Shares then
held by each Selling Holder; provided, however, that Aquila's right to exclude
Shares of the Selling Holders from the registration as described above shall be
restricted so that (i) the number of Shares included in any such registration is
not reduced below 50% of the aggregate number of Shares for which inclusion has
been requested; and (ii) all securities that are not Shares and are held by any
other Person, including, without limitation, any employee, officer or director
of Aquila (or any Subsidiary of Aquila), shall first be excluded from such
registration before any Shares of the Selling Holders are so excluded. No
Piggyback Registration under this Article III shall relieve Aquila of its
obligation to effect a Demand Registration under Article II.
Section 3.2. SELECTION OF PROFESSIONALS. If any Piggyback Registration is
an underwritten offering and any of the investment banker(s) or manager(s)
selected to administer the offering was not one of the lead managers of the IPO,
such investment banker(s) or manager(s) shall not administer such offering if
the Holders of a majority of the Shares included in such Piggyback Registration
reasonably object thereto. The Holders of a majority of the Shares included in
any Piggyback Registration shall have the right to select one counsel for the
Selling Holders. Aquila shall select its own outside counsel and independent
auditors.
Section 3.3. REGISTRATION EXPENSES. Aquila shall pay all Registration
Expenses for any Piggyback Registration (including any Piggyback Registration
that is delayed or withdrawn).
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ARTICLE IV
REGISTRATION PROCEDURES
Section 4.1. REGISTRATION AND QUALIFICATION. If and whenever Aquila is
required to use its best efforts to effect the registration of any of the Shares
under the Securities Act as provided in Articles II and III, including an
offering pursuant to a Shelf Registration, Aquila will as promptly as is
practicable:
(a) prepare and file with the Commission a registration statement
with respect to such Shares and use its best efforts to cause such registration
statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplement thereto, Aquila shall
furnish to the counsel selected by the Holders of a majority of the Shares
covered by such registration statement copies of all such documents proposed to
be filed, which documents shall be subject to the review and comment of such
counsel);
(b) except in the case of a Shelf Registration, prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all of the Shares subject
thereto until the earlier of (i) such time as all of such Shares have been
disposed of in accordance with the intended methods of disposition set forth in
such registration statement or (ii) the expiration of nine months after such
registration statement becomes effective;
(c) in the case of a Shelf Registration, prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all of the Shares subject
thereto for a period ending on the earlier of (i) 18 months after the effective
date of such registration statement and (ii) the date on which all the Shares
subject thereto have been sold pursuant to such registration statement;
(d) furnish to the Selling Holders and to any underwriter of such
Shares such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus),
such documents incorporated by reference in such registration statement or
prospectus, and such other documents as the Selling Holders or such underwriter
may reasonably request;
(e) use its best efforts to register or qualify all of the Shares
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as the Selling Holders or any underwriter of such
Shares shall reasonably request, and do any and all other acts and things which
may be necessary or advisable to enable the Selling Holders or any underwriter
to consummate the disposition in such jurisdictions of the Shares covered by
such registration statement, except that Aquila shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction where
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it is not so qualified, or to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
(f) (i) furnish to the Selling Holders, addressed to them, an opinion
of counsel for Aquila and (ii) use its best efforts to furnish to the Selling
Holders, addressed to them, a "cold comfort" letter signed by the independent
public accountants who have certified Aquila's financial statements included in
such registration statement, covering substantially the same matters with
respect to such registration statement (and the prospectus included therein)
and, in the case of such accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other matters as the
Selling Holders may reasonably request, in each case, in form and substance and
as of the dates reasonably satisfactory to the Selling Holders;
(g) immediately notify the Selling Holders, at any time when a
prospectus relating to a registration pursuant to Article II or III is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and at the request of the Selling Holders prepare and furnish to the
Selling Holders a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(h) permit any Selling Holder which Selling Holder, in its sole and
exclusive judgment, might be deemed to be an underwriter or a controlling person
of Aquila, to participate in the preparation of such registration statement and
to require the insertion therein of material, furnished to Aquila in writing,
which in the reasonable judgment of such Holder and its counsel should be
included;
(i) to make available members of management of Aquila, as selected by
the Holders of a majority of the Shares included in such registration, for
assistance in the selling effort relating to the Shares covered by such
registration, including, but not limited to, the participation of such members
of Aquila's management in road show presentations;
(j) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, use it best efforts promptly to obtain the withdrawal of such
order; and
(k) use its best efforts to cause Shares covered by such registration
statement to be registered with or approved by such other government agencies or
authorities as may be necessary to enable the Selling Holders thereof to
consummate the disposition of such Shares.
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Aquila may require the Selling Holders to furnish Aquila with such
information regarding the Selling Holders and the distribution of such Shares as
Aquila may from time to time reasonably request in writing and as shall be
required by law, the Commission, or any securities exchange on which any shares
of Common Stock are then listed for trading in connection with any registration.
Section 4.2. UNDERWRITING. If requested by the underwriters for any
underwritten offering in connection with a registration requested hereunder
(including any registration under Article III which involves, in whole or in
part, an underwritten offering), Aquila will enter into an underwriting
agreement with such underwriters for such offering, such agreement to contain
such representations and warranties by Aquila and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities to the
effect and to the extent provided in Article VI and the provision of opinions of
counsel and accountants' letters to the effect and to the extent provided in
Section 4.1(f). Aquila may require that the Shares requested to be registered
pursuant to Article III be included in such underwriting on the same terms and
conditions as shall be applicable to the other securities being sold through
underwriters under such registration; provided, however, that no Selling Holder
shall be required to make any representations or warranties to Aquila or the
underwriters (other than representations and warranties regarding such Holder
and such Holder's intended method of distribution) or to undertake any
indemnification obligations to Aquila or the underwriters with respect thereto,
except as otherwise provided in Article VI hereof. The Selling Holders shall be
parties to any such underwriting agreement, and the representations and
warranties by, and the other agreements on the part of, Aquila to and for the
benefit of such underwriters shall also be made to and for the benefit of such
Selling Holders.
Section 4.3. BLACKOUT PERIODS FOR SHELF REGISTRATIONS.
(a) At any time when a Shelf Registration effected pursuant to
Article II relating to the Shares is effective, upon receipt from Aquila of a
copy of a resolution of Aquila's Board of Directors certified by Aquila's
Secretary stating that in the good faith judgment of the Board of Directors of
Aquila the Selling Shareholders' sale of the Shares pursuant to the Shelf
Registration would not be in the best interest of Aquila's stockholders because
(i) such action would materially interfere with an existing proposal or plan by
Aquila to engage in a material acquisition, merger, consolidation, tender offer,
other business combination, reorganization, securities offering, or other
material transaction, or (ii) such action would require premature disclosure of
material information that Aquila has a bona fide business purposes for
preserving as confidential, which would have a material adverse effect on
Aquila, the Selling Holders shall suspend sales of the Shares pursuant to such
Shelf Registration until the earlier of (x) the date upon which such material
information is disclosed to the public or ceases to be material (as determined
by the Aquila Board of Directors in good faith), (y) 90 days after the Board of
Directors of Aquila makes such good faith determination or (z) such time as
Aquila notifies the Selling Holders that sales pursuant to such Shelf
Registration may be resumed; provided that Aquila may not impose such a
suspension more than once in any 12-month period.
(b) If there is such a suspension and the Selling Holders do not
notify Aquila in writing of their desire to cancel such Shelf Registration, the
period set forth in Section 4.1(c)(i) shall be extended for a number of days
equal to the number of days in the suspension period.
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Section 4.4. LISTING. In connection with the registration of any offering
of the Shares pursuant to this Agreement, Aquila agrees to use its best efforts
to effect the listing of such Shares on any securities exchange on which any
shares of the Common Stock are then listed or otherwise facilitate the public
trading of such Shares.
Section 4.5. HOLDBACK AGREEMENTS.
(a) Aquila shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any registration statement in
connection with a Demand Registration (other than a Shelf Registration) or a
Piggyback Registration, except pursuant to registrations on Form S-8 or any
successor form or unless the underwriters managing any such public offering
otherwise agree.
(b) If the Holders of Shares notify Aquila in writing that they
intend to effect an underwritten sale of Shares registered pursuant to a Shelf
Registration pursuant to Article II hereof, Aquila shall not effect any public
sale or distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for its equity securities, during the seven
days prior to and during the 90-day period beginning on the date such notice is
received, except pursuant to registrations an Form S-8 or any successor form or
unless the underwriters managing any such public offering otherwise agree.
(c) If Aquila completes an underwritten registration with respect to
any of its securities (whether offered for sale by Aquila or any other Person)
on a form and in a manner that would have permitted registration of the Shares
and no Holder requested the inclusion of any Shares in such registration, the
Holders shall not effect any public sales or distributions of equity securities
of Aquila, or any securities convertible into or exchangeable or exercisable for
such securities, until the termination of the holdback period required from
Aquila by any underwriters in connection with such previous registration, but in
no event more than 90 days from the effective date of such registration.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
In connection with the preparation and filing of each registration
statement registering the Shares under the Securities Act and each sale of the
Shares thereunder, Aquila will give the Selling Holders and the underwriters, if
any, and their respective counsel and accountants, access to its financial and
other records, pertinent corporate documents, and properties and such
opportunities to discuss the business of Aquila with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of the Selling Holders and such underwriters
or their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
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ARTICLE VI
INDEMNIFICATION
Section 6.1. BY AQUILA. In the event of any registration of Shares
hereunder, Aquila will enter into customary indemnification arrangements to
indemnify and hold harmless each of the Covered Persons against any losses,
claims, damages, liabilities and expenses, joint or several, to which such
Person may be subject under the Securities Act or otherwise insofar as such
losses, claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) arise out of are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in any related registration
statement filed under the Securities Act, any preliminary prospectus or final
prospectus included therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (b) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and Aquila will
reimburse each such Covered Person, as incurred, for any legal or any other
expenses reasonably incurred by such Covered Person in connection with
investigating or defending any such loss, claim, damage liability, action or
proceeding; provided, however, that Aquila shall not be liable in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus or final
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to Aquila by such Selling Holder or such
underwriter specifically for use in the preparation thereof. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any such Covered Person and shall survive the transfer of such
securities by the Selling Holders.
Section 6.2. BY THE SELLING HOLDERS. Each of the Selling Holders, by virtue
of exercising its respective registration rights hereunder, agrees and
undertakes to enter into customary indemnification arrangements to indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
6.1) Aquila, its directors and officers, each Person who participates as an
underwriter in the offering or sale of such Shares, each officer and director of
each underwriter, and each Person, if any, who controls Aquila or any such
underwriter within the meaning of the Securities Act, with respect to any
statement in or omission from such registration statement, any preliminary
prospectus or final prospectus included therein, or any amendment or supplement
thereto, if such statement or omission is contained in written information
furnished by such Selling Holder to Aquila specifically for inclusion in such
registration statement or prospectus; provided, however, that the obligation to
indemnify shall be individual, not joint and several, for each Selling Holder
and shall be limited to the net amount of proceeds received by such Selling
Holder from the sale of Shares pursuant to such registration statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of Aquila or any such director, officer or Person and shall
survive the transfer of the registered securities by the Selling Holders.
Section 6.3. CLAIMS PROCEDURES. Any Person entitled to indemnification
hereunder shall (a) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided, however, that
the failure to give prompt notice shall not impair any Person's rights to
indemnification hereunder to the extent such failure has not prejudiced the
indemnifying party) and (b) unless in such indemnified party's
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reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
Section 6.4. SCOPE. Indemnification similar to that specified in the
preceding sections of this Article VI (with appropriate modifications) shall be
given by Aquila and the Selling Holders with respect to any required
registration or other qualification of such Shares under any federal or state
law or regulation of any Governmental Authority other than the Securities Act.
ARTICLE VII
EFFECTIVE DATE; BENEFITS AND TERMINATION OF REGISTRATION RIGHTS
Section 7.1. EFFECTIVE DATE. This Agreement shall become effective upon the
Effective Date.
Section 7.2. BENEFITS; TERMINATION OF REGISTRATION RIGHTS. The Holders may
exercise the registration rights granted hereunder in such manner and
proportions as they shall agree among themselves. The registration rights
hereunder shall cease to apply to any particular Shares and such securities
shall cease to be Shares when: (a) a registration statement with respect to the
sale of such Shares shall have become effective under the Securities Act and
such Shares shall have been disposed of in accordance with such registration
statement; (b) such Shares shall have been sold to the public pursuant to Rule
144 under the Securities Act (or any successor provision); (c) such Shares shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by Aquila and subsequent
public distribution of them shall not require registration or qualification of
them under the Securities Act or any similar state law then in force; (d) such
Shares shall have ceased to be outstanding and (e) in the case of Shares held by
a Permitted Transferee, when such Shares become eligible for sale pursuant to
Rule 144(k) under the Securities Act (or any successor provision).
ARTICLE VIII
MISCELLANEOUS
Section 8.1. NO INCONSISTENT AGREEMENTS. Aquila shall not on or after the
date of this Agreement enter into any agreement with respect to its securities
that violates or subordinates the rights expressly granted to the Holders in
this Agreement. Aquila shall not take any action, or permit any change to occur,
with respect to its securities which would adversely affect the ability of the
Holders of Shares to include such Shares in a registration undertaken pursuant
to this Agreement.
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Section 8.2. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof.
Section 8.3. AUTHORITY. Each party hereto represents to the other that (a)
it has the corporate or other requisite power and authority to execute, deliver,
and perform this Agreement, (b) the execution, delivery, and performance of this
Agreement by it have been duly authorized by all necessary corporate or other
actions, (c) it has duly and validly executed and delivered this Agreement, and
(d) this Agreement is a legal, valid, and binding obligation, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equity principles.
Section 8.4. BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective legal
representatives, successors, and assigns, and any Permitted Transferees.
Section 8.5. GOVERNING LAW. This Agreement shall be governed and construed
and enforced in accordance with the laws of the State of Missouri as to all
matters, regardless of the laws that might otherwise govern under the principles
of conflicts of laws applicable thereto.
Section 8.6. SEVERABILITY. If any term or other provision of this Agreement
is determined by a nonappealable decision by a court, administrative agency or
arbitrator to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, this
Agreement shall be deemed to be amended, and each party agrees to execute and
deliver such documents and instruments as are reasonably requested by the other
party to evidence such amendment, so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 8.7. NOTICES. Any notice, demand, offer, request or other
communication required or permitted to be given pursuant to this Agreement shall
be in writing and shall be deemed effectively given the earlier of (a) when
received, (b) when delivered personally, (c) one Business Day after being
delivered by facsimile (with receipt of appropriate confirmation), (d) one
Business Day after being deposited with a nationally recognized overnight
courier service, or (e) four Business Days after being deposited in the U.S.
mail, First Class with postage prepaid, and addressed (x) in the case of either
UtiliCorp and Aquila, to the attention of such party's General Counsel at the
address of its principal executive office or such other address as such party
may request by notifying the other party in writing and (y) in the case of a
Holder other than UtiliCorp, at the most current address given by such Holder to
Aquila or, if no such address has been given, to an address reasonably
determined by Aquila.
Section 8.8. REMEDIES. Each of UtiliCorp and Aquila shall be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including
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reasonable attorneys' fees) caused by any breach of any provision of this
Agreement, and to exercise all other rights existing in its favor. Each of
UtiliCorp and Aquila acknowledges and agrees that the breach by a party hereto
or any of its affiliates of a term or provision of this Agreement will
materially and irreparably harm the other party, that money damages will
accordingly not be an adequate remedy for such breach, and that the
non-defaulting party, in its sole discretion and in addition to its rights under
this Agreement and any other remedies it may have at law or in equity, shall be
entitled, without proof of actual damages and without posting any bond or
deposit, to specific performance and/or other injunctive relief.
Section 8.9. WAIVERS. No failure or delay on the part of either party
hereto in the exercise of any right hereunder shall impair such right or
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty, or agreement herein, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or of
any other right.
Section 8.10. AMENDMENT. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of Aquila and a
majority of the Holders.
Section 8.11. INTERPRETATION. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement to
an Article or Section, such reference shall be to an Article or Section of this
Agreement unless otherwise indicated.
Section 8.12. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same agreement. This Agreement may be executed by facsimile signature.
REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have signed this Registration Rights
Agreement effective as of the date first set forth above.
UTILICORP UNITED INC.
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Xxxxxx X. Xxxxx
President and Chief Operating Officer
AQUILA, INC.
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Xxxxx X. Xxxxx
Chief Executive Officer
SIGNATURE PAGE TO THE
REGISTRATION RIGHTS AGREEMENT
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