EXHIBIT 4.5
EXECUTION COPY
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A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of July 2, 2003
by and among
PG&E CORPORATION
AND
XXXXXX BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
and
BANC ONE CAPITAL MARKETS, INC.
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A/B EXCHANGE REGISTRATION RIGHTS AGREEMENT
This A/B Exchange Registration Rights Agreement (this "Agreement") is
made and entered into as of July 2, 2003 by and among PG&E Corporation, a
California corporation (the "Company"), and Xxxxxx Brothers Inc., Citigroup
Global Markets Inc., Xxxxxxx, Xxxxx & Co., Xxxxxx Xxxxxxx & Co. Incorporated and
Banc One Capital Markets, Inc., as the initial purchasers (the "Initial
Purchasers") named in Schedule 1 to the Purchase Agreement (as defined below),
each of whom has agreed to purchase the Company's 6 7/8% Senior Secured Notes
due 2008 (the "Series A Notes") pursuant to the Purchase Agreement, dated as of
June 27, 2003 (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers.
In order to induce the Initial Purchasers to purchase the Series A
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 7 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1 DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered, or required to be
registered, under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Transferred Restricted
Securities that were validly tendered by Holders thereof pursuant to the
Exchange Offer.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
Series B Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for Series B
Notes in an aggregate principal amount equal to the aggregate principal amount
of the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to (a) certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, and (b) outside the
United States to Persons other than U.S. persons, as such term is defined in
Regulation S, in offshore transactions meeting the requirements of Rule 904 of
Regulation S under the Act.
Holders: As defined in Section 2 hereof.
Indenture: The Indenture, dated as of the date hereof, between the
Company and Bank One, N.A., as trustee (the "Trustee"), pursuant to which the
Notes are to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Offering Memorandum: As defined in the Purchase Agreement.
Person: An individual, partnership, corporation, trust, limited
liability company or unincorporated organization, or a government or agency or
political subdivision thereof or other legal entity.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
Record Holder: With respect to any Interest Payment Date relating to
the Notes, each Person who is a Holder of Notes on the record date with respect
to the Interest Payment Date on which such Interest Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registrar: As defined in the Indenture.
Registration Statement: Any registration statement of the Company
relating to (a) the offering of Series B Notes pursuant to the Exchange Offer or
(b) the registration for resale of
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Transfer Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each case
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and, except as such term is used
in Section 6(c)(iv) hereof, all exhibits and material incorporated by reference
therein.
Regulation S: Regulation S promulgated under the Act.
"Rule 144(k) Period" shall mean the period of two years (or such
shorter or longer period as may hereafter be referred to in Rule 144(k) under
the Act (or similar successor rule)) commencing on the Closing Date.
Series A Notes: As defined in the preamble hereto.
Series B Notes: The Company's 6 7/8 % Senior Secured Notes due 2008 to
be issued pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb),
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series A Note, until the earliest
to occur of (a) the date on which such Series A Note is exchanged by a Person
other than a Broker-Dealer for one or more Series B Notes in the Exchange Offer,
(b) following the exchange by a Broker-Dealer in the Exchange Offer of a Series
A Note for a Series B Note, the date on which such Series B Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Series A Note is effectively registered
under the Act and disposed of in accordance with the Shelf Registration
Statement or (d) the date on which such Series A Note has been transferred in
compliance with Rule 144 under the Act or may be sold or transferred by a Person
who is not an affiliate of the Company pursuant to Rule 144(k) under the Act (or
any other similar provision then in force) without regard to any volume or
manner of sale restrictions thereunder.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2 SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities, has a beneficial interest in
Transfer Restricted Securities issued in book-entry form or
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has the right to acquire such Transfer Restricted Securities, whether or not
such acquisition has actually been effected and disregarding any legal
restrictions upon the exercise of such right.
SECTION 3 REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) file with the Commission on or
prior to 300 days after the Closing Date a Registration Statement under the Act
relating to the Series B Notes and the Exchange Offer, (ii) use commercially
reasonable best efforts to cause such Registration Statement to be declared
effective by the Commission on or prior to 360 days after the Closing Date,
(iii) in connection with the foregoing, file (A) all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the Act and
(C) subject to the proviso contained in Section 6(c)(ix), cause all necessary
filings in connection with the registration and qualification of the Series B
Notes to be made under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange Offer and (iv) upon the effectiveness of
such Registration Statement, commence the Exchange Offer and use commercially
reasonable best efforts to issue, on or prior to 30 business days after the
Exchange Offer Registration Statement has been declared effective or such longer
period as may be required by the federal securities laws, the Series B Notes in
exchange for all Transfer Restricted Securities validly tendered prior thereto
in the Exchange Offer. The Exchange Offer shall be on an appropriate form
selected by the Company that permits registration of the Series B Notes to be
offered in exchange for the Transfer Restricted Securities and permits resales
of Notes held by Broker-Dealers as contemplated by Section 3(c) below. The 300,
360 and 30 day periods referred to in clauses (i), (ii) and (iv) of this Section
3(a) shall not include any period during which the Company is pursuing a
Commission ruling pursuant to Section 6(a)(i) below. Notwithstanding the
foregoing, the Company shall not be required to file a Registration Statement
pursuant to this Section 3(a) if the Company is not able to comply, after
exercising commercially reasonable best efforts, with the requirements of the
Act or Commission policy with respect to the Registration Statement related to
the Exchange Offer. The 300 and 360 day periods referred to in clauses (i) and
(ii) of this Section 3(a) shall include any period during which the Company is
unable to file a Registration Statement pursuant to the previous sentence.
(b) The Company shall use commercially reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 business days. The Company shall cause the Exchange Offer to comply in
all material respects with all applicable federal and state securities laws. No
securities other than the Notes shall be included in the Exchange Offer
Registration Statement.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who owns Series A Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
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Restricted Securities acquired directly from the Company), may exchange such
Series A Notes pursuant to the Exchange Offer; provided, however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of any Series B Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission.
The Company shall use commercially reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Series B Notes (that are
Transfer Restricted Securities) acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other trading activities,
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period of 180 days from the date on which the Exchange Offer
Registration Statement is declared effective or such shorter period that will
terminate when all Notes covered by the Exchange Offer Registration Statement
have been exchanged in the Exchange Offer.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180 day period in order to facilitate such resales.
SECTION 4 SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file the
Exchange Offer Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) any Holder of Transfer Restricted Securities that is
a "qualified institutional buyer," as such term is defined in Rule 144A under
the Act shall notify the Company prior to the 20th day following the
Consummation of the Exchange Offer that such Holder (A) is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) may not resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder, or (C) is a Broker-Dealer and holds Series A Notes
acquired directly from the Company or an affiliate of the Company, the Company
shall, in lieu of, or in the event of the occurrence of the matters specified in
clause (ii) above, in addition to effecting the registration of the Series B
Notes pursuant to the Exchange Offer Registration Statement, use commercially
reasonable best efforts to:
(i) cause to be filed with the Commission a shelf registration
statement pursuant to Rule 415 under the Act, which may be an amendment
to the Exchange Offer
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Registration Statement (in either event, the "Shelf Registration
Statement") on or prior to the earlier to occur of (A) the 30th day
after the date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement or permitted to
Consummate the Exchange Offer or, if later, 300 days after the Closing
Date and (B) the 30th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as contemplated
by clause (ii) of paragraph (a) above or, if later, 300 days after the
Closing Date (such earlier date being the "Shelf Filing Deadline"),
which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have provided
the information required pursuant to Section 4(b) hereof; and
(ii) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 90th day after the Shelf
Filing Deadline.
(iii) Notwithstanding the foregoing, the Company shall not be
required to file a Shelf Registration Statement pursuant to this
Section 4(a) if the Company is not able to comply, after exercising
commercially reasonable best efforts, with the requirements of the Act
or Commission policy with respect to the Shelf Registration Statement.
The 300 and 90 day periods referred to clauses (i) and (ii) of this
Section 4(a) shall include any period during which the Company is
unable to file a Shelf Registration Statement pursuant to the previous
sentence.
The Company shall use commercially reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, until the earlier to occur of the expiration of the Rule 144(k) Period or
such time as all Notes covered by the Shelf Registration Statement cease to be
Transfer Restricted Securities.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to additional interest pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
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SECTION 5 ADDITIONAL INTEREST
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in Sections 3(a) and 4(a), as applicable, (ii) any of such required Registration
Statements has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in Sections 3(a) and 4(a), as applicable,
(the "Effectiveness Target Date"), (iii) the Exchange Offer has not been
consummated within 30 business days, or longer, if required by the federal
securities laws, after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement, or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded within five business days by a post-effective amendment to such
Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company agrees to pay additional interest to each
Holder of Transfer Restricted Securities with respect to the first 90-day period
immediately following the occurrence of such Registration Default, in an amount
equal to $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of the additional interest shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
additional interest of $.20 per week per $1,000 principal amount of Transfer
Restricted Securities. The Company shall in no event be required to pay
additional interest for more than one Registration Default at any given time.
All accrued additional interest shall be paid to Record Holders by the Company
by wire transfer of immediately available funds or by federal funds check on
each Interest Payment Date, as provided in the Indenture. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement or, if applicable, the Shelf Registration Statement) in
the case of (i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement or, if applicable, the Shelf Registration Statement, in
the case of (ii) above, (3)) upon consummation of the Exchange Offer, in the
case of (iii) above, or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that causes the
Exchange Offer Registration Statement or, if applicable, the Shelf Registration
Statement to again be declared effective or made usable in the case of (iv)
above, the accrual of additional interest with respect to the Transfer
Restricted Securities as a result of such clauses (i), (ii), (iii) or (iv), as
applicable, shall cease.
All payment obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such payment obligations with respect to such
Security shall have been satisfied in full; provided, however, that the
additional interest shall cease to accrue on the day immediately prior to the
date such Transfer Restricted Securities cease to be Transfer Restricted
Securities.
The additional interest set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
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SECTION 6 REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
6(c) below, shall use commercially reasonable best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Series A Notes. The Company
hereby agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The
Company hereby agrees however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the
Series B Notes to be issued in the Exchange Offer and (C) it is
acquiring the Series B Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (A) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including any no-action
letter obtained pursuant to clause (i) above), and (B) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
Registration Statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Series B Notes obtained by such Holder in
exchange for Series A Notes acquired by such Holder directly from the
Company.
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(iii) Prior to the effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental letter
to the Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B)
including a representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the Series B
Notes to be received in the Exchange Offer and that, to the best of the
Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Notes received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use all commercially reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto, the Company will prepare and file
with the Commission, in accordance with the terms set forth herein, a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use commercially reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omit to state a
material fact necessary to make the statements therein not misleading
or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use
commercially reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter. Notwithstanding the foregoing, at any time
after Consummation of the Exchange Offer, the Company may allow the
Shelf Registration Statement to cease to become effective and usable if
(A) the board of directors of the Company determines in good faith that
it is in the best interests of the Company not to disclose the
existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company, and the Company notifies
the Holders within two business days after the Board of Directors makes
such determination or (B) the Prospectus contained in the Shelf
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Registration Statement contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided that the Rule 144(k) Period referred to
in Section 4(a) hereof during which the Shelf Registration Statement is
required to be effective and usable shall be extended by the number of
days during which such Registration Statement was not effective or
usable pursuant to the foregoing provisions;
(ii) subject to Section 6(c)(i), prepare and file with the
Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or
4 hereof, as applicable, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all Notes covered by such Registration Statement during
the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration Statement, advise
the underwriter(s), if any, and selling Holders of Transfer Restricted
Securities and, if requested by such Persons, to confirm such advice in
writing (which notice shall not contain any material non-public
information, unless such Holder agrees to keep such information
confidential), (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes and (D) of the existence of any fact or the
happening of any event (the nature of which need not be disclosed) that
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use commercially reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
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(iv) in the case of a Shelf Registration Statement, upon
written request, furnish to each of the selling or exchanging Holders
of Transfer Restricted Securities and each of the underwriter(s), if
any, before filing with the Commission, copies of any Registration
Statement or any related Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (other
than documents incorporated by reference after the initial filing of
such Registration Statement or Prospectus) (which Registration
Statement or Prospectus shall not contain any material non-public
information, unless such Holder agrees to keep such information
confidential), which documents will be subject to the review of such
Holders and underwriter(s), if any, for a period of at least five
business days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus if selling Holders of 25% in
aggregate principal amount of Transfer Restricted Securities covered by
such Registration Statement or the underwriter(s), if any, shall
reasonably object within five business days after receipt thereof. A
selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) in the case of a Shelf Registration Statement, make
available at reasonable times at the Company's principal place of
business for inspection by the selling Holders of Transfer Restricted
Securities, any underwriters participating in any disposition pursuant
to such Registration Statement, and any attorney or accountant retained
by such selling Holders or any of the underwriter(s) who shall certify
to the Company that they have a current intention to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement, such
financial and other information of the Company as reasonably requested
and cause the Company's officers, directors and employees to respond to
such inquiries as shall be reasonably necessary, in the reasonable
judgment of counsel to such Holders, to conduct a reasonable
investigation; provided, however, that each such party shall be
required to maintain in confidence and not to disclose to any other
Person any information or records reasonably designated by the Company
in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such Registration Statement or otherwise), or (B) such
Person shall be required so to disclose such information pursuant to
the subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of
such order, only after such Person shall have given the Company prompt
prior written notice of such requirement and such disclosure is limited
to such portion of the confidential information that such Person is
advised by counsel is legally required to be disclosed and such Person
will exercise reasonable efforts to obtain assurances that confidential
treatment will be afforded such information), or (C) such information
is required to be set forth in such Registration Statement or the
Prospectus included therein or in an amendment to such Registration
Statement or an amendment or supplement to such Prospectus in order
that such Registration Statement, Prospectus, amendment or supplement,
as the case may be, does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
11
(vi) in the case of a Shelf Registration Statement, if
requested by any selling Holders of Transfer Restricted Securities or
the underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(vii) in the case of a Shelf Registration Statement, upon
request, furnish to each selling Holder of Transfer Restricted
Securities and each of the underwriter(s), if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits unless such document
is available through the Commission's website;
(viii) in the case of a Shelf Registration Statement, deliver
to each selling Holder of Transfer Restricted Securities and each of
the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to
Section 6(c)(i), the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(ix) in the case of a Shelf Registration Statement requested
by an Initial Purchaser, enter into such customary agreements
(including an underwriting agreement), and make such customary
representations and warranties, and take all such other customary
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by the Initial Purchaser or, in
the case of registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, by any Holder or Holders
of Transfer Restricted Securities who holds at least 25% in aggregate
principal amount of such class of Transfer Restricted Securities;
provided, that, the Company shall not be required to enter into any
such agreement more than once with respect to all of the Transfer
Restricted Securities and, in the case of a Shelf Registration
Statement, may delay entering into such agreement if (1) the Board of
Directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company or (2) the General Counsel of the Company
determines in good faith that it is in the best interest of the Company
not to disclose the existence of or facts surrounding any proposed or
pending material corporate transaction involving the Company, and the
12
Company notifies the Holders within two business days after the General
Counsel makes such determination; provided that such determination is
based on a written opinion of outside counsel that it would be illegal
to resell or exchange the Notes pursuant to the Registration Statement
unless such facts are publicly disclosed; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) upon request, furnish to the Initial Purchasers,
the Holders of Transfer Restricted Securities who hold at
least 25% in aggregate principal amount of such class of
Transfer Restricted Securities (in the case of a Shelf
Registration Statement), and each underwriter, if any, in such
substance and scope as they may request and as are customarily
made in connection with an offering of debt securities
pursuant to a Registration Statement upon the effective date
of any Registration Statement (and if such Registration
Statement contemplates an Underwritten Offering of Transfer
Restricted Securities, upon the date of the closing under the
underwriting agreement related thereto):
(1) a certificate, dated the date of the
effectiveness of the Shelf Registration Statement,
signed by (y) the Chairman of the Board, the
President or any Vice President and (z) the Chief
Financial Officer or any Treasurer or Assistant
Treasurer of the Company confirming, as of the date
thereof, the matters set forth in paragraph (h) of
Section 7 of the Purchase Agreement and such other
matters as such parties may reasonably request;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration Statement, of
counsel for the Company covering the matters set
forth in paragraphs (a), (b) and (c) of Section 7 of
the Purchase Agreement and such other matter as such
parties may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Company, representatives
of the independent public accountants for the
Company, the Initial Purchasers' representatives and
the Initial Purchasers' counsel in connection with
the preparation of such Registration Statement and
the related Prospectus and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing (relying as to materiality upon facts
provided to such counsel by officers and other
representatives of the Company and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Registration Statement as of its
date, contained an untrue statement of a material
fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
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misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the exhibits, financial statements, notes and
schedules and other financial and statistical data
included in any Registration Statement contemplated
by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the
date of the effectiveness of the Shelf Registration
Statement, from the Company's independent
accountants, in the customary form and covering
matters of the type customarily covered in comfort
letters delivered to underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 7 of the Purchase Agreement,
without exception;
(B) set forth in full or incorporated by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(ix), if any.
(x) in the case of a Shelf Registration Statement, prior to
any public offering of Transfer Restricted Securities, cooperate with
the selling Holders of Transfer Restricted Securities, their
underwriters, if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions
as such selling Holders or underwriter(s) may reasonably request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided, however, that
the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Notes, in any
jurisdiction where it is not now so subject;
(xi) shall issue, upon the request of any Holder of Series A
Notes covered by the Shelf Registration Statement, Series B Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Series A Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Series B Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Series A
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xii) cooperate with the selling Holders of Transfer
Restricted Securities and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and
14
registered in such names as the selling Holders or the underwriter(s),
if any, may request at least two business days prior to any sale of
Transfer Restricted Securities made by such underwriter(s);
(xiii) use commercially reasonable best efforts to cause the
Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xiv) subject to clause (c)(i) above, if any fact or event
contemplated by clause (c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD;
(xvii) otherwise use commercially reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use commercially
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
15
(xix) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act unless such document is
available through the Commission's website.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition and will use its commercially reasonable best efforts to
cause any underwriter to forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xiv) hereof or shall have received the Advice.
The Company may require each Holder of Transfer Restricted Securities
as to which any registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's intended method of
distribution of the applicable Transfer Restricted Securities as the Company may
from time to time reasonably request in writing, but only to the extent that
such information is required in order to comply with the Act. Each such Holder
agrees to notify the Company as promptly as practicable of (i) any inaccuracy or
change in information previously furnished by such Holder to the Company or (ii)
the occurrence of any event, in either case, as a result of which any Prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or omits to state
any material fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities required to be
stated therein or necessary to make the statements therein not misleading and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to such Holder or the distribution of
the applicable Transfer Restricted Securities, an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
Notwithstanding anything herein to the contrary, any party to this
Agreement (and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all Persons, without limitation of any kind,
the U.S. federal income tax treatment and tax structure of the transactions
contemplated by this Agreement (the "Transactions") and all
16
materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such tax treatment and tax structure; provided,
however, that neither party (nor any employee, representative or other agent
thereof) shall disclose any information (a) that is not relevant to an
understanding of the U.S. federal income tax treatment or tax structure of the
Transactions or (b) to the extent such disclosure could result in a violation of
any federal or state securities laws.
SECTION 7 REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Series B Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and (v) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Notes into in the Exchange Offer and/or selling or reselling Notes or
Series B Notes pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as applicable,
for the reasonable fees and disbursements not to exceed $10,000 of not more than
one counsel (who shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP unless another firm
shall be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared).
SECTION 8 INDEMNIFICATION
(a) The Company shall indemnify and hold harmless each Holder of
Transfer Restricted Securities, its officers and employees and each person, if
any, who controls any such Holders, within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases, sales and registration of
Notes), to which that Holder, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
17
Registration Statement or Prospectus or in any amendment or supplement thereto
or (B) any roadshow or investor presentations made to investors by the Company
(whether in person or electronically ("Marketing Materials"), (ii) the omission
or alleged omission to state in any Registration Statement or Prospectus, or in
any amendment or supplement thereto, or in any Marketing Materials any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by any Holder in connection with, or relating in any manner to, the Notes
or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Holder through its
gross negligence or willful misconduct), and shall reimburse each Holder and
each such officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that Holder, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that (I) the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Statement or Prospectus, or in any such amendment or supplement, or
in any Marketing Materials, in reliance upon and in conformity with written
information concerning such Holder furnished to the Company by or on behalf of
any Holder specifically for inclusion therein and (II) with respect to any
untrue statement or alleged untrue statement in, or omission or alleged omission
from, the preliminary prospectus, the foregoing indemnity agreement with respect
to the preliminary prospectus shall not inure to the benefit of any Holder (or
its directors, officers and employees and each person, if any, which controls
such Holder within the meaning of the Act) from whom the person asserting any
such losses, claims, damages or liabilities purchased Notes if (A) other than as
a result of noncompliance by the Company with the requirement of Section 6
hereof, a copy of a final prospectus was not sent or given by or on behalf of
such Holder to such person at or prior to the written confirmation of the sale
of the Notes to such person and (B) the final prospectus would have cured the
defect giving rise to such losses, claims, damages or liabilities. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Holder or to any officer, employee or controlling person
of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company, its officers and employees, its directors, and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Registration Statement or Prospectus, or in
any amendment or supplement thereto, or (B) in any Marketing Materials or (ii)
the omission or alleged omission to state in any Registration Statement or
Prospectus, or in any amendment or supplement thereto, or in any Marketing
Materials any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue
18
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Holders furnished to the
Company by or on behalf of that Holder specifically for inclusion therein, and
shall reimburse the Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to the Company or
any such director, officer, employee or controlling person. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution of such Registrable Securities to the same extent as provided above
with respect to information or affidavit furnished in writing by such Persons as
provided specifically for in any Prospectus or Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ counsel to represent the
indemnified party and its respective directors, officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the indemnified party against the
Company under this Section 8 if, such indemnified party has been advised by its
outside counsel that it is advisable for the indemnified party and those
directors, officers, employees and controlling persons to be jointly represented
by separate counsel, and in that event the fees and expenses of such separate
counsel will be paid by the Company. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one separate firm or attorney
(in addition to one local counsel) at any one time for all such indemnified
parties in connection with any one action or separate but substantially similar
or related action in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release
19
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Holders on the other, from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand and the Holders on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand
and the Holders on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Series
A Notes purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, and the total discounts and
commissions received by the Holders with respect to the Series A Notes purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Series A Notes under the Purchase Agreement. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Holders, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holders agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no Holder
shall be required to contribute any amount in excess of the amount by which the
net proceeds received by it in connection with its sale of Notes exceeds the
amount of any damages which such Holder has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. 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 Holders'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
20
SECTION 9 RULE 144A
The Company hereby agrees with each Holder of Transfer Restricted
Securities, during any period prior to the date no Transfer Restricted
Securities remain outstanding and in which the Company is not subject to Section
13 or 15(d) of the Exchange Act, to make available to any Holder or beneficial
owner of Transfer Restricted Securities, in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities from such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11 SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering at such Holders' expense. In any such
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Company;
provided, that such investment bankers and managers must be reasonably
satisfactory to Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities included in such offering.
SECTION 12 MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages (including the
additional interests contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person that is inconsistent with the terms of this Agreement.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority
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of the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company:
PG&E Corporation
Xxx Xxxxxx, Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Counsel - Corporate (Fax: (000) 000-0000),
With a copy (not constituting notice) to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxx (Fax: (000) 000-0000)
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights hereunder.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder. Nothing herein shall be deemed
to permit any
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assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms of the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement together with the other
Transaction Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings among the parties with respect to such
subject matter.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PG&E CORPORATION
By: /s/ Xxxxx X. Xxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXXX BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
BY XXXXXX BROTHERS INC.
By: /s/ P. Xxxx Xxxxxxx
____________________________
Authorized Representative
[Signature Page to Registration Rights Agreement]
