Execution Copy
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Registration Rights Agreement
Dated as of February 1, 2000
among
Alliant Energy Resources, Inc.,
ALLIANT ENERGY CORPORATION
and
MERRILL LYNCH & CO.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 1st day of February, 2000, among Alliant Energy Resources,
Inc., a Wisconsin corporation (the "Company"), Alliant Energy Corporation, a
Wisconsin corporation (the "Parent"), and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
January 26, 2000, among the Company, the Parent, as guarantor, and the Initial
Purchaser (the "Purchase Agreement"), which provides for the sale by the Company
to the Initial Purchaser of 5,166,052 (or 5,940,960 if the over-allotment option
is exercised in full) Exchangeable Senior Notes due 2030 (the "Securities"). In
order to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company and the Parent have agreed to provide to the Initial Purchaser and their
direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of l934,
as amended from time to time.
"Agreement" shall have the meaning set forth in the
preamble.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble
and shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that
such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2.2 hereof.
"Exchange Offer" shall mean the exchange offer by the
Company and the Parent of Exchange Securities for Registrable
Securities pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if applicable,
on another appropriate form), and all amendments and supplements to
such registration statement, including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by
reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2.1 hereof.
"Exchange Securities" shall mean the Securities, issued by
the Company under the Indenture containing terms identical to the
Securities in all respects (except for restrictions on transfers and
restrictive legends), to be offered to Holders of Registrable
Securities pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of such Exchange Securities.
"Indenture" shall mean the Indenture relating to, among
other debt securities, the Securities, dated as of November 4, 1999,
between the Company, the Parent and Firstar Bank, N.A., as trustee, as
the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof.
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"Initial Purchaser" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of Outstanding (as defined in the
Indenture) Registrable Securities; provided that whenever the consent
or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company and other obligors on the Securities or any Affiliate (as
defined in the Indenture) of the Company shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage amount.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Parent" shall have the meaning set forth in the preamble
and shall also include the Parent's successors.
"Participating Broker-Dealer" shall mean Merrill Lynch,
Pierce, Fenner & Smith Incorporated, and any other broker-dealer which
makes a market in the Securities and exchanges Registrable Securities
in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Private Exchange" shall have the meaning set forth in
Section 2.1 hereof.
"Private Exchange Securities" shall have the meaning set
forth in Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
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"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, that the
Securities and, if issued, the Private Exchange Securities, shall
cease to be Registrable Securities when (i) a Registration Statement
with respect to such securities shall have been declared effective
under the 1933 Act and such securities shall have been disposed of
pursuant to such Registration Statement, (ii) such securities have
been sold to the public pursuant to Rule l44 (or any similar provision
then in force, but not Rule 144A) under the 1933 Act, (iii) such
securities shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Securities purchased from
the Company and continued to be held by the Initial Purchaser).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the Parent
with this Agreement, including without limitation: (i) all SEC, stock
exchange or the NASD registration and filing fees, including, if
applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained by any
holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or
Registrable Securities and any filings with the NASD), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating
to the performance of and compliance with this Agreement, (iv) all
fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and disbursements
of counsel for the Company and the Parent and of the independent
public accountants of the Company and the Parent, including the
expenses of any special audits or "cold comfort" letters required by
or incident to such performance and compliance, (vii) the fees and
expenses of the Trustee, and any escrow agent or custodian, (viii) in
the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one special counsel designated in writing by the
Majority Holders to represent the Holders of Registrable Securities
and (ix) any fees and
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disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the fees and expenses of any
special experts retained by the Company and the Parent in connection
with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company and the Parent which covers any of the
Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to
any such Registration Statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or
any successor agency or government body performing the functions
currently performed by the United States Securities and Exchange
Commission.
"SEC Order" shall have the meaning set forth in Section 2.1.
"Securities" shall have the meaning set forth in the
preamble.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Parent pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities or all of the Private Exchange Securities on an
appropriate form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"Underwriter" shall have the meaning set forth in Section 4
hereof.
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2. Registration Under the 1933 Act.
2.1 Exchange Offer. Except as provided in Section 2.2 and to the
extent not prohibited by any applicable law or applicable interpretation of the
staff of the SEC, the Company and the Parent shall, for the benefit of the
Holders, at the cost of the Company and the Parent, (A) prepare and, as soon as
practicable but not later than 135 days following the Closing Date, use their
reasonable best efforts to file with the SEC an Exchange Offer Registration
Statement on an appropriate form under the 1933 Act with respect to a proposed
Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Securities (other than Private Exchange Securities), of a like
principal amount of Exchange Securities, (B) use their reasonable best efforts
to cause the Exchange Offer Registration Statement to be declared effective
under the 1933 Act within 180 days of the Closing Date, (C) use their reasonable
best efforts to keep the Exchange Offer Registration Statement effective until
the closing of the Exchange Offer and (D) use their reasonable best efforts to
cause the Exchange Offer to be consummated not later than 45 days after the
effective date of the Exchange Offer Registration Statement. The Exchange
Securities will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company and the Parent shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a
broker-dealer tendering Registrable Securities acquired directly from the
Company for its own account, (c) acquired the Exchange Securities in the
ordinary course of such Holder's business and (d) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the 1933 Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the Parent
shall:
(a) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(b) keep the Exchange Offer open for acceptance for a period
of not less than 20 business days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
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(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (Eastern Time), on the last
business day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement that
such Holder is withdrawing such Holder's election to have such
Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except in the case of
the Initial Purchaser and Participating Broker-Dealers as provided
herein); and
(f) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Securities acquired by it and having the status of an unsold
allotment in the initial distribution, the Company and the Parent upon the
request of the Initial Purchaser shall, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer and subject to compliance with
applicable securities laws, issue and deliver to the Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by the Initial
Purchaser, a like principal amount of debt securities of the Company on a senior
basis, that are identical (except that such securities shall bear appropriate
transfer restrictions) to the Exchange Securities (the "Private Exchange
Securities").
The Exchange Securities and the Private Exchange Securities shall
be issued under the Indenture which has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Securities
shall not be subject to the transfer restrictions set forth in the Indenture but
that the Private Exchange Securities shall be subject to such transfer
restrictions. The Indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter. The Private Exchange Securities shall
be of the same series as and the Company and the Parent shall use all
commercially reasonable efforts to have the Private Exchange Securities bear the
same CUSIP number as the Exchange Securities. Neither the Company nor the Parent
shall have any liability under this Agreement solely as
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a result of such Private Exchange Securities not bearing the same CUSIP number
as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer
and/or the Private Exchange, as the case may be, the Company and the Parent
shall:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(iii) deliver to the Trustee for cancellation all
Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may
be, to each Holder of Registrable Securities so accepted for exchange
in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security
will accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
1933 Act) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the
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judgment of the Company and the Parent, would reasonably be expected to impair
the ability of the Company and the Parent to proceed with the Exchange Offer or
the Private Exchange and that the Exchange Offer and the Private Exchange shall
comply with the provisions of the SEC's Release No. 35-27069, 70-9455 dated as
of August 26, 1999 by which the Parent and the Company are bound (the "SEC
Order"). The Company and the Parent shall inform the Initial Purchaser of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchaser shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If the law, SEC rules or regulations
or applicable interpretations thereof by the staff of the SEC, U.S. Department
of the Treasury or the Internal Revenue Service do not permit or make it
impractical or inadvisable for the Company and the Parent to effect the Exchange
Offer as contemplated by Section 2.1 hereof, (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 180 days
following the Closing Date or the Exchange Offer is not consummated within 45
days after effectiveness of the Exchange Offer Registration Statement (provided
that if the Exchange Offer Registration Statement shall be declared effective
after such 180-day period or if the Exchange Offer shall be consummated after
such 45-day period, then the obligation of the Company and the Parent under this
clause (ii) arising from the failure of the Exchange Offer Registration
Statement to be declared effective within such 180-day period or the failure of
the Exchange Offer to be consummated within such 45-day period, respectively,
shall terminate), (iii) upon the request of the Initial Purchaser within 90 days
following the consummation of the Exchange Offer or (iv) if, as a result of any
changes in law, SEC rules or regulations or applicable interpretations thereof
by the staff of the SEC or otherwise, a Holder (other than the Initial Purchaser
holding securities acquired directly from the Company) is not permitted to
participate in the Exchange Offer or does not receive fully tradeable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i)
through (iv) the Company and the Parent shall, at their cost:
(a) To the extent not prohibited by any applicable law or
applicable interpretations thereof by the staff of the SEC or
otherwise, as promptly as practicable, use their reasonable best
efforts to file with the SEC and thereafter to cause to be declared
effective as promptly as practicable but no later than 210 days after
the Closing Date, a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set forth
in such Shelf Registration Statement.
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(b) Use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period
of two years from the Closing Date, or for such shorter period that
will terminate when all Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period"); provided,
however, that the Effectiveness Period in respect of the Shelf
Registration Statement shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise provided
herein.
(c) Notwithstanding any other provisions hereof, use their
reasonable best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects
with the 1933 Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, 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 (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading;
provided, however, that clauses (ii) and (iii) shall not apply to any
information relating to the Initial Purchaser or any Holder furnished
to the Company in writing by the Initial Purchaser or Holder expressly
for use in the Shelf Registration Statement.
The Company and the Parent further agree, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section
3(b) below, and to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
2.3 Expenses. The Company and the Parent shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
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2.4. Effectiveness.
(a) The Company and the Parent will be deemed not to have used
their reasonable best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to
become, or to remain, effective during the requisite period if the
Company and the Parent voluntarily take any action that would, or omit
to take any action which omission would, result in any such
Registration Statement not being declared effective or in the Holders
of Registrable Securities covered thereby not being able to exchange
or offer and sell such Registrable Securities during that period as
and to the extent contemplated hereby, unless such action is required
by applicable law, as contemplated by clause (i) of Section 2.2, or,
in the case of the Exchange Offer Registration Statement, such action
would violate the provisions of the SEC Order.
(b) An Exchange Offer Registration Statement pursuant to Section
2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it
has been declared effective, the offering of Registrable Securities
pursuant to an Exchange Offer Registration Statement or a Shelf
Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
(c) Notwithstanding anything in this Agreement to the contrary,
during the Effectiveness Period, upon notice to the Holders of the
Securities (as described in Section 3(e)(viii) hereunder), the Company
and the Parent may suspend the availability of the Shelf Registration
Statement for up to two (2) periods of up to 30 consecutive days each,
but not more than an aggregate of 30 days during any 365-day period,
if the board of directors of the Company and the Parent in their
respective reasonable judgments believe that they may possess material
non-public information that makes it advisable to so suspend the
availability of the Shelf Registration Statement.
3. Registration Procedures.
In connection with and subject to the rights and the obligations
of the Company and the Parent with respect to Registration Statements pursuant
to Sections 2.1, 2.2 and 2.4(c) hereof, the Company and the Parent shall:
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(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected
by the Company and the Parent, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof, (iii) shall comply as to form in all
material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required
by the SEC to be filed therewith or incorporated by reference therein
and (iv) shall comply in all material respects with the requirements
of Regulation S-T under the 1933 Act, and use their reasonable best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all
securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities, at least five business days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that
the distribution of Registrable Securities will be made in accordance
with the method selected by the Majority Holders participating in the
Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable
Securities; and (iii) hereby consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
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(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Securities shall reasonably
request by the time the applicable Registration Statement is declared
effective by the SEC, and do any and all other acts and things which
may be reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither the Company nor the Parent shall be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action
which would subject it to general service of process or taxation in
any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration or any Participating Broker-Dealer who has notified
the Company and the Parent that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if
requested by such Holder or Participating Broker-Dealer, confirm such
advice in writing promptly (i) when a Registration Statement has
become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC
or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company and the Parent contained in any underwriting
agreement, securities sales agreement or other similar agreement, if
any, relating to the offering cease to be true and correct in all
material respects, (v) of the happening of any event or the discovery
of any facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Company or the Parent of any
notification with respect to the suspension of the qualification of
the Registrable Securities or the Exchange Securities, as the case may
be, for sale
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in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, (vii) of any determination by the Company and the
Parent that a post-effective amendment to such Registration Statement
would be appropriate and (viii) of any determination to suspend the
use of the Shelf Registration Statement under Section 2.4(c);
(f) (A) in the case of the Exchange Offer Registration Statement
(i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution" which section shall be reasonably
acceptable to Merrill Lynch on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies, in
the reasonable judgment of Merrill Lynch on behalf of the
Participating Broker-Dealers and its counsel, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange
Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company and the Parent the notice referred to in
Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as
such Participating Broker-Dealer may reasonably request, (iii) hereby
consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto,
by any Person subject to the prospectus delivery requirements of the
SEC, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in
the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as
a result of market-making activities or other trading
activities,
14
it will deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of
Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;"
and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Parent agree to deliver to the Initial
Purchaser on behalf of the Participating Broker-Dealers upon the
effectiveness of the Exchange Offer Registration Statement (i) an
opinion of counsel or opinions of counsel substantially in the form
attached hereto as Exhibit A, (ii) officers' certificates
substantially in the form customarily delivered in a public offering
of debt securities and (iii) a comfort letter or comfort letters in
customary form to the extent permitted by Statement on Auditing
Standards No. 72 of the American Institute of Certified Public
Accountants (or if such a comfort letter is not permitted, an agreed
upon procedures letter in customary form) from the independent
certified public accountants of the Company and the Parent (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or the Parent or of any business acquired by
the Company or the Parent for which financial statements are, or are
required to be, included in the Registration Statement) at least as
broad in scope and coverage as the comfort letter or comfort letters
delivered to the Initial Purchaser in connection with the initial sale
of the Securities to the Initial Purchaser;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchaser and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Securities copies of
any comment letters received from the SEC or any other request by the
SEC or any state securities authority for amendments or supplements to
a Registration Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities, and each underwriter, if any, without
charge, at least one
15
conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits
thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing
of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by
Sections 3(e)(v), 3(e)(vi) and 3(e)(viii) hereof, as promptly as
practicable after the occurrence of such an event, use their
reasonable best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Securities or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will
remain so qualified. At such time as such public disclosure is
otherwise made or the Company and the Parent determine that such
disclosure is not necessary, in each case to correct any misstatement
of a material fact or to include any omitted material fact, the
Company and the Parent agree promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably
request;
(l) in the case of a Shelf Registration, a reasonable time prior
to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the
Initial Purchaser on behalf of such Holders; and make representatives
of the Company and the Parent as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchaser on behalf
of such Holders, available for discussion of such document upon
reasonable advance
16
notice. In connection with such discussions, the Holders or the
Initial Purchaser, on behalf of such Holders, shall use their
reasonable best efforts to minimize any disruption to the business of
the Company and the Parent;
(m) obtain a CUSIP number for all Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide
the Trustee with certificates for the Exchange Securities, Private
Exchange Securities or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with
the terms of the TIA and (iii) execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection whether or not
an underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be
reasonably requested by them;
(ii) obtain opinions of counsel to the Company and the
Parent and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority in
principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and
17
such other matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company and
the Parent (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or the Parent
or of any business acquired by the Company or the Parent for
which financial statements are, or are required to be, included
in the Registration Statement) addressed to the underwriters, if
any, and use reasonable efforts to have such letter addressed to
the selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accountants), such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders for
the purpose of soliciting purchases of Registrable Securities,
which agreement shall be in form, substance and scope customary
for similar offerings;
(v) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters,
if any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereto) and (ii) each closing
under any underwriting or similar agreement as and to the extent required
thereunder;
18
(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the
case of an Exchange Offer, make available for inspection by
representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement, any Participating Broker-Dealer and any
counsel or accountant retained by any of the foregoing, all financial
and other records, pertinent corporate documents and properties of the
Company and the Parent reasonably requested by any such persons, and
cause the respective officers, directors, employees, and any other
agents of the Company and the Parent to supply all information
reasonably requested by any such representative, underwriter, special
counsel or accountant in connection with a Registration Statement, and
make such representatives of the Company and the Parent available for
discussion of such documents as shall be reasonably requested by the
Initial Purchaser;
(q) (i) in the case of an Exchange Offer Registration Statement,
a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Initial Purchaser and to counsel to the Holders of Registrable
Securities and make such changes in any such document prior to the
filing thereof as the Initial Purchaser or counsel to the Holders of
Registrable Securities may reasonably request and, except as otherwise
required by applicable law, not file any such document in a form to
which the Initial Purchaser on behalf of the Holders of Registrable
Securities and counsel to the Holders of Registrable Securities shall
not have previously been advised and furnished a copy of or to which
the Initial Purchaser on behalf of the Holders of Registrable
Securities or counsel to the Holders of Registrable Securities shall
reasonably object, and make the representatives of the Company and the
Parent available for discussion of such documents as shall be
reasonably requested by the Initial Purchaser; and
(ii) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a
part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Securities, to the Initial
Purchaser, to counsel for the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Securities, if
any, make such changes in any such document prior to the filing
thereof as the Initial Purchaser, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such
document in a form to
19
which the Majority Holders, the Initial Purchaser on behalf of the
Holders of Registrable Securities, counsel for the Holders of
Registrable Securities or any underwriter shall not have previously
been advised and furnished a copy of or to which the Majority Holders,
the Initial Purchaser of behalf of the Holders of Registrable
Securities, counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object, and make the representatives of
the Company and the Parent available for discussion of such document
as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchaser on behalf of such Holders, counsel
for the Holders of Registrable Securities or any underwriter.
(r) following effectiveness of a Registration Statement, use
their reasonable best efforts to cause all Exchange Securities to be
listed on the New York Stock Exchange if requested by the Majority
Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Exchange Securities, if any;
(s) in the case of a Shelf Registration, use their reasonable
best efforts to cause the Registrable Securities to be rated by the
appropriate rating agencies, if so requested by the Majority Holders,
or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;
(t) otherwise comply with all applicable rules and regulations of
the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement of the Parent covering
at least 12 months which shall satisfy the provisions of Section 11(a)
of the 1933 Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be made with
the NASD and, in the case of a Shelf Registration, in the performance
of any due diligence investigation by any underwriter and its counsel
(including any "qualified independent underwriter" that is required to
be retained in accordance with the rules and regulations of the NASD);
and
(v) upon consummation of an Exchange Offer or a Private Exchange,
obtain a customary opinion of counsel to the Company and the Parent
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or Private Exchange,
and which includes an opinion that (i) each of the Company and the
Parent has duly authorized, executed and delivered the Exchange
Securities and/or Private Exchange Securities, as applicable, and the
related indenture, and (ii) each of the Exchange Securities and
related indenture constitute a legal, valid and binding obligation of
the Company and the Parent, enforceable against the Company
20
and the Parent in accordance with its respective terms (with customary
exceptions).
In the case of a Shelf Registration Statement, the Company and
the Parent may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities (i) to furnish to
the Company and the Parent such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company and the Parent may from time to time reasonably request and (ii) to
agree in writing to be bound by this Agreement, including the indemnification
provisions.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company and the Parent of the
happening of any event or the discovery of any facts, each of the kind described
in Sections 3(e)(v) and 3(e)(viii) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company and the Parent, such Holder will deliver to the Company and the
Parent (at its expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company and the Parent.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) 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 (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company and the Parent jointly and severally agree to
indemnify and hold harmless the Initial Purchaser, each Holder, each
Participating Broker-Dealer, each Person who participates as an
underwriter (any such Person being an "Underwriter") and each Person,
if any, who controls any Holder or Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
21
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company
and the Parent; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by the Holder or Underwriter
expressly for use in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
22
(b) Each Holder severally, but not jointly, agrees to indemnify
and hold harmless the Company, the Parent, the Initial Purchaser, each
Underwriter and the other selling Holders, and each of their
respective directors and officers, and each Person, if any, who
controls the Company, the Parent, the Initial Purchaser, any
Underwriter or any other selling Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by
such Holder expressly for use in the Shelf Registration Statement (or
any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be
liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure so to notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. In
addition, the indemnifying party shall be entitled to, to the extent
that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense of any claim or action brought against an
indemnified party with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
23
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that the Initial Purchaser shall have the right to
employ one counsel to represent it and its officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Initial
Purchaser against the Company and the Parent under this Section 4 if,
in the reasonable judgment of the Initial Purchaser, either (i) there
is an actual or potential conflict between the position of the Company
and the Parent on the one hand and the Initial Purchaser on the other
hand or (ii) there may be defenses available to it or them that are
different from or additional to those available to the Company and
Parent (in any of which events the Company shall not have the right to
direct the defense of such action on behalf of the Initial Purchaser
with respect to such different defenses), in any of which events such
reasonable fees and expenses shall be borne by the Company and Parent.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such
24
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate
to reflect the relative fault of the Company and the Parent on the one
hand and the Holders and the Initial Purchaser on the other hand in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company and the Parent on the one hand
and the Holders and the Initial Purchaser on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Parent, the Holders or
the Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Parent, the Holders and the Initial Purchaser
agree that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 4. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 4 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities sold by it were offered exceeds
the amount of any damages which the Initial Purchaser has 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 1933 Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls
the Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Initial Purchaser or Holder, and each director of the Company, the Parent and
each Person, if any, who controls the
25
Company or the Parent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Parent.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Parent is subject
to the reporting requirements of Section 13 or 15 of the 1934 Act, the Parent
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Parent ceases to be so
required to file such reports, the Parent covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Parent will deliver to such Holder a written
statement as to whether it has complied with such requirements. The Company
shall not be subject to the requirements of this Section 5.1, provided, that, it
obtains no-action relief from the SEC regarding its reporting requirements under
Section 13 or 15 of the 1934 Act and under the 1933 Act.
5.2 No Inconsistent Agreements. Neither the Company nor the
Parent has entered into and neither the Company nor the Parent will after the
date of this Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company's or the Parent's
other issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Parent have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
26
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company or the Parent, as the case may be, by means of a notice given in
accordance with the provisions of this Section 5.4, which address initially is
the address set forth in the Purchase Agreement with respect to the Initial
Purchaser; (b) if to the Company, initially at the Company's address set forth
in the Purchase Agreement, and thereafter at such other address of which notice
is given in accordance with the provisions of this Section 5.4 and (c) if to the
Parent, initially at the Parent's address set forth in Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser (even if the
Initial Purchaser is not a Holder of Registrable Securities) shall be a third
party beneficiary to the agreements made hereunder between the Company and the
Parent, on the one hand, and the Holders, on the other hand, and shall have the
right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a
27
third party beneficiary to the agreements made hereunder between the Company and
the Parent, on the one hand, and the Initial Purchaser, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the remedies
available to the Initial Purchaser and the Holders, the Company and the Parent
acknowledge that any failure by the Company and the Parent to comply with its
obligations under Sections 2.1 through 2.4 hereof may result in material
irreparable injury to the Initial Purchaser or the Holders for which there is no
adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the obligations of the Company and the Parent under
Sections 2.1 through 2.4 hereof.
5.8. Restriction on Resales. Until the expiration of two years
after the original issuance of the Securities and the related guarantees, the
Company and the Parent will not, and will cause their "affiliates" (as such term
is defined in Rule 144(a)(1) under the 1933 Act) not to, resell any Securities
and related guarantees which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act) that have been reacquired by
any of them and shall immediately upon any purchase of any such Securities and
related guarantees submit such Securities and related guarantees to the Trustee
for cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
28
5.12 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
ALLIANT ENERGY RESOURCES, INC.
By: /s/ Edward M. Gleason
----------------------------------
Name: Edward M. Gleason
Title: Vice President-Treasurer and
Corporate Secretary
ALLIANT ENERGY CORPORATION,
By: /s/ Edward M. Gleason
----------------------------------
Name: Edward M. Gleason
Title: Vice President-Treasurer and
Corporate Secretary
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Mary E. Ryan
----------------------------------
Name: Mary E. Ryan
Title: Vice President
30
Exhibit A
Form of Opinion of Counsel
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as counsel for Alliant Energy Resources, Inc., a
Wisconsin corporation (the "Company"), and Alliant Energy Corporation, a
Wisconsin corporation (the "Parent"), in connection with the sale by the Company
to the Initial Purchaser (as defined below) of 5,166,052 (or 5,940,960 if the
over-allotment option is exercised in full) Exchangeable Senior Notes Due 2030
of the Company pursuant to the Purchase Agreement dated January 26, 2000 (the
"Purchase Agreement") among the Company, the Parent, as guarantor and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Initial Purchaser") and the
filing by the Company and the Parent of an Exchange Offer Registration Statement
(the "Registration Statement") in connection with an Exchange Offer to be
effected pursuant to the Registration Rights Agreement (the "Registration Rights
Agreement"), dated February 1, 2000 among the Company, the Parent and the
Initial Purchaser. This opinion is furnished to you pursuant to Section 3(f)(B)
of the Registration Rights Agreement. Unless otherwise defined herein,
capitalized terms used in this opinion that are defined in the Registration
Rights Agreement are used herein as so defined.
We have examined such documents, records and matters of law as we
have deemed necessary for purposes of this opinion. In rendering this opinion,
as to all matters of fact relevant to this opinion, we have assumed the
completeness and accuracy of, and are relying solely upon, the representations
and warranties of the Company and the Parent set forth in the Purchase Agreement
and the statements set forth in certificates of public officials and officers of
the Company and the Parent, without making any independent investigation or
inquiry with respect to the completeness or accuracy of such representations,
warranties or statements, other than a review of the certificate of
incorporation, by-laws and relevant minute books of the Company and the Parent.
Based on and subject to the foregoing, we are of the opinion
that:
1. The Exchange Offer Registration Statement and the Prospectus
(other than the financial statements, notes or schedules thereto and other
financial and statistical data and supplemental schedules included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which such counsel need express no opinion), comply as to form in all material
respects with the requirements of the 1933 Act and the applicable rules and
regulations promulgated under the 1933 Act.
We have participated in the preparation of the Registration
Statement and the Prospectus and in the course thereof have had discussions with
representatives of the Underwriters, officers and other representatives of the
Company, the Parent and Arthur Andersen LLP, the independent certified public
accountants of the Company and the Parent, during which the contents of the
Registration Statement and the Prospectus were discussed. We have not, however,
independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus. Based on our
participation as described above, nothing has come to our attention that would
lead us to believe that the Registration Statement (except for financial
statements and schedules and other financial and statistical data included
therein as to which we make no statement) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial and statistical data included
therein, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
2