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EXHIBIT 2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of March 25, 1996, among Itron, Inc., a
Washington corporation (the "Company"), and the Holders (as defined below).
RECITALS
A. On February 28, 1992, the Company and certain of the Holders
entered into a Registration Rights Agreement consolidating into one agreement
various registration rights held by such Holders and extending certain
registration rights to NorAm Energy Corp. (formerly Arkla, Inc.) ("NorAm").
B. The Company is now entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "UTS Merger Agreement"), with UTS
Acquisition Corporation and Utility Translation Systems, Inc. ("UTS"), pursuant
to which the Company will issue to Stuart Xxxxxx Xxxxx, Xxxxx Xxxxxxxx Xxxxxx
and Xxxx X. Xxxxx, Xx. an aggregate of 971,427 shares of Common Stock, of which
up to 194,286 shares will have certain registration rights as set forth in this
Agreement.
C. The parties to this Agreement desire to consolidate into one
document their previous agreements, to delete references to persons whose
registration rights have been eliminated through sales of the Company's Common
Stock and to extend certain registration rights to the recipients of Common
Stock pursuant to the UTS Merger Agreement as set forth herein.
D. The parties to this Agreement hereby agree that this
Agreement will become effective on and be dated as of the date of the closing
of the transactions contemplated by the UTS Merger Agreement and will be of no
force and effect should such transactions not be consummated.
AGREEMENT
Now, therefore, for good and valuable consideration, the adequacy and
receipt of which is acknowledged, the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
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(a) "Commission" shall mean the United States Securities and
Exchange Commission or any other United States federal agency at the time
administering the Securities Act.
(b) "Form S-3" shall mean Form S-3 issued by the Commission
or any substantially similar form then in effect.
(c) "Holder" shall mean any of the parties listed on Schedule
A hereto that hold outstanding Registrable Securities which have not been sold
to the public, or an assignee or transferee of registration rights from such
parties as permitted by Section 9.
(d) "Initiating Holders" shall have the meaning set forth in
subsection 2.1.1 except that when used in subsections 2.2, 2.4 and 2.5 with
respect to a Registration requested by Centra pursuant to subsection 2.1.2, it
shall mean Centra, when used in subsections 2.2, 2.4 and 2.5 with respect to a
Registration requested by NorAm pursuant to subsection 2.1.3, it shall mean
NorAm, and when used in subsections 2.4 and 2.5 with respect to a Registration
requested by the UTS Holders pursuant to subsection 2.1.4, it shall mean the
UTS Holders.
(e) "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (the "Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
(f) "Registrable Securities" shall mean (i) all the Common
Stock of the Company issued upon conversion of any shares of the Company's
Series A Preferred Stock and Series B Preferred Stock; (ii) all the Common
Stock of the Company issued or issuable upon the exercise of that certain
warrant, dated June 15, 1988, issued pursuant to the Securities Purchase
Agreement dated June 15, 1988 with Inter-City Gas Corporation ("ICG"), as at
any time amended, by the Company to CHL Holdings, Inc., a subsidiary of ICG,
and reissued on June 29, 1990 to ICG Utilities (Canada) Ltd. and on January 21,
1991 to Centra Gas Inc., successors in interest to ICG ("Centra"), as at any
time amended; (iii) all the Common Stock of the Company issued or issuable upon
the exercise of warrants to purchase shares of the Company's Common Stock
acquired from AMRplus Partners, a Research and Development Limited Partnership
(the "AMR Warrants"); (iv) all the Common Stock of the Company issued to NorAm
pursuant to the terms of the NorAm Merger Agreement; (v) the UTS Registrable
Securities; and (vi) all the Common Stock of the Company issued with respect to
such shares by reason of stock dividends, stock splits, or combinations,
recapitalizations or other similar corporate action.
(g) "Registration Expenses" shall mean all expenses incurred
by the Company in complying with Section 2 or Section 3, including, without
limitation, all federal and state registration, qualification, and filing fees,
printing expenses, fees and disbursements
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of counsel for the Company, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration.
(h) "Securities Act" shall mean the Securities Act of 1933,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(i) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Registrable Securities
pursuant to this Agreement.
(j) "UTS Holder" is defined as any of Stuart Xxxxxx Xxxxx,
Xxxxx Xxxxxxxx Xxxxxx and Xxxx X. Xxxxx, Xx.
(k) "UTS Registrable Securities" shall mean (i) the 194,286
shares of Common Stock received by the UTS Holders pursuant to the UTS Merger
Agreement that are granted registration rights pursuant to this Agreement and
(ii) all the Common Stock of the Company issued with respect to such shares by
reason of stock dividends, stock splits, or combinations, recapitalizations or
other similar corporate action; provided, however, in any Registration, the UTS
Holders as a group shall be entitled only to sell that number of UTS
Registrable Securities equal to the maximum number of shares eligible to be
sold pursuant to the Registration, and, absent an agreement among the UTS
Holders to the contrary, each UTS Holder shall be entitled only to sell that
number of UTS Registrable Securities equal to such maximum number multiplied by
a fraction equal to the UTS Registrable Securities held by such UTS Holder
divided by the number of UTS Registrable Securities held by all UTS Holders at
the time of the filing of such Registration.
SECTION 2. DEMAND REGISTRATION
2.1 REQUEST FOR REGISTRATION ON FORMS OTHER THAN FORM S-3
2.1.1 GENERAL
Subject to the remainder of this Agreement, in the event that the
Company shall receive from Holders of Registrable Securities (the "Initiating
Holders") a written request that the Company effect any Registration with
respect to all or a part of the Registrable Securities on a form other than
Form S-3 for an offering of at least 20% of the then outstanding Registrable
Securities having a reasonably anticipated aggregate offering price to the
public equal to or greater than $3,000,000 (U.S.), the Company shall (i)
promptly give written notice of the proposed Registration to all other Holders
and shall (ii) as soon as practicable, use its diligent best efforts to effect
the prompt Registration of the Registrable Securities specified in such
request, together with any Registrable Securities of any Holder joining in such
request as are specified in a written request given within 20 days after
delivery of written notice from the Company. The Company shall not be obligated
to take any action to effect any such registration pursuant to this subsection
2.1.1 within six months after the
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effective date of a Registration initiated by the Company or, except as
provided in subsection 2.1.2, after the Company has effected two such
Registrations pursuant to this subsection 2.1.1 and such Registrations shall
have been declared effective (the "Demand Registrations").
2.1.2 CENTRA DEMAND REGISTRATION
If (a) the Company has effected the Demand Registrations pursuant to
subsection 2.1.1 and (b) Centra's participation in the Demand Registrations did
not result in a reduction in the number of shares of Registrable Securities
that the other Holders of Registrable Securities desired and were allowed to
register in the Demand Registrations, then Centra may notify the Company in
writing that it requests a Registration pursuant to this subsection 2.1.2;
provided, however, that in such Registration Centra must register Registrable
Securities owned by it having a reasonably anticipated aggregate offering price
to the public equal to or greater than $15,000,000 (U.S.), or, with respect to
a Registration in which Centra is registering all its Registrable Securities,
$5,000,000 (U.S.). Other Holders of Registrable Securities shall have the right
to participate in the Centra Registration hereunder only to the extent that
such participation does not preclude Centra from registering in such
Registration the total number of Registrable Securities Centra requests in such
notification. After receiving Centra's notice, the Company shall (i) promptly
give written notice of the proposed Registration to all other Holders stating
the terms upon which such Holders can participate in such Registration and (ii)
as soon as practicable, use its diligent best efforts to effect the prompt
Registration of the Registrable Securities specified in Centra's request,
together with any Registrable Securities (subject to the limitations of this
subsection 2.1.2) of any Holder joining in such request that are specified in a
written request given within 20 days after delivery of written notice from the
Company. The Company shall not be obligated pursuant to this subsection 2.1.2
to (a) take any action to effect any Registration within six months after the
effective date of a Registration initiated by the Company or (b) effect more
than one Registration.
2.1.3 NORAM DEMAND REGISTRATIONS
Any time during the period commencing six months after the
effective date of the Company's initial Registration and ending three years
after such effective date, NorAm may notify the Company in writing that it
requests a Registration pursuant to this subsection 2.1.3 to Register for sale
all of the Registrable Securities owned by it. Other Holders of Registrable
Securities shall have the right to participate in the NorAm Registration
hereunder only to the extent that such participation does not preclude NorAm
from registering in such Registration the total number of Registrable
Securities it requests in such notification. After receiving NorAm's notice,
the Company shall (i) promptly give written notice of the proposed Registration
to all other Holders stating the terms upon which such Holders can participate
in such Registration and (ii) as soon as practicable, use its diligent best
efforts to effect the prompt Registration of the Registrable Securities
specified in NorAm's request, together with any Registrable Securities (subject
to the limitations of this subsection 2.1.3) of
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any Holder joining in such request that are specified in a written request
given within 20 days after delivery of written notice from the Company. The
Company shall not be obligated pursuant to this subsection 2.1.3 to effect more
than one Registration for NorAm unless NorAm is unable in such Registration to
sell all its Registrable Securities because of the advice of the Underwriter's
Representative (as defined in subsection 2.5.2) requiring a limitation of the
number of shares of Registrable Securities to be sold by NorAm. In such event,
NorAm shall be entitled to two additional Registrations to be effected
according to the terms of this subsection 2.1.3, exercisable at least nine
months apart, and for the Registration of Registrable Securities owned by NorAm
having a reasonably anticipated aggregate offering price to the public equal to
or greater than $5,000,000 (U.S.) or such lesser amount equal to the number of
shares of Registrable Securities as NorAm shall then own which cannot be sold
by NorAm in a transaction pursuant to Rule 144.
2.1.4 UTS DEMAND REGISTRATION
In the event that prior to the expiration of one year from the date of
this Agreement the Company does not effect a Registration triggering the rights
of the UTS Holders set forth in subsection 3.1.2, or in the event that the
Company effects such a Registration or Registrations and the UTS Holders
request participation and the extent of the UTS Holders' participation is
reduced in accordance with the terms of this Agreement to fewer than 97,143
shares of UTS Registrable Securities, the UTS Holders shall be provided with a
demand registration right pursuant to this subsection 2.1.4 with respect to
97,143 shares of the UTS Registrable Securities minus any amount previously
sold by the UTS Holders in connection with any Registration or Registrations
prior to the time the demand right under this subsection 2.1.4 is exercised. In
the event that the Company shall receive, at any time between the date one year
from date of this Agreement and the date two years from date of this Agreement,
a written request from the UTS Holders that the Company effect a Registration
with respect to all or a part of the UTS Registrable Securities referenced in
the preceding sentence and having a reasonably anticipated aggregate offering
price to the public equal to or greater than $1,500,000 (U.S.), then the
Company shall as soon as practicable, use its diligent best efforts to effect
the prompt Registration of the UTS Registrable Securities specified in such
request. The Company will not be obligated pursuant to this subsection 2.1.4 to
(a) take any action to effect any Registration within six months after the
effective date of a Registration initiated by the Company or (b) effect more
than one Registration. If the Company shall furnish to the UTS Holders a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be
detrimental to the Company for any Registration requested under this subsection
2.1.4 to occur at the time the request is received, the Company shall have the
right, exercisable only once, to defer the filing of a Registration Statement
with respect to such offering for a period of not more than 60 days from the
delivery of the request by the UTS Holders.
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2.2 RIGHT OF DEFERRAL OF REGISTRATION ON FORM OTHER THAN
FORM S-3
If the Company shall furnish to all Holders who joined in the request
a certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be
detrimental to the Company for any Registration requested under subsection 2.1
to occur at the time the request is received, the Company shall have the right,
exercisable only once in each 12-month period, to defer the filing of a
Registration Statement with respect to such offering for a period of not more
than 60 days from delivery of the request of the Initiating Holders.
2.3 REQUEST FOR REGISTRATION ON FORM S-3
Subject to the remainder of this Agreement, in the event that the
Company receives from Holders a written request that the Company effect any
Registration on Form S-3 at a time when the Company is eligible to register
securities on Form S-3 for an offering by selling shareholders of Registrable
Securities where the aggregate proposed offering price to the public will be at
least $500,000 (U.S.), the Company will promptly give written notice of the
proposed Registration to all the Holders and will as soon as practicable use
its diligent best efforts to effect Registration of the Registrable Securities
specified in such request, together with all or such portion of the Registrable
Securities of any Holder joining in such request as are specified in a written
request delivered to the Company within 20 days after written notice from the
Company of the proposed Registration. There shall be no limit on the number of
occasions on which the Company shall be obligated to effect registration under
this subsection 2.3.
2.4 REGISTRATION OF OTHER SECURITIES IN DEMAND
REGISTRATION
Any Registration Statement filed pursuant to the request of the
Initiating Holders under this Section 2 may, subject to the provisions of
subsection 2.5 and Section 8, include other securities of the Company which are
held by persons who, by virtue of agreements with the Company, are entitled to
include their securities in such Registration.
2.5 UNDERWRITING IN DEMAND REGISTRATION
2.5.1 NOTICE OF UNDERWRITING
If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2,
and the Company shall include such information in the written notice referred
to in subsection 2.1.1, 2.1.2, 2.1.3, 2.1.4 or 2.3. The right of any Holder to
Registration pursuant to this Section 2 shall be conditioned upon such Holder's
agreement to participate in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting.
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2.5.2 SELECTION OF UNDERWRITER IN DEMAND
REGISTRATION
The Company shall (together with all holders proposing to distribute
their securities through such underwriting) enter into an underwriting
agreement with the representative (the "Underwriter's Representative") of the
underwriter or underwriters selected for such underwriting jointly by a
majority of the Registrable Securities being registered by the Initiating
Holders and the Company; provided, however, that in the case of a registration
pursuant to subsection 2.1.3 in which NorAm is the Initiating Holder, the
underwriter or underwriters shall be selected by NorAm subject to the consent
of the Company, which consent shall not be unreasonably withheld.
2.5.3 INCLUSION OF OTHER HOLDERS IN
DEMAND REGISTRATION
If the officers or directors of the Company holding Common Stock other
than Registrable Securities request inclusion in such Registration, or if
holders of securities other than Registrable Securities request and are legally
entitled to inclusion in such Registration, the Initiating Holders shall, on
behalf of all Holders, offer to such officers or directors and such holders of
securities other than Registrable Securities that such securities other than
Registrable Securities be included in the underwriting and may condition such
offer on the acceptance by such persons of the terms of this Section 2.
2.5.4 MARKETING LIMITATION IN DEMAND
REGISTRATION
In the event the Underwriter's Representative advises the Initiating
Holders in writing that market factors require a limitation of the number of
shares to be underwritten, the Common Stock (other than Registrable Securities)
held by officers or directors of the Company, other than UTS Registrable
Securities held by Stuart Xxxxxx Xxxxx,shall be excluded from such Registration
to the extent required by such limitation. If a limitation of the number of
shares is still required, the Initiating Holders shall so advise all holders of
securities which, pursuant to subsection 2.4, would otherwise be underwritten
pursuant to this subsection 2.5, and the number of shares of such securities
that may be included in the Registration and underwriting shall be allocated
among all holders thereof in proportion, as nearly as practicable, to the
respective amounts of securities held by such holders at the time of filing the
Registration Statement. If a limitation of the number of shares is still
required, the Initiating Holders shall so advise all Holders who have requested
to have their Registrable Securities included in the Registration, and the
number of Registrable Securities that may be included in the Registration shall
be allocated among all Holders thereof in proportion, as nearly as practicable,
to the respective amounts of Registrable Securities held by such Holders at the
time of filing the Registration Statement; provided, however, that in a
Registration pursuant to subsection 2.1.2, all Holders except Centra shall be
subject to such proportional reduction and the Registrable Securities of Centra
shall not be reduced unless
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there shall be no other Holders participating in such Registration, in a
Registration pursuant to subsection 2.1.3, all Holders except NorAm shall be
subject to such proportional reduction and the Registrable Securities of NorAm
shall not be reduced unless there shall be no other Holders participating in
such Registration, and in a Registration pursuant to subsection 2.1.4, all
Holders except the UTS Holders shall be subject to such proportional reduction
and the Registrable Securities of the UTS Holders shall not be reduced unless
there shall be no other Holders participating in such Registration. No
Registrable Securities or other securities excluded from the underwriting by
reason of this subsection 2.5.4 shall be included in such Registration
Statement.
2.5.5 RIGHT OF WITHDRAWAL IN DEMAND
REGISTRATION
If any Holder of Registrable Securities, or a holder of other
securities entitled (upon request) to be included in such Registration,
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter, and the Initiating
Holders delivered at least one day before the effective date of the
Registration Statement. The securities so withdrawn shall also be withdrawn
from the Registration Statement.
2.5.6 INCLUSION OF THE COMPANY'S
SECURITIES IN DEMAND REGISTRATION
If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Company may include
securities for its own account in such registration and underwriting if the
underwriter so agrees and if the number of Registrable Securities and other
securities which would otherwise have been included in such Registration and
underwriting will not thereby be limited.
2.6 BLUE SKY IN DEMAND REGISTRATION
In the event of any Registration pursuant to this Section 2, the
Company will exercise its best efforts to Register and qualify the securities
covered by the Registration Statement under such other securities or "blue sky"
laws of such jurisdictions as shall be requested by the Underwriter's
Representative and reasonably appropriate for the distribution of such
securities; provided, however, that (i) the Company shall not be required to
qualify to do business or to file a general consent to service of process in
any such states or jurisdictions unless the Company is already subject to
service in such jurisdiction and except as may be required by the Securities
Act, (ii) the Company shall not be required to Register or qualify the
securities covered by the Registration Statement in any jurisdiction which
requires, as a condition of such Registration or qualification, escrow of
securities of the Company held by founders, officers, directors or employees of
the Company, and (iii) notwithstanding anything in this Agreement to the
contrary, in the event any jurisdiction in which the securities shall be
qualified imposes a nonwaivable requirement that expenses incurred in
connection with the
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qualification of the securities be borne by selling shareholders, such expenses
shall be payable pro rata by the selling shareholders.
2.7 EXCLUSION FROM DEMAND REGISTRATION
Notwithstanding any other provision of this Agreement to the contrary,
(i) Holders of securities that are Registrable Securities from the exercise of
AMR Warrants shall have no demand registration rights with respect to such
securities pursuant to this Section 2, but shall be entitled only to piggyback
registration rights as provided in Section 3, and such securities shall not be
counted as Registrable Securities for purposes of this Section 2, and (ii)
except for those demand rights specifically set forth in Section 2.1.4, UTS
Holders of UTS Registrable Securities shall have no demand registration rights
with respect to such securities pursuant to this Section 2 (including pursuant
to subsection 2.1.1 and subsection 2.3).
SECTION 3. PIGGYBACK REGISTRATION
3.1 NOTICE OF PIGGYBACK REGISTRATION AND INCLUSION OF
REGISTRABLE SECURITIES
3.1.1 GENERAL PIGGYBACK RIGHTS
Subject to the remainder of this Agreement and subsection 3.1.2 below,
in the event the Company decides to Register any of its Common Stock (either
for its own account or the account of a security holder or holders exercising
their respective demand registration rights) on a form that would be suitable
for a registration involving Registrable Securities, the Company will (i)
promptly give each Holder written notice thereof (which shall include a list of
the jurisdictions in which the Company then intends to attempt to qualify such
securities under the applicable "blue sky" or other state securities laws) and
(ii) include in such Registration (and any related qualification under state
securities or "blue sky" laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
delivered to the Company by any Holder within 20 days after delivery of such
written notice from the Company.
3.1.2 LIMITATION OF UTS PIGGYBACK RIGHTS
To the extent that the UTS Holders elect to participate in a
Registration referenced in subsection 3.1.1, the number of UTS Registrable
Securities for which the UTS Holders may request registration is limited by
this subsection 3.1.2. If the Registration referenced by subsection 3.1.1 is
filed prior to the expiration if one year from the date of this Agreement, the
UTS Holders may only request registration of a total of 97,143 shares of the
UTS Registrable Securities. If the Registration referenced in subsection 3.1.1
is filed between the date one year from the date of this Agreement and the date
two years from the date of this Agreement, the UTS Holders may only request
registration for the greater of (i) 97,143 shares of the UTS Registrable
Securities and (ii) 194,286 shares of the UTS Registrable
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Securities minus any amount previously sold upon the exercise of registration
rights contained in subsection 2.1.4 or this subsection 3.1. The UTS Holders
shall not be provided the opportunity to participate in any Registration
effected (i) during the period prior to the issuance of financial statements
reporting 30 days' combined operations of UTS and the Company or (ii) after the
date two years from the date of this Agreement. In addition, the Company shall
have no obligation to register any Registrable Securities on behalf of the UTS
Holders pursuant to this subsection 3.1 unless such securities have a
reasonably anticipated aggregate offering price to the public equal to or
greater than $100,000 (U.S.).
3.2 UNDERWRITING IN PIGGYBACK REGISTRATION
3.2.1 NOTICE OF UNDERWRITING IN PIGGYBACK
REGISTRATION
If the Registration of which the Company gives notice is for a
Registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to subsection
3.1. In such event the right of any Holder to Registration shall be conditioned
upon such underwriting and the inclusion of such Holder's Registrable
Securities in such underwriting to the extent provided in this Section 3. All
Holders proposing to distribute their securities through such underwriting
shall (together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement with
the Underwriter's Representative for such offering.
3.2.2 MARKETING LIMITATION IN PIGGYBACK
REGISTRATION
In the event the Underwriter's Representative advises the Company that
market factors require a limitation of the number of shares to be underwritten,
the Underwriter's Representative may (subject to the allocation priority set
forth in subsection 3.2.3) exclude those Registrable Securities in excess of
10% of the shares to be Registered.
3.2.3 ALLOCATION OF SHARES IN PIGGYBACK
REGISTRATION
In the event that the Underwriter's Representative limits the number
of shares to be included in a Registration pursuant to subsection 3.2.2, the
number of shares to be included in such Registration shall be allocated
(subject to subsection 3.2.2) in the following manner. The shares (other than
Registrable Securities) held by officers and directors of the Company, other
than UTS Registrable Securities held by Stuart Xxxxxx Xxxxx,shall be excluded
from such registration and underwriting to the extent required by such
limitation. If a limitation on the number of shares is still required after
such exclusion, the number of shares that may be included in the Registration
and underwriting shall be allocated among all other holders thereof in
proportion, as nearly as practicable, to the respective amounts of securities
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(including Registrable Securities) which such holders, absent any such
limitation, would otherwise be entitled to include in such Registration.
3.2.4 WITHDRAWAL IN PIGGYBACK REGISTRATION
If any Holder of Registrable Securities, or a holder of other
securities entitled (upon request) to be included in such Registration
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the underwriter
delivered at least one day prior to the effective date of the Registration
Statement. The Registrable Securities so withdrawn shall also be withdrawn from
the Registration Statement.
3.3 BLUE SKY IN PIGGYBACK REGISTRATION
In the event of any Registration of Registrable Securities pursuant to
this Section 3, the Company will exercise its best efforts to register and
qualify the securities covered by the Registration Statement under such other
securities or "blue sky" laws of such jurisdictions as shall be requested by
the Underwriter's Representative and reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions and (ii) notwithstanding
anything in this Agreement to the contrary, in the event any jurisdiction in
which the securities shall be qualified imposes a nonwaivable requirement that
expenses incurred in connection with the qualification of the securities be
borne by selling shareholders, such expenses shall be payable pro rata by
selling shareholders.
SECTION 4. EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with all
Registrations pursuant to Section 2 (other than a Registration on Form S-3 or a
Registration pursuant to subsection 2.1.4) and all Registrations pursuant to
Section 3 shall be borne by the Company. All Registration Expenses incurred in
connection with any registration, qualification, or compliance pursuant to a
Registration on Form S-3 or pursuant to a Registration pursuant to subsection
2.1.4 shall be apportioned among the Company and the Holders of the securities
so Registered on the basis of the number of shares so Registered by the Company
and such Holders. All Selling Expenses shall be borne by the Holders of the
securities Registered pro rata on the basis of the number of shares Registered.
SECTION 5. REGISTRATION PROCEDURES
The Company will keep each Holder whose Registrable Securities are
included in any Registration pursuant to this Agreement advised as to the
initiation and completion of such Registration. At its expense the Company
will: (i) use its best efforts to keep such Registration effective for a period
of 120 days or until the Holder or Holders have completed the distribution
described in the Registration Statement relating thereto, whichever first
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occurs; and (ii) furnish such number of prospectuses (including preliminary
prospectuses) and other documents as a Holder from time to time may reasonably
request.
SECTION 6. INFORMATION FURNISHED BY HOLDER
It shall be a condition precedent to the Company's obligations under
this Agreement that each Holder of Registrable Securities included in any
Registration furnish to the Company such information regarding such Holder and
the distribution proposed by such Holder or Holders as the Company may
reasonably request.
SECTION 7. INDEMNIFICATION
7.1 THE COMPANY'S INDEMNIFICATION OF HOLDERS
To the extent permitted by law, the Company will indemnify each
Holder, each of its officers, directors and constituent partners, each legal
counsel and independent accountant for such Holder, and each person controlling
such Holder, with respect to which qualification or compliance of Registrable
Securities has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter against all claims,
losses, damages, and liabilities (or actions in respect thereof) to the extent
such claims, losses, damages, or liabilities arise out of or are based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
any such Registration Statement, prospectus, offering circular or other
document or upon 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, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
Registration, qualification, or compliance. The Company will reimburse each
such Holder, each of its officers, directors and constituent partners, legal
counsel and independent accountants, each such underwriter, and each person who
controls any such Holder or underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action; provided, however, that the
indemnity contained in this subsection 7.1 shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of the Company (which consent shall not
unreasonably be withheld) and provided, further, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by such
Holder, underwriter, legal counsel, independent accountant or controlling
person and stated to be for use in connection with the offering of securities
of the Company; provided, however, that the obligations of the Company
hereunder shall be limited to an amount equal to the proceeds of the
Registrable Securities sold in such Registration, qualification or compliance.
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7.2 HOLDER'S INDEMNIFICATION OF THE COMPANY
To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
Registration, qualification or compliance is being effected pursuant to this
Agreement, indemnify the Company, each of its directors and officers, each
legal counsel and independent accountant of the Company, each underwriter, if
any, of the Company's securities covered by such a Registration Statement, each
person who controls the Company or such underwriter within the meaning of the
Securities Act, and each other such Holder, each of its officers, directors,
and constituent partners and each person controlling such other Holder, against
all claims, losses, damages, and liabilities (or actions in respect thereof) to
the extent such claims, losses, damages or liabilities arise out of or are
based upon any untrue statement (or alleged untrue statement) of a material
fact contained in any such Registration Statement, prospectus, offering
circular, or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such
Holders, such directors, officers, partners, persons, law and accounting firms,
underwriters, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability, or action, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission (or
alleged omission) is made in such Registration Statement, prospectus, offering
circular, or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use in connection with the offering of securities of the
Company; provided, however, that the obligations of such Holders hereunder
shall be limited to an amount equal to the proceeds to each such Holder of
Registrable Securities sold in such Registration, qualification or compliance.
7.3 INDEMNIFICATION PROCEDURE
Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof
and generally summarize such action. The indemnifying party shall have the
right to participate in and to assume the defense of such claim; provided,
however, that the indemnifying party shall be entitled to select counsel for
the defense of such claim with the approval of any parties entitled to
indemnification, which approval shall not be unreasonably withheld. In the
event that the indemnifying party elects to assume the defense of any such suit
and retain such counsel and if the indemnified party reasonably determines that
a conflict exists between the indemnifying party and the indemnified party in
such defense, the indemnifying party shall pay the reasonable fees and expenses
of one additional counsel with respect to each such suit retained by the
indemnified party selected by the indemnified party (which selection shall be
made by a majority in interest of the indemnifying Holders in the case of the
Holders) and reasonably satisfactory to
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the indemnifying party. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party
of any liability to the indemnified party under this Section 7, but the
omission so to notify the indemnifying party will not relieve such party of any
liability that such party may have to any indemnified party otherwise than
under this Section 7.
SECTION 8. LIMITATIONS ON REGISTRATION RIGHTS GRANTED TO OTHER
SECURITIES
From and after the date of this Agreement, the Company shall not,
without the written consent of Holders of at least 66-2/3% of the Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company that such holder or prospective holder may
require the Company to initiate any Registration of any securities of the
Company; provided, however, that this Section 8 shall not limit the right of
the Company to enter into an agreement with any holder or prospective holder of
any securities of the Company that upon any registration of any of its
securities, the Company will include among the securities which it then
registers securities owned by such holder; and provided, further, that nothing
in this Section 8 or this Agreement shall prohibit or limit the right of a
holder of Common Stock of the Company to Register or sell its shares of Common
Stock.
SECTION 9. TRANSFER AND TERMINATION OF REGISTRATION RIGHTS
The rights to cause the Company to Register securities granted by the
Company under this Agreement to the Holders may be assigned by them to a
transferee or assignee of any Registrable Securities not sold to the public;
provided, however, that (i) such transferee or assignee acquires record or
beneficial ownership of not less than 100,000 of the shares of Registrable
Securities, (ii) NorAm may not transfer or assign any rights under this
Agreement except in connection with the sale or transfer by NorAm of all
Registrable Securities issued to it if such sale or transfer is in compliance
with the restrictions on a sale or transfer set forth in the NorAm Merger
Agreement but only if such restrictions are applicable at the time of the sale
or transfer and (iii) the rights of the UTS Holders under this Agreement are
not transferable. Notwithstanding any other provision of this Agreement; the
rights of the Holders, other than the UTS Holders, to cause the Company to
Register Registrable Securities under this Agreement shall terminate in all
respects ten years after the date of the closing of the Company's first
Registration. The rights of the UTS Holders to cause the Company to Register
UTS Registrable Securities under this Agreement shall terminate in all respects
two years from the date of this Agreement.
SECTION 10. SUCCESSORS AND ASSIGNS
Subject to the limitations of Section 9, this Agreement shall bind and
inure to the benefit of the Company, the Holders and their respective
successors and assigns.
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SECTION 11. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior arrangements and
understandings with respect thereto.
SECTION 12. NOTICES
All notices, requests, consents and other communications hereunder to
any party shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by first class registered or certified mail,
postage prepaid, addressed to such party at the address set forth below, or
such other address as may hereafter be designated in writing by the addressee
to the addressor listing all parties:
(a) If to the Company:
Itron, Inc.
0000 X. Xxxxxxxx Xx.
P.O. Box 15288
Xxxxxxx, XX 00000
Attention: President
(b) If to the Holders, at their respective addresses set
forth on Schedule A hereto.
SECTION 13. CHANGES
The terms and provisions of this Agreement may not be modified or
amended, or any of the provisions hereof waived, temporarily or permanently,
except pursuant to the written consent of the Company and the Holders of
66-2/3% of the Registrable Securities then outstanding. Notwithstanding the
foregoing, in no event may subsection 2.1.3 of this Agreement be amended
without the written consent of NorAm, nor may subsections 2.1.4, 1(j) and (k)
and 3.1.2 of this Agreement be amended without the written consent of the UTS
Holders holding a majority of the UTS Registrable Securities then outstanding.
In addition, in no event may the portions of subsections 1(d) and (f), 2.5.4,
2.7, 3.2.3, 4, 9 and 13 of this Agreement that specifically refer and relate to
the UTS Holders, and not all Holders, be amended without the written consent of
the UTS Holders holding a majority of the UTS Registrable Securities then
outstanding.
SECTION 14. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
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SECTION 15. HEADINGS
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
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SECTION 16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Registration Rights Agreement as of the date set forth above.
Company: ITRON, INC.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx, President
Holders: NORAM ENERGY CORP.
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Its Executive Vice President
BG HOLDINGS, INC.
By
----------------------------------
Its
-------------------------
CENTRA GAS INC.
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Its
-------------------------
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KPL LIMITED PARTNERS, INC.
By
----------------------------------
Its
------------------------
SOUTHERN ELECTRIC plc
By
----------------------------------
Its
-------------------------
/s/ Stuart Xxxxxx Xxxxx
----------------------------------
Stuart Xxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxx, Xx.
----------------------------------
Xxxx X. Xxxxx, Xx.
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19
SCHEDULE A
NorAm Energy Corp.
Attn: Xxxxxxx X. Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
BG Holdings, Inc.
Attn: Xxxxxxx Xxxxxxx
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Centra Gas Inc.
Attn: Xx. Xxxxxx X. Xxxxxx
Suite 3400, Park Place
000 Xxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0, Xxxxxx
KPL Limited Partners, Inc.
c/o Astra Resources
Attn: Xx. Xxx Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Southern Electric plc
Attn: Xx. Xxxxxx Xxxxxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx
Xxxxxxxxx XX0 0XX
England
Stuart Xxxxxx Xxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxx, Xx.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
20
EXHIBIT 10.11
PARTIES TO INDEMNIFICATION AGREEMENTS
XxxxXxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. X'Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxx X. XxXxxxxxx
Xxxx Xxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxx Xxxxx
XxXxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
J. Xxxxxxx Xxxxxxxxx
