Exhibit 3
Execution Copy
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REGISTRATION RIGHTS AGREEMENT
by and among
NRG ENERGY, INC.
and
THE HOLDERS NAMED HEREIN
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Dated as of December 5, 2003
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Table of Contents
Page
1. Definitions............................................................1
2. Securities Act Registration............................................4
(a) Shelf Registration............................................4
(b) Registration of Other Securities..............................4
(c) Registration Statement Form...................................4
(d) Effective Registration Statement..............................5
3. Expenses...............................................................5
4. Registration Procedures................................................5
5. Preparation; Confidentiality...........................................9
6. Postponements.........................................................10
7. Indemnification.......................................................11
(a) Indemnification by the Company...............................11
(b) Indemnification by the Offerors and Sellers..................11
(c) Notices of Losses, etc.......................................12
(d) Contribution.................................................13
(e) Other Indemnification........................................13
(f) Indemnification Payments.....................................13
8. Rule 144 and Rule 144A................................................13
9. Amendments and Waivers................................................13
10. Nominees for Beneficial Owners........................................14
11. Assignment............................................................14
12. Calculation of Percentage of Principal Amount of Registrable Notes....14
13. Termination of Registration Rights....................................14
14. Notice of Ownership Below 1%.........................................14
15. Miscellaneous.........................................................15
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(a) Further Assurances...........................................15
(b) Headings.....................................................15
(c) Conflicting Instructions.....................................15
(d) Remedies.....................................................15
(e) Entire Agreement.............................................15
(f) Notices......................................................15
(g) Governing Law................................................16
(h) Severability.................................................16
(i) Counterparts.................................................16
SCHEDULES:
SCHEDULE A - JOINDER AGREEMENT
ii
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of [______], 2003 (this
"Agreement"), by and among NRG Energy, Inc., a Delaware corporation (the
"Company"), and the Holders (as hereinafter defined) of Registrable Notes (as
hereinafter defined) who are signatories to this Agreement or a Joinder
Agreement (as hereinafter defined).
This Agreement is being entered into in connection with the receipt
of Notes (as hereinafter defined) on or after the Effective Date (as
hereinafter defined) by certain Holders pursuant to the Plan (as hereinafter
defined). Upon the issuance of the Notes, each Holder will own Notes in the
aggregate principal amount specified with respect to such Holder on the
signature pages hereto.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein
and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such other Person. For purposes of this
definition, "control" means the ability of one Person to direct the management
and policies of another Person. For purposes of this Agreement, each of
MatlinPatterson Global Opportunities Partners, L.P. and MatlinPatterson Global
Opportunities Partners (Bermuda), L.P. shall be an Affiliate of the other. In
addition, with respect to each of MatlinPatterson Global Opportunities
Partners, L.P. and MatlinPatterson Global Opportunities Partners (Bermuda),
L.P., the term "Affiliate" shall also include its general partner, investment
manager, any entity with the same general partner or investment manager as
MatlinPatterson Global Opportunities Partners, L.P or MatlinPatterson Global
Opportunities Partners (Bermuda), L.P. (as the case may be), and any Person
under the direct or indirect control of MatlinPatterson Global Partners LLC or
MatlinPatterson Global Advisers LLC and the general partner(s) and investment
manager(s) of any such Person, if any.
"Agreement" has the meaning set forth in the preamble hereof.
"Bankruptcy Code" means Title 11 of the United States Code.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City or Minneapolis are authorized or
required by law to be closed.
"Commission" means the U.S. Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereof.
"Company Indemnitee" has the meaning set forth in Section 7(a)
hereof.
"Confidential Material" means all notices delivered by the Company
under this Agreement and any and all other information, in any form or medium,
written or oral, concerning or relating to the Company (whether prepared by
the Company, its Representatives (as hereinafter defined) or otherwise),
irrespective of the form or means of communication, which is labeled or
otherwise identified as confidential and is furnished to a Holder of
Registrable Notes or its Representative by or on behalf of the Company,
including without limitation all such oral and written information relating to
financial statements, projections, evaluations, plans, programs, customers,
suppliers, facilities, equipment and other assets, products, processes,
marketing, research and development, trade secrets, know-how, patent
applications that that have not been published, technology and other
confidential information and intellectual property of the Company. During (i)
the period beginning on the date hereof and ending on the date that the
registration referred to therein either becomes effective or is abandoned and
(ii) any period during which the Company defers or suspends the use of any
registration statement referred to herein as provided by Section 6 hereto, all
information provided to the Holders of Registrable Notes under this Agreement
shall be deemed to be Confidential Material, whether or not labeled or
otherwise identified as Confidential Information. "Confidential Material"
shall not include information that: (a) is or becomes available to the public
generally, other than as a result of disclosure by the relevant Holder or one
of the Representatives of such Holder in breach of the terms of this
Agreement, or (b) becomes available to the relevant Holder from a source other
than the Company or one of the Representatives of such Holder, including
without limitation prior to the date hereof, provided that, the Holder
reasonably believes that such source is not bound by a confidentiality
agreement with or does not have a contractual, legal or fiduciary obligation
of confidentiality to the Company or any other person with respect to such
information.
"Effective Date" means the effective date of the Plan pursuant to
the terms thereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Expenses" means all expenses incident to the Company's performance
of or compliance with its obligations under this Agreement, including, without
limitation, all registration and filing fees, listing, stock exchange and NASD
fees (but only if the Company lists the Notes and agrees to pay such fees for
holders of Notes other than the Holders), all fees and expenses of complying
with state securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger, telephone and delivery expenses, all rating
agency fees, the fees, disbursements and other charges of counsel for the
Company and of its independent public accountants, including the expenses
incurred in connection with any special audits required by or incident to such
performance and compliance, the fees and expenses incurred in connection with
the listing of the securities to be registered on each securities exchange or
national market system if required pursuant to Section 4(k) (but only if the
Company lists the Notes and agrees to pay such fees for holders of Notes other
than the Holders), the reasonable fees and disbursements of one law firm (per
registration statement prepared) representing the Holders (selected by the
Holders holding at least 50.1% of the aggregate principal amount of
Registrable Notes then
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outstanding covered by such registration), the fees and expenses of any
special experts retained by the Company in connection with such registration,
and the fees and expenses of other Persons retained by the Company, but
excluding applicable transfer taxes, if any, which discounts, commissions and
transfer taxes shall be borne by the Holders in all cases; provided that, in
any case where Expenses are not to be borne by the Company, such Expenses
shall not include salaries of Company personnel or general overhead expenses
of the Company, auditing fees, premiums or other expenses relating to
liability insurance or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the ordinary
course of its business or which the Company would have incurred in any event.
"Holder" means each of the signatory to this Agreement.
"Holder Indemnitee" has the meaning set forth in Section 7(b)
hereof.
"Indenture" means the Indenture, dated as of ______ entered into
between the Company and the Trustee, regarding the issuance of Notes for an
aggregate principal amount of $500,000,000.
"Loss" and "Losses" have the meanings set forth in Section 7(a)
hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"Notes" means the aggregate principal amount of 10.0% Senior Note
due 2010 of the Company.
"Offering Documents" has the meaning set forth in Section 7(a)
hereof.
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint stock company,
trust, unincorporated organization, governmental or regulatory body or
subdivision thereof or other entity.
"Plan" means the Plan of Reorganization under Chapter 11 of the
Bankruptcy Code for the Company and certain of its domestic subsidiaries, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Public Offering" means a public offering and sale of Notes pursuant
to an effective registration statement (other than a registration statement on
Form S-4 or Form S-8 or any successor or similar forms) under the Securities
Act.
"Registrable Notes" means , at any time, the Notes owned by the
Holders from time to time; provided, however, that the Notes will cease to be
Registrable Notes upon the earlier of (a) a registration statement covering
such Registrable Notes has been declared effective and such Registrable Notes
has been sold pursuant to such effective registration statement, (b) such
Registrable Notes become eligible for sale under Rule 144(k) without any
volume, manner of sale or other restrictions, or (c) such Registrable Notes
shall have ceased to be outstanding.
"Representative" has the meaning set forth in Section 5(b) hereof.
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"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar or successor statute.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Transfer" means any transfer, sale, assignment, pledge,
hypothecation or other disposition of any interest. "Transferor" and
"Transferee" have correlative meanings.
"Trustee" means Wilmington Trust Company and any successor thereof
acting as Trustee under the Indenture.
In this Agreement, all references to "ownership" of Notes or
Registrable Notes shall be deemed to mean the beneficial ownership of Notes or
Registrable Notes, unless otherwise specified.
2. Securities Act Registration.
(a) Shelf Registration. The Company shall prepare and file or cause
to be prepared and filed with the Commission under the Securities Act a
registration statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by Holders thereof of all
of the Registrable Notes. The Company shall use its reasonable best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act as soon as practicable (but in no event later than ten (10)
days) after the Company becomes eligible to use registration statements on
Form S-3 in accordance with the applicable securities laws and regulations
(the "Effectiveness Deadline Date"), provided that the Effectiveness Deadline
Date shall, in no event, be later than May 1, 2004 if the Commission does not
review or comment on the Shelf Registration Statement; provided further that,
if the Commission reviews and has comments on the Shelf Registration
Statement, the Effectiveness Deadline Date shall be extended until the date
that is five (5) days after the Company becomes aware that the Commission has
no further comments on the Shelf Registration Statement. The Company shall use
its reasonable best efforts to become (i) eligible to use registration
statements on Form S-3 in accordance with applicable laws and regulations as
expeditiously as possible after the Effective Date, (ii) to communicate and
respond as diligently and expeditiously as possible to any comments made by
the Commission on the Shelf Registration Statement, and (iii) cause the Shelf
Registration Statement to be declared effective as soon as practicable after
the date that such Shelf Registration Statement is filed with the Commission.
(b) Registration of Other Securities. When the Company shall effect
a registration pursuant to Section 2(a) hereof, no securities other than the
Registrable Notes shall be included among the securities covered by such
registration.
(c) Registration Statement Form. Registrations under Section 2(a)
hereof shall be on such appropriate registration form prescribed by the
Commission under the Securities Act as
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shall be selected by the Company, provided that the registration form (i)
shall be available for the sale of the Registrable Notes to be registered
thereunder, (ii) shall be suitable for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act registering the
resale from time to time by Holders hereof of all the Registrable Notes, and
(ii) shall permit the registration of such Registrable Notes for resale by
such Holders in accordance with the methods of distribution elected by the
Holders, which shall be set forth in the Shelf Registration Statement. The
Company agrees to include in any such registration statement filed pursuant to
Section 2(a) hereof all information which counsel for the Holders holding at
least 50.1% of the aggregate principal amount of Registrable Notes then
outstanding covered by such registration effected pursuant hereto shall advise
is legally required to be included.
(d) Effective Registration Statement. A registration pursuant to
Section 2(a) hereof shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has been
declared effective by the Commission on or before the
Effectiveness Deadline Date and remains continuously effective
in compliance with the provisions of the Securities Act and the
laws of any state or other jurisdiction applicable to the
disposition of Registrable Notes covered by such registration
statement until such time as the Company's obligations under
Section 2(a) hereof terminate in accordance with Section 13
hereof, subject to the right of the Company under Section 6; or
(ii) if, after it has become effective and prior to the termination
of the Company's obligations under Section 2(a) hereof in
accordance with Section 13 hereof, such registration is
interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental or
regulatory agency or court for any reason other than a
violation of applicable law solely by any Holder and has not
thereafter become effective.
3. Expenses. Except as otherwise provided in the final paragraph of Section 4,
the Company shall pay all Expenses in connection with any registration
pursuant to Sections 2(a) hereof, whether or not such registration shall
become effective.
4. Registration Procedures. To effect a registration under the Securities Act
as provided in Sections 2(a) hereof, the Company shall, as expeditiously as
possible:
(a) (A) prepare and file with the Commission the requisite
registration statement to effect such registration, (B)
thereafter cause such registration statement to become
effective before the Effectiveness Deadline Date and remain
continuously effective in accordance with the provisions of
Section 2(d)(i), and (C) as promptly as reasonably practicable
give notice to the Holders, in writing when a registration
statement, or any post-effective amendment to a registration
statement has been declared effective;
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(b) 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 and the Exchange Act with
respect to the disposition of all Registrable Notes covered by
such registration statement until such time as all of such
Registrable Notes has been disposed of in accordance with the
method of disposition set forth in such registration statement
or there ceases to be any Registrable Notes;
(c) furnish to each Holder such number of copies of such drafts and
final conformed versions of such registration statement and of
each such amendment and supplement thereto (in each case
including all exhibits and any documents incorporated by
reference), such number of copies of such drafts and final
versions of the prospectus contained in such registration
statement (including each preliminary prospectus and any
summary prospectus), if any, and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents,
as the Holders may reasonably request in writing;
(d) use its reasonable best efforts (i) to register or qualify all
Registrable Notes covered by such registration statement under
such other securities or blue sky laws of such states or other
jurisdictions of the United States of America as the Holders
shall reasonably request in writing, (ii) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any
other action that may be necessary or reasonably advisable to
enable such Holders to consummate the disposition in such
jurisdictions of the Registrable Notes to be sold by such
Holders, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for
the requirements of this Section 4(d) be obligated to be so
qualified, to subject itself to taxation in such jurisdiction
or to consent to general service of process in any such
jurisdiction;
(e) use its reasonable best efforts to cause all Registrable Notes
covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies
or authorities as may be necessary in the opinion of counsel to
the Company and counsel to the Holder or Holders to enable the
Holder or Holders thereof to consummate the disposition of such
Registrable Notes;
(f) notify each Holder promptly, and confirm such advice promptly
in writing thereafter (i) when the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has been
filed and, with respect to the registration statement and any
post-effective amendment, when the same has become effective;
(ii) of any request by the Commission for amendments or
supplements to the registration statement or prospectus or for
additional information; (iii) of the issuance by the
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Commission of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings
by any Person for that purpose; and (iv) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of any Registrable Notes for sale under the
securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(g) promptly notify each Holder if any, at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon 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 not misleading in the light of the
circumstances under which they were made and, at the written
request of any such Holder, promptly prepare and furnish to it
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 securities, such
prospectus, as supplemented or amended, 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 not misleading in the light of the
circumstances under which they were made;
(h) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement
relating to the Registrable Notes at the earliest possible
moment;
(i) otherwise comply with all applicable rules and regulations of
the Commission and any other governmental agency or authority
having jurisdiction over the offering, and make available to
its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve
months, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, furnish to each Holder at least 10 days prior to
the filing thereof a copy of any amendment or supplement to
such registration statement or prospectus, and not file any
amendment or supplement thereof which does not comply in all
material respects with the requirements of the Securities Act
or the rules and regulations thereunder;
(j) if any Notes are listed or quoted on a securities exchange or
inter-dealer quotation system, use its reasonable best efforts
to cause all such Registrable Notes covered by a registration
statement to be listed or quoted on each such securities
exchange or inter-dealer automated quotation system;
(k) provide and maintain a transfer agent and registrar (which
transfer agent and registrar may be the Trustee) for the
Registrable Notes covered by a registration statement from and
after a date no later than the effective date thereof;
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(l) if requested by the Holders holding at least 50.1% of the
aggregate principal amount of Registrable Notes being sold,
promptly incorporate in a prospectus supplement or
post-effective amendment such information the Holders of at
least 50.1% of the aggregate principal amount of the
Registrable Notes being sold, as the case may be, agree should
be included therein relating to the plan of distribution with
respect to such Registrable Notes; and make all required
filings of such prospectus supplement or post-effective
amendment within five Business Days after being notified in
writing of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(m) if requested by the Holders holding at least 50.1% of the
aggregate principal amount of Registrable Notes being sold,
cooperate with the such Holders, to facilitate the timely
preparation and delivery of certificates representing the
Registrable Notes to be sold and cause such Registrable Notes
to be in such denominations as are permitted by the Indenture
and registered in such names as such Holders may request in
writing at least five Business Days prior to the sale of such
Registrable Notes;
(n) provide a CUSIP number for all Registrable Notes covered by the
registration statement not later than the effective date of
such registration statement and provide the Trustee for the
Notes with certificates for the Registrable Notes that are in a
form eligible for deposit with The Depository Trust Company or
its nominee or custodian; and
(o) cause the Indenture to remain qualified under the TIA and in
connection therewith, cooperate with the Trustee to effect such
changes to the Indenture as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA and
execute, and use reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed
with the Commission to enable the Indenture to be qualified in
a timely manner.
As a condition to the obligations of the Company to complete any
registration pursuant to this Agreement with respect to the Registrable Notes
of a Holder, such Holder must furnish to the Company in writing such
information regarding itself and the Registrable Notes held by it as is
necessary to effect the registration of such Holder's Registrable Notes and is
requested in writing by the Company. At least 30 days prior to the first
anticipated filing date of a registration statement for any registration under
this Agreement, the Company will notify in writing each Holder of the
information referred to in the preceding sentence which the Company is
requesting from that Holder whether or not such Holder has elected to have any
of its Registrable Notes included in the registration statement. If, within 10
days prior to the anticipated filing date, the Company has not received the
requested information from a Holder, then the Company may file the
registration statement without including Registrable Notes of that Holder.
Each Holder agrees that as of the date that a final prospectus is
made available to it for distribution to prospective purchasers of its
Registrable Notes it shall cease to distribute
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copies of any preliminary prospectus prepared in connection with the offer and
sale of such Registrable Notes. Each Holder further agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 4(g), such Holder shall forthwith discontinue such
Holder's disposition of Registrable Notes pursuant to the registration
statement relating to such Registrable Notes until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
4(g) and, if so directed by the Company, 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 relating to such Registrable Notes
current at the time of receipt of such notice. If any event of the kind
described in Section 4(g) occurs and such event is the fault solely of a
Holder (or Holders), such Holder (or such Holders) shall pay all Expenses
attributable to the preparation, filing and delivery of any supplemented or
amended prospectus contemplated by Section 4(g).
5. Preparation; Confidentiality.
(a) Preparation. In connection with the preparation and filing of
the registration statement under the Securities Act pursuant to
this Agreement, the Company shall (i) give representatives
(designated to the Company in writing) of each Holder or group
of Holders holding at least 20% of the aggregate principal
amount of Registrable Notes to be registered under such
registration statement and one firm of counsel retained on
behalf of Holders holding at least 50.1% of the aggregate
principal amount of Registrable Notes then outstanding covered
by such registration statement, the reasonable opportunity to
participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission,
and each amendment thereof or supplement thereto, (ii) upon
reasonable advance notice to the Company, give each of them
such reasonable access to all financial and other records,
corporate documents and properties of the Company and its
subsidiaries, as shall be necessary, in the reasonable opinion
of such Holders' counsel, to conduct a reasonable due diligence
investigation for purposes of the Securities Act, and (iii)
upon reasonable advance notice to the Company, provide such
reasonable opportunities to discuss the business of the Company
with its officers, directors, employees and the independent
public accountants who have certified its financial statements
as shall be necessary, in the reasonable opinion of such
Holders' counsel, to conduct a reasonable due diligence
investigation for purposes of the Securities Act.
(b) Confidentiality.
(i) Each Holder of Registrable Notes shall and shall cause its
directors, officers, partners, managers, members,
employees, advisors, agents and other representatives,
including without limitation attorneys, accountants,
consultants and financial advisors (collectively,
"Representatives") to maintain the confidentiality of and
not to disclose any Confidential Material; provided,
however, that a Holder may disclose Confidential Material
(A) to such of its Representatives who need such
information in connection with such Holder's investment in
securities of the Company, or
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(B) to the extent required by applicable law, regulation,
legal process or court order.
(ii) Notwithstanding the foregoing, a Holder or its
Representative may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated hereunder and
all materials of any kind (including opinions or other tax
analyses) that are provided to such Holder or such
Representative relating to such tax treatment and tax
structure, except to the extent necessary to comply with
any applicable federal or state securities laws. This
authorization is not intended to permit disclosure of any
other information, including, without limitation, (A) any
portion of any materials to the extent not related to the
tax treatment or tax structure of the transactions
contemplated hereunder, (B) the identities of participants
or potential participants in the transactions contemplated
hereunder, (C) the existence or status of any
negotiations, (D) any pricing or financial information
(except to the extent such pricing or financial
information is related to the tax treatment or tax
structure of the transactions contemplated hereunder), or
(E) any other term or detail not relevant to the tax
treatment or the tax structure of the transactions
contemplated hereunder. Each Holder agrees not to
(directly or indirectly) trade in the Company's securities
in violation of the applicable federal and state
securities laws and regulations. Each Holder shall not
grant access, and the Company shall not be required to
grant access, to Confidential Material under this Section
5 to any Representative who will not agree to maintain the
confidentiality (to the same extent a Holder is
required to maintain confidentiality) of any Confidential
Material received from or otherwise made available to it
by the Company or the Holders under this Agreement.
(iii) Each Holder shall be bound by this Section 5(b) and shall
remain bound until the earlier of (A) the first
anniversary of the date on which the registration
statement is no longer in effect, and (B) the first date
on which the Confidential Material received by such Holder
ceases to be Confidential Material.
6. Postponements. The Company shall not be obligated to file any registration
statement, or file any amendment or supplement to any registration statement,
and may suspend any Holder's rights to make sales pursuant to any effective
registration statement, at any time when the Company, in the good faith and
reasonably informed judgment of its Board of Directors, determines that the
filing thereof at the time requested, or the offering of securities pursuant
thereto, would adversely affect a pending or proposed Public Offering of the
Company's securities, a material financing, or a material acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction, or
negotiations, discussions or pending proposals with respect thereto. The
Company shall promptly give the Holders written notice that such determination
has been made by the Board of Directors and (if known) an estimate of the
anticipated duration of the delay. The filing of a registration statement, or
any amendment or supplement thereto, by the Company cannot be deferred, and
any Holder's rights to make sales
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pursuant to an effective registration statement cannot be suspended, pursuant
to the provisions of this Section 6 for more than 15 days after the
abandonment or consummation of any of the foregoing proposals or transactions.
The Company may so defer or suspend the use of any registration statement on
not more than three occasions in a calendar year and for no more than a total
of 120 days in a calendar year; provided that, after deferring or suspending
the use of any registration statement, the Company may not again defer or
suspend the use of the registration statement until a period of 30 days has
elapsed after resumption of the use of the registration statement. The Company
shall promptly notify each Holder of the expiration or earlier termination of
such deferral or suspension period. If the Company suspends any Holder's
rights to make sales pursuant hereto, the applicable registration period shall
be extended by the number of days of such suspension.
7. Indemnification.
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to Sections 2(a) hereof,
the Company agrees to indemnify and hold harmless to the fullest extent
permitted by law each Holder, each other Person, if any, who controls such
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and their respective stockholders, directors, officers,
employees, partners, agents and Affiliates (each, a "Company Indemnitee" for
purposes of this Section 7(a)), against any losses, claims, damages,
liabilities, joint or several, actions or proceedings, whether commenced or
threatened, in respect thereof and whether or not such Company Indemnitee is a
party thereto, and expenses, including, without limitation, the reasonable
fees, disbursements and other charges of legal counsel and reasonable costs of
investigation and defense, to which such Company Indemnitee may become subject
under the Securities Act or otherwise (collectively, a "Loss" or "Losses"),
insofar as such Losses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered or otherwise offered or
sold under the Securities Act or otherwise, any preliminary prospectus, final
prospectus or summary prospectus related thereto, any amendment or supplement
thereto, any exhibits to the registration statement or documents or other
information incorporated by reference into such registration statement or
prospectus (collectively, the "Offering Documents"), or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of the
circumstances in which they were made not misleading, or any violation by the
Company of any federal or state law, rule or regulation applicable to the
Company and relating to action required of or inaction by the Company in
connection with any such registration; provided, however, the Company shall
not be liable to any Company Indemnitee in any such case to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such Offering
Documents in reliance upon and in conformity with information furnished by
such Company Indemnitee to the Company in a writing duly executed by such
Company Indemnitee specifically stating that it is expressly for use therein.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnitee and shall
survive the transfer of such securities by such Company Indemnitee.
(b) Indemnification by the Offerors and Sellers. In connection with
any registration statement filed by the Company pursuant to Sections 2(a)
hereof in which a Holder has
11
registered for sale Registrable Notes, each such Holder, severally and not
jointly, agrees to indemnify and hold harmless to the fullest extent permitted
by law the Company and each of its directors, officers, employees, agents,
partners, stockholders, Affiliates and each other Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each other seller and such seller's directors,
officers, employees, agents, partners, stockholders, Affiliates and each other
Person, if any, who controls the seller within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act (each, a "Holder
Indemnitee" for purposes of this Section 7(b)), against all Losses insofar as
such Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Offering Documents or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of
circumstances in which they were made not misleading, if such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished by such Holder to
the Company in writing duly executed by such Holder specifically stating that
it is expressly for use therein; provided, however, that the liability of such
indemnifying party under this Section 7(b) shall be limited to the amount of
the net proceeds received by such indemnifying party in the sale of
Registrable Notes giving rise to such liability. Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Holder Indemnitee and shall survive the transfer of such securities by
such indemnifying party.
(c) Notices of Losses, etc. Promptly after receipt by an indemnified
party of written notice of the commencement of any action or proceeding
involving a Loss referred to in Sections 7(a) and (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided, however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under Sections 7(a) and (b), except to the extent that the indemnifying party
is materially and actually prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such Loss, to assume and
control the defense thereof, in each case at its own expense, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after its
assumption of the defense thereof, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of
the defense thereof. No indemnifying party shall be liable for any settlement
of any such action or proceeding effected without its written consent, which
shall not be unreasonably withheld. No indemnifying party shall, without the
consent of the indemnified party (which consent shall not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of such Loss or which requires action on the part of such indemnified
party or otherwise subjects the indemnified party to any obligation or
restriction to which it would not otherwise be subject.
12
(d) Contribution. If the indemnification provided for in this
Section 7 shall for any reason be unavailable to an indemnified party under
Sections 7(a) or (b) in respect of any Loss, then, in lieu of the amount paid
or payable under Sections 7(a) or (b), the indemnified party and the
indemnifying party under Sections 7(a) or (b) shall contribute to the
aggregate Losses (including legal or other expenses reasonably incurred in
connection with investigating the same) (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the prospective
Holders which resulted in such Loss or action in respect thereof, with respect
to the statements, omissions or actions which resulted in such Loss or action
in respect thereof, as well as any other relevant equitable considerations, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and such
prospective Holders, on the other hand, from their sale of Registrable Notes;
provided that, for purposes of this clause (ii), the relative benefits
received by the prospective Holders shall be deemed not to exceed the net
proceeds received by such Holders. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The obligations, if any, of the Holders to
contribute as provided in this Section 7(d) are several in proportion to the
relative value of their respective Registrable Notes covered by such
registration statement and not joint. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or Loss effected without such Person's consent (provided that such
consent shall not be unreasonably withheld).
(e) Other Indemnification. The Company and the Holders shall, with
respect to any required registration or other qualification of securities
under any Federal or state law or regulation of any governmental authority
other than the Securities Act, indemnify Holder Indemnitees and Company
Indemnitees, respectively, against Losses, or, to the extent that
indemnification shall be unavailable to a Holder Indemnitee or Company
Indemnitee, contribute to the aggregate Losses of such Holder Indemnitee or
Company Indemnitee in a manner similar to that specified in the preceding
subsections of this Section 7 (with appropriate modifications).
(f) Indemnification Payments. The indemnification and contribution
required by this Section 8 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when any
Loss is incurred and is due and payable.
8. Rule 144 and Rule 144A. The Company shall take all actions necessary to
enable Holders to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time,
(ii) Rule 144A under the Securities Act, as such Rule may be amended from time
to time, or (iii) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed under the Exchange
Act. Upon the written request of any Holder, the Company shall deliver to such
Holder a written statement as to whether the Company has complied with such
requirements.
9. Amendments and Waivers. Any provision of this Agreement may be amended,
modified or waived if, but only if, the written consent to such amendment,
modification or waiver has
13
been obtained from the Holder or Holders of at least 50.1% of the aggregate
principal amount of the Registrable Notes then outstanding.
10. Nominees for Beneficial Owners. In the event that any Registrable Notes is
held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its election in writing delivered to the Company, be treated
as the Holder of such Registrable Notes for purposes of any request or other
action by any Holder or Holders pursuant to this Agreement or any
determination of the number or percentage of the aggregate principal amount of
Registrable Notes then outstanding held by any Holder or Holders contemplated
by this Agreement. If the beneficial owner of any Registrable Notes so elects,
the Company may require assurances reasonably satisfactory to it of such
owner's beneficial ownership of such Registrable Notes.
11. Assignment. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Any Holder may assign to any Affiliate of
such Holder (as permitted under applicable law) of its Registrable Notes its
rights and obligations under this Agreement; provided that, such Transferee
shall agree in writing by executing a written joinder agreement in the form
attached hereto as Schedule A (the "Joinder Agreement") prior to the Transfer
to be bound by this Agreement as if it were an original party hereto. Except
as provided above, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by any
Holder without the prior written consent of the Company. The Company may not
assign this Agreement or any right, remedy, obligation or liability arising
hereunder or by reason hereof.
12. Calculation of Percentage of Principal Amount of Registrable Notes. For
purposes of this Agreement, all references to a percentage of aggregate
principal amount of the Registrable Notes or Notes shall be calculated based
upon the aggregate principal amount of Registrable Notes or Notes, as the case
may be, outstanding at the time such calculation is made and shall exclude any
Registrable Notes or Notes, as the case may be, owned by the Company or any
subsidiary of the Company.
13. Termination of Registration Rights. The Company's obligations under
Sections 2(a) hereof to register Notes for sale under the Securities Act shall
terminate on the earliest of (w) such time as all of such Registrable Notes
has been disposed of in accordance with such registration statement, (x) there
shall cease to be any Registrable Notes, (y) such time as each Holder,
together with its Affiliates, shall own, in the aggregate, less than 1% of the
aggregate principal amount of the Registrable Notes then outstanding, and (z)
the third anniversary of the date on which the Shelf Registration Statement is
declared effective. In addition, the Company's obligations under this Section
2(a) of this Agreement shall cease with respect to any Person when such Person
ceases to hold Registrable Notes.
14. Notice of Ownership Below 1%. At such time when the ownership by any
Holder and its Affiliates in the aggregate becomes less than 1% of the
aggregate principal amount of the Registrable Notes then outstanding, such
Holder shall notify the Company that its ownership level has become less than
1% of the aggregate principal amount of the Registrable Notes then outstanding
as promptly as practicable, but in no event later than 10 Business Days after
such time.
14
15. Compliance With Securities Laws. Each Holder agrees that it will not offer
for sale, sell, deliver after sale, transfer, pledge or hypothecate the
Registrable Notes in the absence of an effective registration statement
covering such Registrable Notes under the Securities Act of 1933 and any other
applicable securities laws or any applicable exemption to the registration
requirements of such act or such laws.
16. Miscellaneous.
(a) Further Assurances. Each of the parties hereto shall execute
such documents and other papers and perform such further acts as may be
reasonably required or advisable to carry out the provisions of this Agreement
and the transactions contemplated hereby.
(b) Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(c) Conflicting Instructions. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to
the same Registrable Notes, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Notes.
(d) Remedies. Each Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The parties hereto
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
the parties hereto hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(e) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to the
subject matter hereof, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof.
(f) Notices. Any notices or other communications to be given
hereunder by any party to another party shall be in writing and shall be
delivered personally, by telecopy, by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other comparable
delivery service, as follows: (i) if to the Company, to:
NRG Energy, Inc.
Attention: General Counsel
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
15
Xxxxxxxx & Xxxxx LLP
Attention: Xxxxxxxx X. Xxxxxx, P.C.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(ii) if to a Holder, to the address of such Holder as set forth in the
signature pages hereto, or (iii) to such other address as the party to whom
notice is to be given may provide in a written notice to the other parties
hereto, a copy of which shall be on file with the Secretary of the Company.
Notice shall be effective when delivered if given personally, when receipt is
acknowledged if telecopied, three days after mailing if given by registered or
certified mail as described above, and one Business Day after deposit if given
by Federal Express or comparable delivery service.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(h) Severability. Notwithstanding any provision of this Agreement,
neither the Company nor any other party hereto shall be required to take any
action which would be in violation of any applicable Federal or state
securities law. The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of any other provision of this Agreement in such jurisdiction
or the validity, legality or enforceability of this Agreement, including any
such provision, in any other jurisdiction, it being intended that all rights
and obligations of the parties hereunder shall be enforceable to the fullest
extent permitted by law.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
NRG ENERGY, INC.
By:
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
HOLDER:
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Aggregate Principal Amount of Notes Owned:
------------------------------------------
Address:
----------------------------------
------------------------------------------
------------------------------------------
Telephone No.:
----------------------------
Facsimile No.:
----------------------------
SCHEDULE A
REGISTRATION RIGHTS AGREEMENT
Joinder Agreement
The undersigned is executing and delivering this Joinder Agreement
pursuant to the Registration Rights Agreement dated as of December 5, 2003 (as
the same may hereafter be amended, the "Agreement"), among NRG Energy, Inc., a
Delaware corporation (the "Company"), and the other persons named as parties
therein. Capitalized terms used herein and not defined herein have the
meanings set forth in the Agreement.
By executing and delivering this Joinder Agreement to the Company,
the undersigned hereby agrees to become a party to, to be bound by, and to
comply with the provisions of the Agreement in the same manner as if the
undersigned were a Holder of Registrable Notes as an original signatory to the
Agreement, and the undersigned's ____ aggregate principal amount of Notes
shall be included as Registrable Notes under the Agreement.
Accordingly, the undersigned has executed and delivered this Joinder
Agreement as of the ___ day of ____________, 200__.
HOLDER:
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Aggregate Principal Amount of Notes Owned:
------------------------------------------
Address:
----------------------------------
------------------------------------------
------------------------------------------
Telephone No.:
----------------------------
Facsimile No.:
----------------------------
