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8-K - FORM 8-K - Energy Future Holdings Corp /TX/ | form8-k.htm |
EX-4.1 - EXHIBIT 4.1 - Energy Future Holdings Corp /TX/ | ex4-1.htm |
EXHIBIT
4.2
Energy
Future Holdings Corp.
$500,000,000
10.000% Senior Secured Notes due 2020
unconditionally
guaranteed as to the
payment
of principal, premium,
if
any, and interest by the
Guarantors
Registration Rights
Agreement
January
12, 2010
Citigroup
Global Markets Inc.
390
Greenwich Street, 4th Floor
New York,
New York 10013
and
Goldman,
Sachs & Co.
200 West
Street
New York,
NY 10282
and
Credit
Suisse Securities (USA) LLC
11
Madison Avenue
New York,
NY 10010
and
J.P.
Morgan Securities Inc.
270 Park
Avenue
New York,
New York 10017
As
representatives of the several Initial Purchasers
named in
Schedule I to the Purchase Agreement
Ladies
and Gentlemen:
Energy
Future Holdings Corp., a Texas corporation (the “Company”),
proposes to issue and sell to the Initial Purchasers (as defined herein) upon
the terms set forth in the Purchase Agreement (as defined herein) $500,000,000
in aggregate principal amount of its 10.000% Senior Secured Notes due 2020 (the
“Notes”). The
Notes will be unconditionally guaranteed by the Guarantors (as defined
herein). In order to induce the Initial Purchasers (including the
Market Makers) to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchasers and any subsequent holder or holders of the Registrable
Securities (as defined herein). The execution and delivery of this
Agreement is a condition to the Initial Purchasers’ obligations under the
Purchase Agreement.
1. Certain
Definitions. For purposes of this Registration Rights
Agreement (this “Agreement”),
the following terms shall have the following respective meanings:
“Additional
Interest” shall have the meaning assigned thereto in
Section 2(d).
“Affiliate
Investor” means any of the several Investors (as defined in the
Indenture) that owns any Securities or Exchange Securities to the extent that
such person is included in a Market Making Shelf Registration in accordance with
Section 2(c) hereof.
“Base
Interest” shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
“broker-dealer”
shall mean any broker or dealer registered with the Commission under the
Exchange Act.
“Business
Day” shall have the meaning set forth in Rule 13e-4(a)(3)
promulgated by the Commission under the Exchange Act, as the same may be amended
or succeeded from time to time.
“Commission”
shall mean the United States Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
“EDGAR
System” means the EDGAR filing system of the Commission and the rules and
regulations pertaining thereto promulgated by the Commission in Regulation S-T
under the Securities Act and the Exchange Act, in each case as the same may be
amended or succeeded from time to time (and without regard to
format).
“Effective
Time,” in the case of (i) an Exchange Registration, shall mean the time
and date as of which the Commission declares the Exchange Registration Statement
effective or as of which the Exchange Registration Statement otherwise becomes
effective pursuant to the Securities Act, (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective pursuant to the Securities Act and (iii) a Market Making Shelf
Registration, shall mean the time and date as of which the Commission declares
the Market Making Shelf Registration Statement effective or as of which the
Market Making Shelf Registration Statement otherwise becomes effective pursuant
to the Securities Act.
“Electing
Holder” shall mean any holder of Registrable Securities that has returned
a completed and signed Notice and Questionnaire to the Company in accordance
with Section 3(d)(ii) or Section 3(d)(iii) and the instructions set
forth in the Notice and Questionnaire.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder, as the same may
be amended or succeeded from time to time.
“Exchange
Offer” shall have the meaning assigned thereto in
Section 2(a).
“Exchange
Registration” shall have the meaning assigned thereto in
Section 3(c).
“Exchange
Registration Statement” shall have the meaning assigned thereto in
Section 2(a).
“Exchange
Securities” shall have the meaning assigned thereto in
Section 2(a).
“Guarantors”
shall have the meaning assigned thereto in the Indenture.
“holder”
shall mean each of the Initial Purchasers and other persons who acquire
Registrable Securities from time to time (including any successors or assigns),
in each case for so long as such person owns any Registrable
Securities.
“Indenture”
shall mean the Indenture, dated as of the date hereof, among the Company, the
Guarantors and The Bank of New York Mellon Trust Company, N.A., as Trustee,
governing the Notes, as the same may be amended from time to time.
“Initial
Purchasers” shall mean the Initial Purchasers named in Schedule I to the
Purchase Agreement.
“Issue
Date” shall mean January 12, 2010, the date of original issuance of the
Securities.
“Market
Maker” shall mean any of Citigroup Global Markets Inc., Goldman, Sachs
& Co., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities Inc., Banc
of America Securities LLC or Morgan Stanley & Co. Incorporated (and
collectively, the “Market
Makers”) or their respective affiliates.
“Market-Making
Conditions” shall have the meaning assigned thereto in
Section 2(c).
“Market Making
Shelf Registration” shall have the meaning assigned thereto in
Section 2(c).
“Market Making
Shelf Registration Statement” shall have the meaning assigned thereto in
Section 2(c).
“Material Adverse
Effect” shall have the meaning set forth in
Section 5(c).
“Notice and
Questionnaire” means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
“person”
shall mean a corporation, limited liability company, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
“Purchase
Agreement” shall mean the Purchase Agreement, dated January 7, 2010 among
the Company, the Guarantors and the Initial Purchasers relating to the
Securities.
“Registrable
Securities” shall mean the Securities; provided, however, that a
Security shall cease to be a Registrable Security upon the earliest to occur of
the following: (i) in the circumstances contemplated by
Section 2(a), the Security has been exchanged for an Exchange Security in
an Exchange Offer as contemplated in Section 2(a) (provided, that any Exchange
Security that, pursuant to the last two sentences of Section 2(a), is
included in a prospectus for use in connection with resales by broker-dealers
shall be deemed to be a Registrable Security with respect to Sections 5, 6 and 9
until resale of such Registrable Security has been effected within the 90-day
period referred to in Section 2(a)); (ii) in the circumstances contemplated
by Section 2(b), a Shelf Registration Statement registering such Security
under the Securities Act has been declared or becomes effective and such
Security has been sold or otherwise transferred by the holder thereof pursuant
to and in a manner contemplated by such effective Shelf Registration Statement;
(iii) such Security is sold pursuant to Rule 144 under circumstances in
which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Company or pursuant to the Indenture; (iv) such Security (a) is freely
transferable without restriction by persons that are not affiliates of the
Company pursuant to Rule 144 or any successor provision thereto or otherwise
where no conditions of Rule 144 are then applicable (other than the holding
period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding
period requirement is satisfied) (b) does not bear any restrictive legends and
(c) does not bear a restrictive CUSIP number; or (v) such Security shall cease
to be outstanding.
“Registration
Default” shall have the meaning assigned thereto in
Section 2(d).
“Registration
Default Period” shall have the meaning assigned thereto in
Section 2(d).
“Registration
Expenses” shall have the meaning assigned thereto in
Section 4.
“Resale
Period” shall have the meaning assigned thereto in
Section 2(a).
“Restricted
Holder” shall mean (i) a holder that is an affiliate of the Company
within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder’s business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the
Company.
“Rule 144,”
“Rule 405,”
“Rule 415,”
“Rule 424,”
“Rule 430B”
and “Rule 433”
shall mean, in each case, such rule promulgated by the Commission under the
Securities Act (or any successor provision), as the same may be amended or
succeeded from time to time.
“Secondary Offer
Registration Statement” shall mean (i) the Shelf Registration Statement
required to be filed by the Company pursuant to Section 2(b), and/or (ii)
the Market Making Shelf Registration Statement required to be filed by the
Company pursuant to Section 2(c), in each case, as applicable; provided, however, that
references in this Agreement to a Secondary Offer Registration Statement shall
not be deemed to include a Market Making Shelf Registration Statement at any
time during which the Market-Making Conditions are not applicable. As
used herein, references to a Secondary Offer Registration Statement in the
singular shall, if applicable, be deemed to be in the plural.
“Secondary Offer
Shelf Registration” shall mean the filing of a Secondary Offer
Registration Statement.
“Securities”
shall mean, collectively, the Notes to be issued and sold to the Initial
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture. Each Security is entitled to the benefit
of the guarantees provided by the Guarantors in
the Indenture (each, a “Guarantee”)
and, unless the context otherwise requires, any reference herein to a “Security,”
an “Exchange
Security” or a “Registrable
Security” shall include a reference to the related
Guarantee.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, as the same may be amended
or succeeded from time to time.
“Shelf
Registration” shall have the meaning assigned thereto in
Section 2(b).
“Shelf
Registration Statement” shall have the meaning assigned thereto in
Section 2(b).
“Suspension
Period” shall have the meaning assigned thereto in
Section 2(b).
“Trust Indenture
Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated by the Commission thereunder, as the same may
be amended or succeeded from time to time.
“Trustee”
shall mean The Bank of New York Mellon Trust Company, N.A., as trustee under the
Indenture, together with any successors thereto in such capacity.
Unless
the context otherwise requires, any reference herein to a “Section”
or “clause”
refers to a Section or clause, as the case may be, of this Agreement, and
the words “herein,”
“hereof”
and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to
any particular Section or other subdivision.
2. Registration
Under the Securities Act.
(a) Except as
set forth in Section 2(b) below, the Company and the Guarantors agree to
file under the Securities Act, one or more registration statements relating to
an offer to exchange (such registration statements, together, the “Exchange
Registration Statement,” and such offer, the “Exchange
Offer”) any and all of the Securities for a like aggregate principal
amount of debt securities issued by the Company and guaranteed by the
Guarantors, which debt securities and guarantees are substantially identical to
the Securities and the related Guarantees, respectively (and are entitled to the
benefits of a trust indenture which is substantially identical to the Indenture
or is the Indenture and which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective registration
statement under the Securities Act and do not contain provisions for Additional
Interest contemplated in Section 2(d) below (such new debt securities
hereinafter called “Exchange
Securities”). The Company and the Guarantors agree to use all
commercially reasonable efforts to cause the Exchange Registration Statement to
become effective under the Securities Act no later than 360 days after the Issue
Date. The Exchange Offer will be registered under the Securities Act
on the appropriate form and will comply with all applicable tender offer rules
and regulations under the Exchange Act. Unless the Exchange Offer
would not be permitted by applicable law or Commission policy, the Company and
the Guarantors further agree to use all commercially reasonable efforts to (i)
commence the Exchange Offer promptly following the Effective Time of such
Exchange Registration Statement, (ii) hold the Exchange Offer open for at least
20 Business Days in accordance with Regulation 14E promulgated by the Commission
under the Exchange Act, or longer, if required by the federal securities laws
and (iii) exchange Exchange Securities for all Registrable Securities that have
been properly tendered and not withdrawn promptly following the expiration of
the Exchange Offer. The Exchange Offer will be deemed to have been
“completed” only if: (i) the Exchange Securities and related
guarantees received by holders, other than Restricted Holders, in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America and (ii) upon
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 20 Business Days following the commencement of the
Exchange Offer. The Company agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder of
Exchange Securities that is a broker-dealer and (y) to keep such Exchange
Registration Statement effective for a period (the “Resale
Period”) beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 90th day
after the Exchange Offer has been completed or such time as such broker-dealers
no longer own any Registrable Securities. With respect to such
Exchange Registration Statement, such holders shall have the benefit of the
rights of indemnification and contribution set forth in Subsections 6(a), (e),
(f) and (g).
(b) If (i) on
or prior to the time the Exchange Offer is completed, existing law or Commission
interpretations are changed such that the debt securities or the related
guarantees received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer has not been completed by the earlier of the 60th
Business Day after the Effective Time of the Exchange Registration Statement
relating to the Exchange Offer or the 360th day following the Issue Date (provided, that the Company
and the Guarantors’ failure to complete the Exchange Offer by the deadline set
forth in this Section 2(b)(ii) shall be considered a Registration Default for
which Additional Interest shall be payable pursuant to Section 2(d) hereof until
such time as a Shelf Registration Statement covering resales of the Registrable
Securities has become or is declared effective) or (iii) any holder of
Registrable Securities notifies the Company prior to the 20th
Business Day following the completion of the Exchange Offer that: (A)
it is prohibited by law or Commission policy from participating in the Exchange
Offer, (B) it may not resell the Exchange Securities to the public without
delivering a prospectus and the prospectus supplement contained in the Exchange
Registration Statement is not appropriate or available for such resales or (C)
it is a broker-dealer and owns Securities acquired directly from the Company or
an affiliate of the Company, then the Company and the Guarantors shall, in lieu
of (or, in the case of clause (iii), in addition to) conducting the Exchange
Offer contemplated by Section 2(a), file under the Securities Act no later
than 30 days after the time such obligation to file arises (but no earlier than
360 days after the Issue Date) one or more “shelf” registration statements
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar Rule that may be adopted by the Commission (such filing, the “Shelf
Registration,” and such registration statements, the “Shelf
Registration Statement”). The Company and the Guarantors agree to use all
commercially reasonable efforts to cause the Shelf Registration Statement to
become or be declared effective no later than 90 days after such Shelf
Registration Statement filing obligation arises (but no earlier than 360 days
after the Issue Date); provided that if at any time
the Company is or becomes a “well-known
seasoned issuer” (as defined in Rule 405) and is eligible to file an
“automatic
shelf registration statement” (as defined in Rule 405), then the
Company and the Guarantors shall file the Exchange Registration Statement in the
form of an automatic shelf registration statement as provided in Rule
405. The Company and the Guarantors agree to use all commercially
reasonable efforts to keep such Shelf Registration Statement continuously
effective until the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities
outstanding. No holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus
forming a part thereof for resales of Registrable Securities unless such holder
is an Electing Holder. The Company and the Guarantors agree, after
the Effective Time of the Shelf Registration Statement and promptly upon the
request of any holder of Registrable Securities that is not then an Electing
Holder, to use all commercially reasonable efforts to enable such holder to use
the prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement (whether by
post-effective amendment thereto or by filing a prospectus pursuant to Rules
430B and 424(b) under the Securities Act identifying such holder); provided, however, that
nothing in this sentence shall (A) relieve any such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) or (B) require the Company or the Guarantors
to file more than one post-effective amendment to the Shelf Registration
Statement in any 45-day period. Notwithstanding anything to the
contrary in this Section 2(b), upon notice to the Electing Holders, the
Company may suspend the use or the effectiveness of such Shelf Registration
Statement, or extend the time period in which it is required to file the Shelf
Registration Statement for one or more periods up to 90 days in the
aggregate in any 12-month period (each, a “Suspension
Period”) if the Company delivers a written certificate to the Electing
Holders signed by either the Chief Executive Officer of the Company or the Chief
Financial Officer of the Company, certifying that the Company has determined
that there is a valid business purpose for suspension of the Shelf Registration
Statement; provided, that the Company shall
promptly notify the Electing Holders when the Shelf Registration Statement may
once again be used or is effective.
(c) For the
sole benefit of each Market Maker or any of their affiliates (as defined under
the rules and regulations of the Commission), so long as (x) any of the
Registrable Securities are outstanding and (y) it would be necessary under
applicable laws, rules and regulations, in the reasonable opinion of any Market
Maker, for such Market Maker or any of its affiliates to deliver a prospectus in
connection with market-making activities with respect to the Registrable
Securities or Exchange Securities and such Market Maker or such affiliate
proposes to make a market in the Registrable Securities or Exchange Securities
as part of its business in the ordinary course (the “Market-Making
Conditions”), the following provisions shall apply for the sole benefit
of each Market Maker and its affiliates (it being understood that only a person
for whom the Market-Making Conditions apply at the applicable time shall be
entitled to the use of a Market Making Shelf Registration Statement and related
provisions of this Agreement), the Company shall use all commercially reasonable
efforts to file under the Securities Act, a “shelf” registration statement
(which may be the Exchange Registration Statement or the Shelf Registration
Statement if permitted by the rules and regulations of the Commission) pursuant
to Rule 415 under the Securities Act or any similar rule that may be
adopted by the Commission providing for the registration of, and the sale on a
continuous or delayed basis in secondary transactions by each Market Maker of,
Securities (in the event of a Shelf Registration) or Exchange Securities (in the
event of an Exchange Offer) (such filing, the “Market Making
Shelf Registration,” and such registration statement, the “Market Making
Shelf Registration Statement”). The Company and the Guarantors
agree to use all commercially reasonable efforts to cause the Market Making
Shelf Registration Statement to become or be declared effective on or prior to
(i) the date the Exchange Offer is completed pursuant to Section 2(a) above
or (ii) the date the Shelf Registration becomes or is declared effective
pursuant to Section 2(b) above, and to keep such Market Making Shelf
Registration Statement continuously effective for so long as any Market Maker
may be required to deliver a prospectus in connection with transactions in the
Securities or the Exchange Securities, as the case may be. In the
event that a Market Maker holds Securities at the time an Exchange Offer is to
be conducted under Section 2(a) above, the Company and the Guarantors agree
that the Market Making Shelf Registration shall provide for the resale by such
Market Maker of such Securities and shall use its commercially reasonable
efforts to keep the Market Making Shelf Registration Statement continuously
effective until such time as such Market Maker determines in its reasonable
judgment that it is no longer required to deliver a prospectus in connection
with the sale of such Securities.
Notwithstanding
anything to the contrary in this Section 2(c), upon at least 10 Business
Days prior written notice to each Market Maker, the Company may elect to cause
the Market Making Registration Statement to provide for the registration of, and
the sale on a continuous or delayed basis in secondary transactions by any
Affiliate Investor of Securities (in the event of a Shelf Registration) or
Exchange Securities (in the event of an Exchange Offer) regardless of whether
such Affiliate Investor otherwise would qualify as an Electing Holder eligible
to participate in a Shelf Registration Statement in accordance with
Section 2(b) hereof; provided however, if any
Market Maker requests in writing at any time that the Company exclude any or all
Affiliate Investors from the Market Making Registration Statement, then the
Company shall either omit such Affiliate Investors from inclusion in the Market
Making Registration Statement or promptly amend the Market Making Registration
Statement to exclude them from the Market Making Registration
Statement. The inclusion of any Affiliate Investor in the Market
Making Registration Statement shall not affect the rights of any Market Maker to
make any determinations otherwise provided exclusively to each
Market Maker in this Agreement.
Notwithstanding
the foregoing, the Company may suspend the offering and sale under the Market
Making Shelf Registration Statement for one or more Suspension Periods if the
Company delivers a written certificate to the Market Makers signed by either the
Chief Executive Officer of the Company or the Chief Financial Officer of the
Company, certifying that the Company has determined that (i) such registration
would require (A) disclosure of an event at such time as could reasonably be
expected to have a material adverse effect on the business operations or
prospects of the Company or (B) disclosure of material information relating to a
corporate development or (ii) such Market-Making Registration Statement or
amendment or supplement thereto contains an untrue statement of 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 Company shall
promptly notify each Market Maker when the Market Making Shelf Registration
Statement may once again be used.
(d) In the
event that (i) the Company and the Guarantors have not filed the Exchange
Registration Statement or the Shelf Registration Statement on or before the date
on which such registration statement is required to be filed pursuant to
Section 2(a) or Section 2(b), as applicable, or (ii) such
Exchange Registration Statement or Shelf Registration Statement has not become
effective or been declared effective by the Commission on or before the date on
which such registration statement is required to become or be declared effective
pursuant to Section 2(a) or Section 2(b), as applicable, or (iii) the
Exchange Offer has not been completed by the earlier of the 60th
Business Day after the Effective Time of the Exchange Registration Statement
relating to the Exchange Offer or the 360th day following the Issue Date (if the
Exchange Offer is then required to be made) or (iv) any Exchange Registration
Statement or Shelf Registration Statement required by Section 2(a) or
Section 2(b) is filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein, including with respect to any Shelf Registration Statement, during any
applicable Suspension Period in accordance with the last sentence of Section
2(b)) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a “Registration
Default” and each period during which a Registration Default has occurred
and is continuing, a “Registration
Default Period”), then, as liquidated damages for such Registration
Default, subject to the provisions of Section 9(b), additional interest
(“Additional
Interest”), in addition to the Base Interest, shall accrue on the
outstanding principal amount of the Registrable Securities at a per annum rate
of 0.25% for the first 90 days of the Registration Default Period and at a per
annum rate of 0.50% thereafter for the remaining portion of the Registration
Default Period. Additional Interest shall accrue and be payable only
with respect to a single Registration Default at any given time, notwithstanding
the fact that multiple Registration Defaults may exist at such
time. The accrual of Additional Interest shall be the exclusive
monetary remedy available to the holders of Registrable Securities for any
Registration Default.
(e) The
Company shall take, and shall cause the Guarantors to take, all actions
necessary or advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated, including all actions
necessary or desirable to register the Guarantees under the registration
statement contemplated in Section 2(a), Section 2(b) or
Section 2(c), as applicable.
(f) Any
reference herein to a registration statement as of any time shall be deemed to
include any document incorporated, or deemed to be incorporated, therein by
reference as of such time and any reference herein to any post-effective
amendment to a registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by reference as
of such time.
3. Registration
Procedures.
If the
Company and the Guarantors file a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(c) the following
provisions shall apply:
(a) At or
before the Effective Time of the Exchange Registration, the Shelf Registration
or the Market Making Registration, whichever may be first, the Company shall
qualify the Indenture under the Trust Indenture Act.
(b) In the
event that such qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder pursuant
to the applicable provisions of the Indenture.
(c) In
connection with the Company’s and the Guarantors’ obligations with respect to
the registration of Exchange Securities as contemplated by Section 2(a)
(the “Exchange
Registration”), if applicable, the Company and the Guarantors
shall:
(i) prepare
and file with the Commission an Exchange Registration Statement on any form
which may be utilized by the Company and the Guarantors and which shall permit
the Exchange Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a), and use
all commercially reasonable efforts to cause such Exchange Registration
Statement to become effective no later than 360 days after the Issue
Date;
(ii) promptly
prepare and file with the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange Registration
Statement for the periods and purposes contemplated in Section 2(a) and as
may be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Exchange Registration Statement,
and promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the requirements of
the Securities Act and the Trust Indenture Act, as such broker-dealer reasonably
may request prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii) promptly
notify each broker-dealer that has requested or received copies of the
prospectus included in such Exchange Registration Statement, and confirm such
advice in writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information relating to
such Exchange Registration Statement or prospectus, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (F) the occurrence of any event that causes the Company to become
an “ineligible issuer”
as defined in Rule 405, or (G) if at any time during the Resale Period when
a prospectus is required to be delivered under the Securities Act, that such
Exchange Registration Statement, prospectus, prospectus amendment or supplement
or post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act or
contains 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 light of the circumstances then existing;
(iv) in the
event that the Company and the Guarantors would be required, pursuant to
Section 3(c)(iii)(G), to notify any broker-dealers holding Exchange
Securities (except as otherwise permitted during any Suspension Period),
promptly prepare and furnish to each such holder a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such prospectus
shall conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(v) use all
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use all
commercially reasonable efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, to the extent required by such laws, (B) keep such registrations
or qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions until
the expiration of the Resale Period, (C) take any and all other actions as may
be reasonably necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such jurisdictions
and (D) obtain the consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period; provided, however, that
neither the Company nor the Guarantors shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or other governing
documents or any agreement between it and its stockholders;
(vii) provide a
CUSIP number for all Exchange Securities, not later than the applicable
Effective Time; and
(viii) comply
with all applicable rules and regulations of the Commission, and make generally
available to its securityholders no later than eighteen months after the
Effective Time of such Exchange Registration Statement, an earnings statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder); provided,
however, that this
requirement shall be deemed satisfied by the Company’s compliance with
Section 4.03 of the Indenture.
(d) In
connection with the Company’s and the Guarantors’ obligations with respect to
any Secondary Offer Shelf Registration, if applicable, the Company and the
Guarantors shall use all commercially reasonable efforts to cause the applicable
Secondary Offer Registration Statement to permit the disposition of Registrable
Securities by the holders thereof, in the case of the Shelf Registration, and of
Securities or Exchange Securities by any Market Maker and any Affiliate
Investor, in the case of a Market Making Shelf Registration (in each case,
subject to any applicable Suspension Period), in accordance with the intended
method or methods of disposition thereof provided for in the applicable
Secondary Offer Registration Statement. In connection therewith, the
Company and the Guarantors shall:
(i) (A)
prepare and file with the Commission, within the time periods specified in
Section 2(b) and Section 2(c) hereof, as applicable, a Secondary Offer
Registration Statement on any form which may be utilized by the Company and the
Guarantors, which shall (x) register all of the Registrable Securities, in the
case of a Shelf Registration, and the Securities and Exchange Securities, in the
case of a Market Making Shelf Registration, for resale by the holders thereof in
accordance with such method or methods of disposition as may be specified by the
holders of the Registrable Securities as, from time to time, may be Electing
Holders, in the case of a Shelf Registration, or any Market Maker and any
Affiliate Investor, in the case of a Market Making Shelf Registration, and (y)
be, in the case of a Market Making Shelf Registration, in the form approved by
each Market Maker, and (B) use all commercially reasonable efforts to cause each
such Secondary Offer Registration Statement to become effective within the time
periods specified in Section 2(b) and Section 2(c) hereof, as
applicable;
(ii) mail the
Notice and Questionnaire to the holders of Registrable Securities (A) not less
than 30 days prior to the anticipated Effective Time of the Shelf Registration
Statement or (B) in the case of an “automatic shelf registration statement” (as
defined in Rule 405), mail the Notice and Questionnaire to the holders of
Registrable Securities not later than the Effective Time of such Shelf
Registration Statement, and in any such case no holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement, and no
holder shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless and until such holder has
returned a completed and signed Notice and Questionnaire to the Company; in the
case of any Affiliate Investor that desires to participate in any Market Making
Shelf Registration, such Affiliate Investor shall have returned a completed and
signed Notice and Questionnaire to the Company prior to the time that the
Company notifies each Market Maker of its intention to include such Affiliate
Investor in the Market Making Shelf Registration, and the responses by the
Affiliate Investor in such Notice and Questionnaire shall be reasonably
satisfactory to each of the Company and each Market Maker; provided, however, that
holders of Registrable Securities (in the case of a Shelf Registration
Statement) or any Affiliate Investor (in the case of a Market Making Shelf
Registration) shall have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holder or provided to such Affiliate
Investor to return a completed and signed Notice and Questionnaire to the
Company;
(iii) after the
Effective Time of the Shelf Registration Statement, upon the request of any
holder of Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder; provided that the Company
shall not be required to (A) take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such holder to
use the prospectus forming a part thereof for resales of Registrable Securities
until such holder has returned a completed and signed Notice and Questionnaire
to the Company and (B) nothing in this clause (iii) shall require the Company or
the Guarantors to file a post-effective amendment to the Shelf Registration
Statement more than once in any 45-day period; provided, however, that this
clause (B) shall not be applicable for the last 60 days that the Shelf
Registration Statement is effective;
(iv) as soon
as practicable (A) prepare and file with the Commission such amendments and
supplements to the Secondary Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness of
such Secondary Offer Registration Statement for the period specified in
Section 2(b) and Section 2(c) hereof, as applicable, and as may be
required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Secondary Offer Registration
Statement and, in the case of an amendment to or supplement of the Market Making
Shelf Registration Statement, each in a form approved by each Market Maker, and
(B) furnish to the Electing Holders, in the case of a Shelf Registration, and
each Market Maker and any Affiliate Investor, in the case of a Market Making
Shelf Registration, copies of any such supplement or amendment simultaneously
with or prior to its being used or filed with the Commission to the extent such
documents are not publicly available on the Commission’s EDGAR
System;
(v) comply
with the provisions of the Securities Act with respect to the disposition of all
of the Registrable Securities, Securities or Exchange Securities, as applicable,
covered by such Secondary Offer Registration Statement in accordance with the
intended methods of disposition provided for therein by the
Electing Holders, in the case of a Shelf Registration, or any Market Maker and
any Affiliate Investor, in the case of a Market Making Shelf
Registration;
(vi) provide
(A) with respect to a Shelf Registration, a representative of the Electing
Holders and not more than one counsel for all the Electing Holders in each case
designated by the holders of at least a majority in aggregate principal amount
of the Registrable Securities held by the Electing Holders (which counsel shall
be reasonably satisfactory to the Company), and (B) with respect to a Market
Making Shelf Registration, each Market Maker and one counsel for all Market
Makers and any Affiliate Investor, the opportunity to participate in the
preparation of such Secondary Offer Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or supplement
thereto;
(vii) for a
reasonable period prior to the filing of such Secondary Offer Registration
Statement, and throughout the periods specified in Section 2(b) or
Section 2(c) hereof, as applicable, make available at reasonable times at
the Company’s principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(vi) who shall certify
to the Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration, or the Securities or Exchange
Securities pursuant to the Market Making Shelf Registration, as applicable, such
financial and other information and books and records of the Company, and cause
the officers, employees, counsel and independent certified public accountants of
the Company to respond to such inquiries, as shall be reasonably necessary (and
in the case of counsel, not violate an attorney-client privilege, in such
counsel’s reasonable belief), in the judgment of the respective counsel referred
to in Section 3(d)(vi), to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering on behalf of the Electing Holders
shall be conducted by one counsel designated by the holders of at least a
majority in aggregate principal amount of the Registrable Securities held by the
Electing Holders at the time outstanding and any managing underwriter
participating in the distribution of the Registrable Securities being sold; and
provided further 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 as being confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such Secondary
Offer Registration Statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter (subject
to the requirements of such order, and only after such person shall have given
the Company prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Secondary Offer Registration
Statement or the prospectus included therein or in an amendment to such
Secondary Offer Registration Statement or an amendment or supplement to such
prospectus in order that such Secondary Offer Registration Statement,
prospectus, amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules and
regulations of the Commission and 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 in light of
the circumstances then existing;
(viii) promptly
notify each of the Electing Holders, any managing underwriter, each Market Maker
or each of the Affiliate Investors, as applicable, and confirm such advice in
writing, (A) when such Secondary Offer Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Secondary Offer Registration
Statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto which are relevant
to the Electing Holders, any managing underwriter, any Market Maker or an
Affiliate Investor, as applicable, or any request by the Commission for
amendments or supplements to such Secondary Offer Registration Statement or
prospectus or for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Secondary Offer
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and warranties of the
Company set forth in Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities or the
Securities or Exchange Securities, as applicable, for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, (F) the
occurrence of any event that causes the Company to become an “ineligible issuer”
as defined in Rule 405, or (G) if at any time when a prospectus is required
to be delivered under the Securities Act, that such Secondary Offer Registration
Statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act or contains 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 light of the circumstances then existing;
(ix) use all
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of such Secondary Offer Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(x) if
requested by any managing underwriter, Electing Holder, any Market Maker or any
Affiliate Investor, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing underwriter, Electing
Holder, such Market Maker or such Affiliate Investor specifies should be
included therein relating to the terms of the sale of such Registrable
Securities or such Securities or Exchange Securities, as applicable, including
information with respect to the principal amount of Registrable Securities or
Securities or Exchange Securities, as applicable, being sold by such Electing
Holder, managing underwriter, such Market Maker or any Affiliate Investor, the
name and description of such managing underwriter, Electing Holder, such Market
Maker or any Affiliate Investor, the offering price of such Registrable
Securities or such Securities or Exchange Securities, as applicable, and any
discount, commission or other compensation payable in respect thereof and with
respect to any other terms of the offering of the Registrable Securities or the
Securities or Exchange Securities, as applicable, to be sold by such Electing
Holder, managing underwriter, such Market Maker or any Affiliate Investor; and
make all required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish
upon request to each managing underwriter, each Market Maker and each Electing
Holder and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder or Affiliate Investor, a
conformed copy) of such Secondary Offer Registration Statement, each such
amendment and supplement thereto (in each case including all exhibits thereto
(in the case of an Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number of copies of such
Secondary Offer Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such
Market Maker, managing underwriter, Electing Holder or Affiliate Investor) and
of the prospectus included in such Secondary Offer Registration Statement
(including each preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act to the extent such documents are not
available through the Commission’s EDGAR System, and such other documents, as
such Market Maker, such managing underwriter or Electing Holder or Affiliate
Investor may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such Electing Holder or
underwritten by such managing underwriter, the Securities or Exchange Securities
owned by such Market Maker or such Affiliate Investor, as applicable, and to
permit such Electing Holder and managing underwriter, if any, and Affiliate
Investor to satisfy the prospectus delivery requirements of the Securities Act;
and subject to Section 3(e), the Company and the Guarantors hereby consent
to the use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each such Market
Maker, Electing Holder, managing underwriter, and Affiliate Investor
(in each case subject to any applicable Suspension Period), in each case in the
form most recently provided to such person by the
Company, in connection with the offering and sale of the Registrable Securities,
Securities or Exchange Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use all
commercially reasonable efforts to (A) register or qualify the Registrable
Securities to be included in such Secondary Offer Registration Statement under
such securities laws or blue sky laws of such jurisdictions as any Electing
Holder, managing underwriter, Market Maker or Affiliate Investor shall
reasonably request, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf Registration
is required to remain effective under Section 2(b) or the period the Market
Making Shelf Registration is required to remain effective under
Section 2(c), as applicable, and for so long as may be necessary to enable
any such Market Maker, Electing Holder, underwriter or Affiliate Investor to
complete its distribution of Registrable Securities pursuant to such Secondary
Offer Registration Statement, (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing Holder, Affiliate
Investor and Market Maker, as applicable, to consummate the disposition in such
jurisdictions of such Registrable Securities, and (D) obtain the consent or
approval of each governmental agency or authority, whether federal, state or
local, which may be required to effect such Secondary Offer Registration
Statement or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition of, their
Registrable Securities; provided, however, that
neither the Company nor the Guarantors shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or other governing
documents or any agreement between it and its stockholders;
(xiii) unless
any Registrable Securities shall be in book-entry only form, cooperate with the
Electing Holders, managing underwriters and each Market Maker to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities, to be sold, which certificates, if so required by any securities
exchange upon which any Registrable Securities are listed, shall be printed,
penned, lithographed, engraved or otherwise produced by any combination of such
methods, on steel engraved borders, and which certificates shall not bear any
restrictive legends;
(xiv) provide a
CUSIP number for all Registrable Securities, Securities or Exchange Securities,
as applicable, not later than the applicable Effective Time;
(xv) notify in
writing each holder of Registrable Securities and each Market Maker of any
proposal by the Company to amend or waive any provision of this Agreement
pursuant to Section 9(h) and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xvi) comply
with all applicable rules and regulations of the Commission, and make generally
available to its securityholders no later than eighteen months after the
Effective Time of such Secondary Offer Registration Statement an earnings
statement of the Company and its subsidiaries complying with Section 11(a)
of the Securities Act (including, at the option of the Company, Rule 158
thereunder); provided,
however, that this requirement shall be deemed satisfied by the Company’s
compliance with Section 4.03 of the Indenture; and
(xvii) for so
long as any Market Maker may be required to deliver a prospectus in connection
with the offer and sale of Securities or Exchange Securities in secondary
transactions, to furnish to each Market Maker copies of all reports or other
communications (financial or other) furnished to stockholders of the Company,
and deliver to each Market Maker (i) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange or interdealer automated quotation system on
which the Securities or Exchange Securities or any other securities of the
Company are listed or quoted and (ii) such additional information
concerning the business and financial condition of the Company and its
subsidiaries as any Market Maker may from time to time reasonably
request.
(e) In the
event that the Company would be required, pursuant to
Section 3(d)(viii)(G), to notify the Electing Holders, managing
underwriters, the Market Makers or Affiliate Investors, the Company shall
promptly prepare and furnish to each Electing Holder, managing underwriter,
Market Maker and Affiliate Investor a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, Securities or Exchange Securities, as
applicable, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing. Each Electing Holder, managing underwriter, Market Maker
and Affiliate Investor agrees that upon receipt of any notice from the Company
pursuant to Section 3(d)(viii)(G), such Electing Holder, managing
underwriter, Market Maker and Affiliate Investor shall forthwith discontinue the
disposition of Registrable Securities, Securities or Exchange Securities, as
applicable, pursuant to the Secondary Offer Registration Statement applicable to
such Registrable Securities, Securities or Exchange Securities until such
Electing Holder, managing underwriter, Market Maker or Affiliate Investor shall
have received copies of such amended or supplemented prospectus, and if so
directed by the Company, such Electing Holder, managing underwriter, Market
Maker or Affiliate Investor shall deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Electing
Holder’s, managing underwriter’s, Market Maker’s or Affiliate Investor’s
possession of the prospectus covering such Registrable Securities, Securities or
Exchange Securities, as applicable, at the time of receipt of such
notice.
(f) In the
event of a Shelf Registration, in addition to the information required to be
provided by each
Electing Holder in its Notice and Questionnaire as to which any Shelf
Registration pursuant to Section 2(b) is being effected or to be
provided by each
Market Maker and each Affiliate Investor in connection with the Market Making
Shelf Registration pursuant to Section 2(c), the Company may require such
Electing Holder, Market Maker or an Affiliate Investor, as applicable, to
furnish to the Company such additional information regarding such Electing
Holder, Market Maker or Affiliate Investor, and such Electing Holder’s, Market
Maker’s or Affiliate Investor’s, intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities
Act. Each such Electing Holder, Market Maker and Affiliate Investor
agrees to notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Electing Holder, Market
Maker or Affiliate Investor, to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such Shelf
Registration or Market Making Shelf Registration, as applicable, contains or
would contain an untrue statement of a material fact regarding such Electing
Holder, Market Maker or Affiliate Investor, or such Electing Holder’s, Market
Maker’s or Affiliate Investor’s intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such
Electing Holder, Market Maker or an Affiliate Investor, or such Electing
Holder’s intended method of disposition of such Registrable Securities,
Securities or Exchange Securities, as applicable, required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing, 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 Electing Holder, Market Maker or Affiliate Investor, or the disposition
of such Registrable Securities, Securities, or Exchange Securities, as
applicable, 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 light of the circumstances then existing.
(g) Until the
issuance of the Exchange Securities or the effectiveness of the Shelf Registration
Statement, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144) controlled by the Issuer to, resell any of the Notes which
constitute “restricted securities” under Rule 144 that have been reacquired by
any of them.
(h) As a
condition to its participation in the Exchange Offer, each holder of Registrable
Securities shall furnish, upon the request of the Company, a written
representation to the Company (which may be contained in the letter of
transmittal or “agent’s message” transmitted via The Depository Trust Company’s
Automated Tender Offer Procedures, in either case contemplated by the Exchange
Registration Statement) to the effect that (A) it is not an “affiliate” of the
Company, as defined in Rule 405 of the Securities Act, or if it is such an
“affiliate,” it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (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 Exchange
Securities to be issued in the Exchange Offer, (C) it is acquiring the Exchange
Securities in its ordinary course of business, (D) if it is a broker-dealer that
holds Securities that were acquired for its own account as a result of
market-making activities or other trading activities (other than Securities
acquired directly from the Company or any of its affiliates), it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Securities received by it in the Exchange Offer, (E) if
it is a broker-dealer, that it did not purchase the Securities to be exchanged
in the Exchange Offer from the Company or any of its affiliates, and (F) it is
not acting on behalf of any person who could not truthfully and completely make
the representations contained in the foregoing subclauses (A) through
(E).
(i) Notwithstanding
anything to the contrary contained herein, the Company may for valid business
reasons, including without limitation, a potential acquisition, divestiture of
assets or other material corporate transaction, issue a notice that a Market
Making Registration Statement is no longer effective or the prospectus included
therein is no longer usable for offers and sales of Securities or Exchange
Securities, as applicable, and may issue any notice suspending use of such
Market-Making Registration Statement required under applicable securities laws
to be issued for so long as valid business reasons exist and the Company shall
not be obligated to amend or supplement such Market-Making Registration
Statement or the prospectus included therein until it reasonably deems
appropriate. Each Market Maker agrees that upon receipt of any notice
from the Company pursuant to this Section 3(i), it will discontinue use of
each Market Making Registration Statement until receipt of copies of the
supplemented or amended prospectus relating thereto until advised in writing by
the Company that the use of a Market-Making Registration Statement may be
resumed.
4. Registration
Expenses.
The
Company and the Guarantors, jointly and severally, agree to bear and to pay or
cause to be paid promptly all expenses incident to the Company’s and the
Guarantors’ performance of or compliance with this Agreement, including (a) all
Commission and any Financial Industry Regulatory Authority registration, filing
and review fees and expenses including reasonable fees and disbursements of
counsel for the Electing Holders, Market Makers, underwriters and Affiliate
Investors in connection with such registration, filing and review, (b) all fees
and expenses in connection with the qualification of the Registrable Securities,
Securities or Exchange Securities, as applicable, for offering and sale under
the state securities and blue sky laws referred to in Section 3(d)(xii) and
determination of their eligibility for investment under the laws of such
jurisdictions as the Electing Holders, any underwriters, Market Makers or
Affiliate Investors may designate, including any reasonable fees and
disbursements of counsel for the Electing Holders, any underwriters, Market
Makers or Affiliate Investors in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Registrable Securities or Exchange Securities, as
applicable, for delivery and the expenses of printing or producing any selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Registrable Securities,
Securities or Exchange Securities, as applicable, to be disposed of (including
certificates representing the Registrable Securities or Exchange Securities, as
applicable), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Registrable Securities or Exchange Securities, as
applicable, and the preparation of documents referred in clause (c) above, (e)
fees and expenses of the Trustee under the Indenture, any agent of the Trustee
and any counsel for the Trustee and of any custodian, (f) the Company’s internal
expenses (including all salaries and expenses of the Company’s officers and
employees performing legal or accounting duties), (g) reasonable fees,
disbursements and expenses of counsel and independent certified public
accountants of the Company, (h) reasonable fees, disbursements and expenses of
one counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), one
counsel for the Market Makers retained in connection with a Market Making Shelf
Registration, as selected by the Market Makers, and one counsel for the
Affiliate Investors retained in connection with a Market Making Shelf
Registration, as selected by the Affiliate Investors of at least a majority in
aggregate principal amount of the Registrable Securities held by such Affiliate
Investors, (i) any fees charged by securities rating services for rating the
Registrable Securities or Exchange Securities, as applicable, and (j) fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company in connection with such registration (collectively, the
“Registration
Expenses”). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities, any Market
Maker or Affiliate Investor, the Company and the Guarantors shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor. Notwithstanding
the foregoing, the holders of the Registrable Securities being registered, or
any Market Maker or any Affiliate Investor, as applicable, shall pay all
placement or agency fees and commissions and underwriting discounts and
commissions, if any, and transfer taxes, if any, attributable to the sale of
such Registrable Securities or Exchange Securities, as applicable, and the fees
and disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.
5. Representations and
Warranties.
The
Company and each of the Guarantors, jointly and severally, represent and warrant
to, and agree with, each Market Maker that:
(a) Each
registration statement covering Registrable Securities, Securities or Exchange
Securities, as applicable, and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to Section 3(c)
or Section 3(d) and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and at all times subsequent to the Effective Time when a prospectus
would be required to be delivered under the Securities Act, other than (A) from
(i) such time as a notice has been given to holders of Registrable Securities or
Market Makers or Affiliate Investors, as applicable, pursuant to
Section 3(c)(iii)(G) or Section 3(d)(viii)(G) until (ii) such time as
the Company furnishes an amended or supplemented prospectus pursuant to
Section 3(c)(iv) or Section 3(e) or (B) during any applicable
Suspension Period, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(d), as then amended or supplemented, will
conform in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable Securities, any
Market Maker or an Affiliate Investor, as applicable, expressly for use therein,
which information, with respect to information provided by any Market Maker for
inclusion in the prospectus forming a part of the Market Making Registration
Statement the parties hereto agree will be limited to the statements concerning
the market-making activities of the Market Makers to be set forth on the cover
page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus.
(b) Any
documents incorporated by reference in any prospectus referred to in
Section 5(a), when they become or became effective or are or were filed
with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however,
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by a holder of Registrable Securities, any Market
Maker or an Affiliate Investor, as applicable, expressly for use therein, which
information, with respect to information provided by the Market Maker for
inclusion in the prospectus forming a part of the Market Making Registration
Statement the parties hereto agree will be limited to the statements concerning
the market-making activities of the Market Makers to be set forth on the cover
page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus.
(c) The
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not (i) conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the
certificate of incorporation, as amended, or the by-laws or other governing
documents, as applicable, of the Company or any of the Guarantors or (iii)
result in any violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties, except in the
case of (i) and (iii) above, for such conflicts, breaches or defaults as would
not reasonably be expected to result in a material adverse effect on the
business, properties, condition (financial or otherwise), results of operations
or prospects of the Company and its subsidiaries, taken as a whole (a “Material Adverse
Effect”); and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company and the Guarantors of the
transactions contemplated by this Agreement, except (w) the registration under
the Securities Act of the Registrable Securities, Securities or Exchange
Securities, as applicable, and qualification of the Indenture under the Trust
Indenture Act, (x) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or blue sky laws in
connection with the offering and distribution of the Registrable Securities,
Securities or Exchange Securities, as applicable, (y) such consents, approvals,
authorizations, registrations or qualifications that have been obtained and are
in full force and effect as of the date hereof and (z) such consents, approvals,
authorizations, registrations or qualifications that the failure to have would
not reasonably be expected to have a Material Adverse Effect.
This
Agreement has been duly authorized, executed and delivered by the Company and
each Guarantor.
6. Indemnification
and Contribution.
(a) Indemnification by the Company and
the Guarantors. The Company and the Guarantors, jointly and
severally, will indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration Statement,
each of the Market Makers as holders of Registrable Securities or Exchange
Securities included in a Market Making Shelf Registration Statement and each of
the Affiliate Investors as holders of Registrable Securities or Exchange
Securities included in a Market Making Shelf Registration Statement against any
losses, claims, damages or liabilities, joint or several, to which such holder,
such Market Maker, such Electing Holder or Affiliate Investor may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Secondary Offer Registration Statement, as
the case may be, under which such series of Registrable Securities or Exchange
Securities, as applicable, were registered under the Securities Act, or any
preliminary, final or summary prospectus (including, without limitation, any
“issuer free writing prospectus” as defined in Rule 433) contained therein
or furnished by the Company to any such holder, such Market Maker, such Electing
Holder or Affiliate Investor or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse any such holder, such Market Maker,
such Electing Holder and such Affiliate Investor for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that
neither the Company nor the Guarantors shall be liable to any such person in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus (including, without limitation, any
“issuer free writing prospectus” as defined in Rule 433), or amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by such person expressly for use therein, which
information, with respect to information provided by any Market Makers
for inclusion in the prospectus forming a part of the Market Making Registration
Statement the parties hereto agree will be limited to the statements concerning
the market-making activities of the Market Makers to be set forth on the cover
page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus.
(b) Indemnification by the
Holders. Each holder of Registrable Securities, severally and
not jointly, will (i) indemnify and hold harmless the Company, the Guarantors,
and all other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company, the Guarantors or such other
holders of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus (including, without
limitation, any “issuer free writing prospectus” as defined in Rule 433)
contained therein or furnished by the Company to any such Electing Holder, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Electing Holder expressly for use therein, and (ii) reimburse the Company and
the Guarantors for any legal or other expenses reasonably incurred by the
Company and the Guarantors in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that no
such Electing Holder shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the dollar amount of
the proceeds to be received by such Electing Holder from the sale of such
Electing Holder’s Registrable Securities pursuant to such
registration.
(c) Indemnification by the Market
Makers. The Company may require, as a condition to including
any Securities or Exchange Securities in the Market Making Shelf Registration
Statement filed pursuant to Section 2(c) hereof and to entering into any
underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from each underwriter
named in any such underwriting agreement, severally and not jointly, to, and
each Market Maker shall, and hereby agrees to, (i) indemnify and hold harmless
the Company and the Guarantors against any losses, claims, damages or
liabilities to which the Company or the Guarantors may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Market Making Shelf Registration Statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to the Market Makers or
to any such underwriter, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Market Maker or such underwriter expressly for use therein,
which information, with respect to information provided by any Market Maker for
inclusion in the prospectus forming a part of the Market Making Registration
Statement the parties hereto agree will be limited to the statements concerning
the market-making activities of the Market Makers to be set forth on the cover
page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus and (ii)
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that, in
the case of Securities held by any Market Maker at the time of the Exchange
Offer, no Market Maker shall be required to undertake liability to any person
under this Section 6(c) for any amounts in excess of the dollar amount of
the proceeds to be received by such Market Maker from the sale of such
Securities by such Market Maker pursuant to the Market Making Shelf
Registration.
(d) Indemnification by Affiliate
Investors in Connection with the Market Making Shelf
Registration. The Company may require, as a condition to
including any Securities or Exchange Securities in the Market Making Shelf
Registration Statement filed pursuant to Section 2(d) hereof and to
entering into any underwriting agreement with respect thereto, that the Company
shall have received an undertaking reasonably satisfactory to it from each
underwriter named in any such underwriting agreement, severally and not jointly,
to, and each Affiliate Investor shall, and hereby agrees to, (i) indemnify and
hold harmless the Company and the Guarantors against any losses, claims, damages
or liabilities to which the Company or the Guarantors may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Market Making Shelf Registration Statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to such Affiliate
Investor or to any such underwriter, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Affiliate Investor or such
underwriter expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however,
that, in the case of Securities held by any Market Maker at the time of
the Exchange Offer, no Market Maker shall be required to undertake liability to
any person under this Section 6(d) for any amounts in excess of the dollar
amount of the proceeds to be received by such Market Maker from the sale of such
Securities by such Market Maker pursuant to the Market Making Shelf
Registration.
(e) Notices of Claims,
Etc. Promptly after receipt by an indemnified party under
subsection (a), (b), (c) or (d) above of written notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party pursuant to the indemnification provisions
of or contemplated by this Section 6, notify such indemnifying party in
writing of the commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under the indemnification provisions of or
contemplated by Section 6(a), 6(b), 6(c) or 6(d). In case any
such action shall be brought against any indemnified party and it shall notify
an indemnifying party of the commencement thereof, such indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. An indemnifying party will not, without
the prior written consent of the indemnified parties, 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 (with respect to which the indemnified
parties (i) are actual parties, or (ii) would reasonably be expected to become
parties, to such claim, action, suit or proceeding) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding
and does not include any statement as to or any admission of fault, culpability
or failure to act, by or on behalf of any indemnified party.
(f) Contribution. If
for any reason the indemnification provisions contemplated by Section 6(a),
6(b), 6(c) or 6(d) are unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, 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 such indemnifying party or by such indemnified party, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 6(f) were 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 account of the equitable considerations referred
to in this Section 6(f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or liabilities (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6(f), none
of any holder, Affiliate Investor or, in the case of a Market Making Shelf
Registration relating to the sale by any Market Maker of Securities held by it
at the time of the Exchange Offer, such Market Maker, shall be required to
contribute any amount in excess of the amount by which the dollar amount of the
proceeds received by such holder from the sale of any Registrable Securities or
such Market Maker or any Affiliate Investor from the sale of any such Securities
(after deducting any fees, discounts and commissions applicable thereto) exceeds
the amount of any damages which such holder or such Market Maker or such
Affiliate Investor, as applicable, have otherwise been required to pay by reason
of such 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’, Market Maker’s and any Affiliate
Investor’s obligations in this Section 6(f) to contribute shall be several
in proportion to the principal amount of Registrable Securities registered by
them and not joint.
(g) The
obligations of the Company and the Guarantors under this Section 6 shall be
in addition to any liability which the Company or the Guarantors may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
director and partner of each Market Maker, each holder, Electing Holder,
Affiliate Investor, and each person, if any, who controls any Market Maker, any
holder, Electing Holder or Affiliate Investor within the meaning of the
Securities Act; and the obligations of the Market Makers, the holders, the
Electing Holders, the Affiliate Investors contemplated by this Section 6
shall be in addition to any liability which the Market Makers, the respective
holder or Affiliate Investor may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director1 of the Company or any of the Guarantors
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company or any of the Guarantors)
and to each person, if any, who controls the Company within the meaning of the
Securities Act.
7. Underwritten
Offerings.
Each
holder of Registrable Securities hereby agrees with the Company and each other
such holder that no holder of Registrable Securities may participate in any
underwritten offering hereunder unless (a) the Company gives its prior written
consent to such underwritten offering, (b) the managing underwriter or
underwriters thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to be
included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company, (c) each holder of Registrable Securities participating in such
underwritten offering agrees to sell such holder’s Registrable Securities on the
basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (d) each holder of Registrable Securities
participating in such underwritten offering completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Rule 144.
The
Company covenants to the holders of Registrable Securities, the Market Makers or
any Affiliate Investor that to the extent it shall be required to do so under
the Exchange Act, the Company shall timely file the reports required to be filed
by it under the Exchange Act or the Securities Act (including the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144), and shall take such further action as any holder of Registrable
Securities, any Market Maker or any Affiliate Investor may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities or any Market Maker or any Affiliate Investor to sell
Securities or Exchange Securities without registration under the Securities Act
within the limitations of the exemption provided by
Rule 144. Upon the request of any holder of Registrable
Securities, any Market Maker or any Affiliate Investor in connection with that
holder’s, that Market Maker’s or that Affiliate Investor’s sale pursuant to
Rule 144, the Company shall deliver to such holder, such Market Maker or
such Affiliate Investor a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements.
The Company and the Guarantors represent, warrant, covenant and agree that they
have not granted, and shall not grant, registration rights with respect to
Registrable Securities, Securities or Exchange Securities, as applicable, or any
other securities which would be inconsistent with the terms contained in this
Agreement.
(b) Specific
Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company or any of the Guarantors fails to
perform any of their respective obligations hereunder and that the Initial
Purchasers and the holders from time to time of the Registrable Securities may
be irreparably harmed by any such failure, and accordingly agree that the
Initial Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of the Company and the Guarantors under this
Agreement in accordance with the terms and conditions of this Agreement, in any
court of the United States or any State thereof having
jurisdiction. Time shall be of the essence in this
Agreement.
(c) Notices. All notices,
requests, claims, demands, waivers and other communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered by hand,
if delivered personally, by facsimile or by courier, or three days after being
deposited in the mail (registered or certified mail, postage prepaid, return
receipt requested) as follows: If to the Company, to it at Energy
Plaza, 1601 Bryan Street, Dallas, Texas 75201-3411, Attention: General Counsel
and if to a holder, to the address of such holder set forth in the security
register or other records of the Company, or to such other address as the
Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in
Interest. All the terms and provisions of this Agreement shall
be binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and such
holders. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a beneficiary hereof for
all purposes and such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable terms
and provisions of this Agreement. If the Company shall so request,
any such successor, assign or transferee shall agree in writing to acquire and
hold the Registrable Securities subject to all of the applicable terms
hereof.
(e) Survival. The
respective indemnities, agreements, representations, warranties and each other
provision set forth in this Agreement or made pursuant hereto shall remain in
full force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf any Market Maker, any Affiliate Investor
or any holder of Registrable Securities, any director, officer or partner of
such Market Maker, such Affiliate Investor or such holder, or any controlling
person of any of the foregoing, and shall survive delivery of and payment for
the Registrable Securities pursuant to the Purchase Agreement and the transfer
and registration of Registrable Securities by such holder or of Securities or
Exchange Securities by any Market Maker or any Affiliate Investor and the
consummation of an Exchange Offer.
(f) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(g) Headings. The
descriptive headings of the several Sections and paragraphs of this Agreement
are inserted for convenience only, do not constitute a part of this Agreement
and shall not affect in any way the meaning or interpretation of this
Agreement.
(h) Entire Agreement;
Amendments. This Agreement and the other writings referred to
herein (including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes
all prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument
duly executed by the Company, the holders of at least a majority in aggregate
principal amount of the Registrable Securities at the time outstanding, and each
of the Market Makers; provided, however, that any such
amendment or waiver affecting solely provisions of this Agreement relating to
the Market Making Registration may be effected by a written instrument duly
executed solely by the Company and each of the Market Makers. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 9(h), whether or
not any notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so
long as this Agreement shall be in effect, this Agreement and a complete list of
the names and addresses of all the holders of Registrable Securities and the
address of each Market Maker and each Affiliate Investor shall be made available
for inspection and copying on any Business Day by any Market Maker, any
Affiliate Investor or any holder of Registrable Securities for proper purposes
only (which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Indenture and this Agreement)
at the offices of the Company at the address thereof set forth in
Section 9(c) and at the office of the Trustee under the
Indenture.
(j) Counterparts. This
Agreement may be executed by the parties in counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
(k) Severability. If
any provision of this Agreement, or the application thereof in any circumstance,
is held to be invalid, illegal or unenforceable in any respect for any reason,
the validity, legality and enforceability of such provision in every other
respect and of the remaining provisions contained in this Agreement shall not be
affected or impaired thereby.
If the
foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of
the Initial Purchasers, this letter and such acceptance hereof shall constitute
a binding agreement between each of the Initial Purchasers, the Guarantors and
the Company.
[SIGNATURE
PAGE FOLLOWS]
NYDOCS01/1221755.5
ENERGY
FUTURE HOLDINGS CORP.
|
By:
|
Name:
|
Title:
|
ENERGY
FUTURE COMPETITIVE HOLDINGS COMPANY, as Guarantor
|
By:
|
Name:
|
Title:
|
ENERGY
FUTURE INTERMEDIATE HOLDING COMPANY LLC, as Guarantor
|
By:
|
Name:
|
Title:
|
[Signature
Page to EFH Corp Registration Rights Agreement]
Accepted
as of the date hereof:
|
Citigroup
Global Markets Inc.
|
Goldman,
Sachs & Co.
|
For
themselves and as
|
Representatives
of the
|
Several
Initial Purchasers
|
Named
in Schedule I to the Purchase Agreement
|
By: Citigroup
Global Markets Inc.
|
By:
|
Name:
|
Title:
|
By: Goldman,
Sachs & Co.
|
By:
|
(Goldman,
Sachs & Co.)
|
By:
Credit Suisse Securities (USA) LLC
|
By:
|
Name:
|
Title:
|
By: J.P.
Morgan Securities Inc.
|
By:
|
Name:
|
Title:
|
NYDOCS01/1221755.5
Exhibit A
Energy
Future Holdings Corp.
INSTRUCTION TO DTC
PARTICIPANTS
(Date
of Mailing)
URGENT
- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR
RESPONSE: [DATE]*
The
Depository Trust Company (“DTC”) has
identified you as a DTC Participant through which beneficial interests in the
Energy Future Holdings Corp. (the “Company”)
10.000% Senior Secured Notes due 2020 (the “Securities”)
are held.
The
Company and the Guarantors are in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial owners
thereof. In order to have their Securities included in the
registration statement, beneficial owners must complete and return the enclosed
Notice of Registration Statement and Selling Securityholder
Questionnaire.
It is important that
beneficial owners of the Securities receive a copy of the enclosed materials as
soon as possible as their rights to have the Securities included in the
registration statement depend upon their returning the Notice and Questionnaire
by [Deadline For
Response]. Please forward a copy of the enclosed documents to
each beneficial owner that holds interests in the Securities through
you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact Energy Future Holdings
Corp., Energy Plaza, 1601 Bryan Street, Dallas, Texas 75201-3411, (214)
812-4600.
A-
Energy
Future Holdings Corp.
Notice of
Registration Statement
and
Selling Securityholder
Questionnaire
(Date)
Reference
is hereby made to the Registration Rights Agreement (the “Registration
Rights Agreement”) among
Energy Future Holdings Corp. (the “Company”),
the Guarantors named therein and the Initial Purchasers named
therein. Pursuant to the Registration Rights Agreement, the Company
has filed or will file with the United States Securities and Exchange Commission
(the “Commission”)
a registration statement on Form [__] (the “Shelf
Registration Statement”) for
the registration and resale under Rule 415 of the Securities Act of 1933,
as amended (the “Securities
Act”), of
the Company’s 10.000% Senior Secured Notes due 2020 (the “Securities”). A
copy of the Registration Rights Agreement has been filed as an exhibit to the
Shelf Registration Statement and can be obtained from the Commission’s website
at www.sec.gov. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each
beneficial owner of Registrable Securities (as defined below) is entitled to
have the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire (“Notice and
Questionnaire”) must be completed, executed and delivered to the
Company’s counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for
Response]. Beneficial owners of Registrable Securities who do
not properly complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf Registration
Statement and (ii) may not use the Prospectus forming a part thereof for resales
of Registrable Securities.
Certain
legal consequences arise from being named as a selling securityholder in the
Shelf Registration Statement and related Prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and related Prospectus.
The term
“Registrable
Securities” is defined in the Registration Rights Agreement.
A-
ELECTION
The
undersigned holder (the “Selling
Securityholder”) of Registrable Securities hereby elects to include in
the Shelf Registration Statement the Registrable Securities beneficially owned
by it and listed below in Item (3). The undersigned, by signing and returning
this Notice and Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including, without
limitation, Section 6 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto. In addition,
the undersigned, by signing and returning this Notice and Questionnaire,
represents and warrants that the representation set forth in Section 3(h) of the
Registration Rights Agreement is true and correct as of the date
hereof.
Pursuant
to the Registration Rights Agreement, the undersigned has agreed to indemnify
and hold harmless the Company, its officers who sign any Shelf Registration
Statement, and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act of 1934, as amended (the “Exchange
Act”),
against certain losses arising out of an untrue statement, or the alleged untrue
statement, of a material fact in the Shelf Registration Statement or the related
prospectus or the omission, or alleged omission, to state a material fact
required to be stated in such Shelf Registration Statement or the related
prospectus, but only to the extent such untrue statement or omission, or alleged
untrue statement or omission, was made in reliance on and in conformity with the
information provided in this Notice and
Questionnaire.
Upon any
sale of Registrable Securities pursuant to the Shelf Registration Statement, the
Selling Securityholder will be required to deliver to the Company and Trustee
the Notice of Transfer set forth in Appendix A to the Prospectus and as Exhibit
B to the Registration Rights Agreement.
The
Selling Securityholder hereby provides the following information to the Company
and represents and warrants that such information is accurate and
complete:
A-
QUESTIONNAIRE
(1) (a) Full
legal name of Selling Securityholder:
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(b)
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Full
legal name of registered Holder (if not the same as in (a) above) of
Registrable Securities listed in Item (3)
below:
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(c)
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Full
legal name of DTC Participant (if applicable and if not the same as (b)
above) through which Registrable Securities listed in Item (3) below are
held:
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(2) Address
for notices to Selling Securityholder:
Telephone:
Fax:
Contact
Person:
E-mail for Contact
Person:
(3) Beneficial
Ownership of Securities:
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Except
as set forth below in this Item (3), the undersigned does not beneficially
own
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any
Securities.
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(a) Principal
amount of Registrable Securities beneficially owned:
CUSIP No(s). of such Registrable
Securities:
(b) Principal
amount of Securities other than Registrable Securities beneficially
owned:
CUSIP No(s). of such other
Securities:
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(c)
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Principal
amount of Registrable Securities that the undersigned wishes to be
included
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in
the Shelf Registration
Statement:
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CUSIP
No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
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(4) Beneficial
Ownership of Other Securities of the Company:
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Except
as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other
than
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the
Securities listed above in Item
(3).
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State any exceptions
here:
(5) Individuals
who exercise dispositive powers with respect to the Securities:
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If
the Selling Securityholder is not an entity that is required to file
reports with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act (a “Reporting Company”), then the
Selling Securityholder must disclose the name of the natural person(s) who
exercise sole or shared dispositive powers with respect to the
Securities. Selling Securityholders should disclose the
beneficial holders, not nominee holders or other such others of
record. In addition, the Commission has provided guidance that
Rule 13d-3 of the Securities Exchange Act of 1934 should be used by
analogy when determining the person or persons sharing voting and/or
dispositive powers with respect to the
Securities.
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(a) Is
the holder a Reporting Company?
Yes ______ No ______
If
“No”, please answer Item (5)(b).
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(b)
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List
below the individual or individuals who exercise dispositive powers with
respect to the Securities:
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Please
note that the names of the persons listed in (b) above will be included in
the Shelf Registration Statement and related
Prospectus.
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(6) Relationships
with the Company:
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Except
as set forth below, neither the Selling Securityholder nor any of its
affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three
years.
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State any
exceptions here:
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(7) Plan
of Distribution:
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Except
as set forth below, the undersigned Selling Securityholder intends to
distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling
Securityholder. Such Registrable Securities may be sold in one
or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions
(which may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out such
short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such
securities.
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State any exceptions
here:
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Note: In
no event may such method(s) of distribution take the form of an
underwritten offering of Registrable Securities without the prior written
agreement of the Company.
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(8) Broker-Dealers:
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The
Commission requires that all Selling Securityholders that are registered
broker-dealers or affiliates of registered broker-dealers be so identified
in the Shelf Registration Statement. In addition, the
Commission requires that all Selling Securityholders that are registered
broker-dealers be named as underwriters in the Shelf Registration
Statement and related Prospectus, even if they did not receive the
Registrable Securities as compensation for underwriting
activities.
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(a) State
whether the undersigned Selling Securityholder is a registered
broker-dealer:
Yes ______ No ______
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(b)
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If
the answer to (a) is “Yes”, you must answer
(i) and (ii) below, and (iii) below if applicable. Your
answers to (i) and (ii) below, and (iii) below if applicable, will be
included in the Shelf Registration Statement and related
Prospectus.
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(i) Were
the Securities acquired as compensation for underwriting
activities?
Yes ______ No ______
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If
you answered “Yes”, please provide a brief description of the
transaction(s) in which the Securities were acquired as
compensation:
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(ii) Were
the Securities acquired for investment purposes?
Yes ______ No ______
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(iii)
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If
you answered “No” to both (i) and (ii), please explain the Selling
Securityholder’s reason for acquiring the
Securities:
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(c)
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State
whether the undersigned Selling Securityholder is an affiliate of a
registered broker-dealer and, if so, list the name(s) of the broker-dealer
affiliate(s):
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Yes ______ No ______
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(d) If
you answered “Yes” to
question (c) above:
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(i)
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Did
the undersigned Selling Securityholder purchase Registrable Securities in
the ordinary course of business?
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Yes ______ No ______
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If
the answer is “No” to question (d)(i), provide a brief explanation of the
circumstances in which the Selling Securityholder acquired the Registrable
Securities:
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(ii)
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At
the time of the purchase of the Registrable Securities, did the
undersigned Selling Securityholder have any agreements, understandings or
arrangements, directly or indirectly, with any person to dispose of or
distribute the Registrable
Securities?
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Yes ______ No ______
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If
the answer is “Yes” to question
(d)(ii), provide a brief explanation of such agreements, understandings or
arrangements:
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If
the answer is “No” to Item (8)(d)(i) or “Yes” to Item (8)(d)(ii), you will
be named as an underwriter in the Shelf Registration Statement and the
related Prospectus.
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(9)
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Hedging
and short sales:
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(a)
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State
whether the undersigned Selling Securityholder has or will enter into
“hedging transactions” with respect to the Registrable
Securities:
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Yes ______ No ______
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If
“Yes”, provide below a complete description of the hedging transactions
into which the undersigned Selling Securityholder has entered or will
enter and the purpose of such hedging transactions, including the extent
to which such hedging transactions remain in
place:
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(b)
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Set
forth below is Interpretation A.65 of the Commission’s July 1997 Manual of
Publicly Available Interpretations regarding short
selling:
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“An
issuer filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. One of the selling
shareholders wanted to do a short sale of common stock “against the box”
and cover the short sale with registered shares after the effective
date. The issuer was advised that the short sale could not be
made before the registration statement becomes effective, because the
shares underlying the short sale are deemed to be sold at the time such
sale is made. There would, therefore, be a violation of
Section 5 if the shares were effectively sold prior to the effective
date.”
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By
returning this Notice and Questionnaire, the undersigned Selling
Securityholder will be deemed to be aware of the foregoing
interpretation.
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* *
* * *
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By
signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act, particularly Regulation M (or any
successor rule or regulation).
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The
Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless the Company
and certain other persons as set forth in the Registration Rights
Agreement.
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In
the event that the Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company,
the Selling Securityholder agrees to notify the transferee(s) at the time
of the transfer of its rights and obligations under this Notice and
Questionnaire and the Registration Rights
Agreement.
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By
signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (9)
above and the inclusion of such information in the Shelf Registration
Statement and related Prospectus. The Selling Securityholder understands
that such information will be relied upon by the Company in connection
with the preparation of the Shelf Registration Statement and related
Prospectus.
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In
accordance with the Selling Securityholder’s obligation under
Section 3(d) of the Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf
Registration Statement, the Selling Securityholder agrees to promptly
notify the Company of any inaccuracies or changes in the information
provided herein which may
occur subsequent to the date hereof at any time while the Shelf
Registration Statement remains in effect and to provide such additional
information that the Company may reasonably request regarding such Selling
Securityholder and the intended method of distribution of Registrable
Securities in order to comply with the Securities Act. Except
as otherwise provided in the Registration Rights Agreement, all notices
hereunder and pursuant to the Registration Rights Agreement shall be made
in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as
follows:
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(i) To
the Company:
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Energy
Future Holdings Corp.
Energy
Plaza
1601
Bryan Street
Dallas,
Texas 75201-3411
Attention: General
Counsel
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(ii)
With a copy to:
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Vinson
& Elkins L.L.P.
2001
Ross Avenue, Suite 3700
Dallas,
Texas 75201
Attention: Robert
B. Little, Esq.
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Once
this Notice and Questionnaire is executed by the Selling Securityholder
and received by the Company’s counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives,
and assigns of the Company and the Selling Securityholder (with respect to
the Registrable Securities beneficially owned by such Selling
Securityholder and listed in Item (3) above). This Notice and
Questionnaire shall be governed in all respects by the laws of the State
of New York.
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A-
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
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Dated: ___________________________
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__________________________________________________________
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Selling
Securityholder
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(Print/type
full legal name of beneficial owner of Registrable
Securities)
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By:
_______________________________________________________
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Name:
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Title:
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PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR
BEFORE [DEADLINE FOR RESPONSE]
TO THE COMPANY’S COUNSEL AT:
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Vinson
& Elkins L.L.P.
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2001
Ross Avenue, Suite 3700
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Dallas,
Texas 75201
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Attention: Robert
B. Little, Esq.
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A-
Exhibit B
NOTICE OF
TRANSFER PURSUANT TO REGISTRATION STATEMENT
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The
Bank of New York
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Energy
Future Holdings Corp.
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c/o
The Bank of New York Mellon Trust
Company, N.A.
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Corporate
Trust Division
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101
Barclay Street
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Floor
8W
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New
York, NY 10286
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Attention: Trust
Officer
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Re:
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Energy
Future Holdings Corp. (the “Company”)
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10.000%
Senior Secured Notes due 2020
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Dear
Sirs:
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Please be
advised that ___________________ has transferred
$_________________________ aggregate principal amount of the
above-referenced Notes pursuant to an effective Registration Statement on Form
[___] (File
No. 333-____) filed by the Company.
We hereby
certify that the prospectus delivery requirements, if any, of the Securities Act
of 1933, as amended, have been satisfied and that the above-named beneficial
owner of the Notes is named as a “Selling Holder” in the Prospectus dated [date] or in supplements
thereto, and that the aggregate principal amount of the Notes transferred are
the Notes listed in such Prospectus opposite such owner’s name.
Dated:
Very
truly yours,
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___________________
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(Name)
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By: ___________________
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(Authorized
Signature)
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B-