EXHIBIT 10.23
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
EEX CORPORATION,
WARBURG, PINCUS EQUITY PARTNERS, L.P.,
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V.,
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V.,
AND
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V.
DATED AS OF JANUARY 8, 1999
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TABLE OF CONTENTS
1. Definitions............................................................. 1
2. Securities Subject to this Agreement.................................... 2
(a) Registrable Securities........................................... 2
(b) Holders of Registrable Securities................................ 2
3. Demand Registration..................................................... 2
(a) Requests for Registration........................................ 2
(b) Number of Registrations.......................................... 3
(c) Effective Registration Expenses.................................. 3
(d) No Rights of Company or Other Securityholders to Piggyback on
Demand Registrations............................................. 3
(e) Priority on Demand Registrations................................. 3
(f) Selection of Underwriters........................................ 4
(g) Other Registration Rights Agreements............................. 4
4. Piggyback Registrations................................................. 4
(a) Right to Piggyback............................................... 4
(b) Piggyback Expenses............................................... 4
(c) Priority on Primary Registrations................................ 4
(d) Priority on Secondary Registrations.............................. 5
(e) Underwritten Offering of Different Classes of Securities......... 5
(f) Selection of Underwriters........................................ 5
5. Registration on Form S-3................................................ 5
6. Holdback Agreements..................................................... 6
(a) Restrictions on Public Sale by Holder of Registrable Securities.. 6
(b) Restrictions on Public Sale by the Company....................... 6
(c) Deferral of Filing; Suspension of Shelf Registration Statement... 6
7. Registration Procedures................................................. 7
8. Registration Expenses................................................... 10
9. Indemnification; Contribution........................................... 10
(a) Indemnification by Company....................................... 10
(b) Indemnification by Holder of Registrable Securities.............. 11
(c) Conduct of Indemnification Proceedings........................... 11
(d) Contribution..................................................... 11
10. Rule 144................................................................ 12
11. Participation in Underwritten Registrations............................. 12
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12. Miscellaneous........................................................... 12
(a) Right to Suspend................................................. 12
(b) Remedies......................................................... 13
(c) Amendments and Waivers........................................... 13
(d) Registrable Securities Held by the Company or its Affiliates..... 13
(e) Notices.......................................................... 13
(f) Successors and Assigns........................................... 14
(g) Counterparts..................................................... 14
(h) Headings......................................................... 14
(i) Governing Law; Jurisdiction...................................... 14
(j) Severability..................................................... 14
(k) Entire Agreement................................................. 14
(l) Attorney's Fees.................................................. 14
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into this 8th day of January 1999, by and among EEX Corporation, a Texas
corporation (the "Company"), and Warburg, Pincus Equity Partners, L.P., a
Delaware limited partnership, Warburg, Pincus Netherlands Equity Partners I,
C.V., a Dutch limited partnership, Warburg, Pincus Netherlands Equity Partners
II, C.V., a Dutch limited partnership, and Warburg, Pincus Netherlands Equity
Partners III, C.V., a Dutch limited partnership, (collectively, the
"Purchaser").
RECITALS:
This Agreement is made pursuant to the Purchase Agreement, dated December
22, 1998 between the Company and the Purchaser (the "Purchase Agreement"). In
order to induce the Purchaser to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
AGREEMENT:
The parties hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the following terms will have the following
meanings:
"Demand Registration" has the meaning set forth in Section 3(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Majority" means 51% or more.
"Person" means any individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggyback Registration" has the meaning set forth in Section 4(a).
"Preferred Stock" means shares of the Company's Series B 8% Cumulative
Perpetual Preferred Stock.
"Registration Expenses" has the meaning set forth in Section 8(a).
"Registration Notice" has the meaning set forth in Section 5.
"Registrable Securities" means (i) the Shares, (ii) the Warrants and (iii)
any securities issued or issuable with respect to the Shares or the Warrants by
way of exercise, stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
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"Restricted Securities" means the Registrable Securities upon original
issuance thereof, subject to the provisions of Section 2(a).
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"SEC" means the Securities and Exchange Commission.
"Shares" means the shares of Preferred Stock issued and sold pursuant to
the Purchase Agreement and shares of Preferred Stock or Common Stock issued or
issuable as a dividend on such shares.
"Underwritten registration" or "underwritten offering" means any
registration in which securities of the Company are sold pursuant to a firm
commitment underwriting.
"Warrants" means the warrants issued and sold pursuant to the Purchase
Ageement.
(b) All undefined capitalized terms used herein shall have the meaning set
forth in the Purchase Agreement.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) Registrable Securities. The securities entitled to the benefits of this
Agreement are the Registrable Securities but, with respect to any particular
Registrable Security, only so long as such security continues to be a Restricted
Security. A Registrable Security ceases to be a Restricted Security when (i) it
has been effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering it, (ii) has been sold
pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act or (iii) it has otherwise been transferred and a new certificate
or other evidence of ownership for it not bearing the legend set forth in
Section 4.5 of the Purchase Agreement (or other legend of similar import) has
been delivered (not subject to any stop transfer order) by or on behalf of the
Company and no other restriction on transfer exists.
(b) Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever such Person owns Registrable Securities or has
the right to acquire such Registrable Securities, disregarding any legal
restrictions upon the exercise of such right, whether or not such acquisition
has actually been effected.
3. DEMAND REGISTRATION.
(a) Requests for Registration. Subject to the provisions of Section 3(b),
any holder or holders of the then outstanding Registrable Securities may request
at any time a registration by the Company under the Securities Act of all or
part of his Registrable Securities (a "Demand Registration"). Within ten days
after receipt of such request, the Company will serve written notice by
overnight carrier of such registration request to all holders of Registrable
Securities and will, subject to the provisions of Section 3(b), include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 business days after
distribution to the applicable holder of the Company's notice. All requests made
pursuant to this Section 3(a) will specify the amount of Registrable Securities
to be registered and will also specify the intended method of
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disposition thereof; provided, however, that such method of disposition will be
limited to an underwritten offering if requested by the holders of a Majority of
the Registrable Securities requested to be included in such registration.
(b) Number of Registrations. The holders of Registrable Securities will be
entitled to request an aggregate of three Demand Registrations. A registration
initiated as a Demand Registration will not constitute a Demand Registration (i)
unless such registration has been declared effective by the SEC and remains
effective for the period set forth in Section 7(a)(iii); provided, however,
that, if more than 10% of the Registrable Securities requested to be included in
a Demand Registration which is an underwritten registration can be excluded
therefrom by reason of the provisions of Section 3(e), the holders of
Registrable Securities will be entitled to one additional Demand Registration
(in which the Company will pay the Registration Expenses) and (ii) if after such
registration has been declared effective by the SEC it is subject to any stop
order, injunction or other adverse order or action of the SEC or other
governmental authority.
(c) Effective Registration Expenses. Except as provided in Section 3(d),
any registration initiated as a Demand Registration, the Company will pay all
Registration Expenses, whether or not the registration has been declared
effective .
(d) No Rights of Company or Other Securityholders to Piggyback on Demand
Registrations. Neither the Company nor any of its securityholders (other than
the holders of Registrable Securities in such capacity) has any right to include
any of the Company's securities in a registration statement initiated as a
Demand Registration under this Section 3, unless (i) such securities are of the
same class as the Registrable Securities being registered, (ii) the holders of a
Majority of the Registrable Securities being registered in such registration
consent to such inclusion in writing, subject to Section 3(e), (iii) if such
Demand Registration is an underwritten offering, the managing underwriters agree
that some or all of such securities can be included without adversely affecting
such offering or offering price and (iv) the Company or the selling
securityholders, as applicable, agree to sell their securities on the same terms
and conditions as apply to Registrable Securities and the holders of such
Registrable Securities. If any securityholders of the Company (other than the
holders of Registrable Securities in such capacity) register securities of the
Company in a Demand Registration (in accordance with the provisions of this
Section 3(d)), such securityholders will pay the fees and expenses of counsel to
such securityholders and their pro rata share of the Registration Expenses if
such pro rata share of the Registration Expenses for such registration are not
paid by the Company for any reason.
(e) Priority on Demand Registrations. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company and the
selling holders of the Registrable Securities in writing that in their opinion
the number of Registrable Securities requested to be included exceeds the number
of securities which can be sold in such offering without adversely affecting the
proposed offering or the offering price, the Company will include in such
registration the number of Registrable Securities which in the opinion of such
underwriters can be sold without adversely affecting the proposed offering or
the offering price, and such securities will be allocated pro rata among the
holders of Registrable Securities on the basis of the number of the Registrable
Securities requested to be included in such registration by their respective
holders. If securities (other than Registrable Securities) are proposed to be
included by the Company or its other securityholders in a Demand
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Registration which is an underwritten offering (subject to and in accordance
with the provisions of Section 3(d)) and the managing underwriters advise the
Company and the selling holders of Registrable Securities in writing that some
but not all of said other securities can be sold without adversely affecting the
proposed offering or the offering price in such underwritten offering, in
addition to all of the Registrable Securities being registered, those securities
which are permitted to be included will be allocated (i) first, to the Company
and (ii) second, to the securityholders of such securities, allocated among them
in such proportions as such securityholders and the Company may agree.
(f) Selection of Underwriters. If any Demand Registration is an
underwritten offering, or a best efforts underwritten offering, the investment
banker or investment bankers and manager or managers that will administer the
offering will be selected by the holders of a Majority of the Registrable
Securities requested to be included in such offering; provided, however, such
investment bankers and managers must be reasonably satisfactory to the Company.
(g) Other Registration Rights Agreements. Without the prior written consent
of the holders of a Majority of the Registrable Securities, the Company will
neither enter into any new registration rights agreements that conflict with the
terms of this Agreement nor permit the exercise of any other registration rights
in a manner that conflicts with the terms of the registration rights granted
hereunder.
4. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. Whenever the Company proposes to register any
securities under the Securities Act, other than pursuant to a Demand
Registration under Section 3 (a "Piggyback Registration"), the Company will give
written notice to all holders of Registrable Securities of its intention to
effect such a registration not later than the earlier to occur of (i) the tenth
day following receipt by the Company of notice of exercise of other demand
registration rights or (ii) 45 days prior to the anticipated filing date.
Subject to the provisions of Sections 4(c) and (d), the Company will include in
such Piggyback Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within ten business
days after the receipt by the applicable holder of Registrable Securities of the
Company's notice. The holders of Registrable Securities will be permitted to
withdraw all or any part of such holder's Registrable Securities from a
Piggyback Registration at any time prior to the date such Piggyback Registration
becomes effective with the SEC. If a Piggyback Registration is an underwritten
offering effected under (i) Section 4(c), all Persons whose securities are
included in the Piggyback Registration will be obligated to sell their
securities on the same terms and conditions as apply to the securities being
issued and sold by the Company or (ii) Section 4(d), all Persons whose
securities are included in the Piggyback Registration will be obligated to sell
their securities on the same terms and conditions as apply to the securities
being sold by the Person or Persons who initiated the Piggyback Registration
under Section 4(d).
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities included in a Piggyback Registration will be paid by the
Company.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten registration on behalf of the Company, and the managing
underwriters advise the Company in
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writing that in their opinion the total number or dollar amount of securities
requested to be included in such registration exceeds the number or dollar
amount of securities which can be sold in such offering without adversely
affecting the offering or the offering price, the Company will include in such
registration: (i) first, all securities the Company proposes to sell, (ii)
second, up to the full number or dollar amount of Registrable Securities
requested to be included in such registration in excess of the number or dollar
amount of securities the Company proposes to sell which, in the opinion of such
underwriters, can be sold without adversely affecting the offering or the
offering price (allocated pro rata among the holders of such Registrable
Securities on the basis of the dollar amount or number of Securities requested
to be included therein by each such holder) and (iii) third, such other
securities (provided such securities are of the same class as the securities
being sold by the Company) as are requested to be included in such registration
equal to the balance, if any, allocated among the holders of such securities in
such proportions as the Company and such holders may agree.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the dollar amount or number of securities requested to be included
in such registration exceeds the dollar amount or number of securities which can
be sold in such offering without adversely affecting the offering or the
offering price, the Company will include in such registration (i) first, the
number or dollar amount of securities which in the opinion of such underwriters
can be sold without adversely affecting the offering or the offering price of
the securities intended to be included therein on behalf of the holders of the
Company's securities, allocated among the holders of such securities in such
proportions as the Company and such holders may agree, and (ii) to the extent of
the balance, if any, the Registrable Securities requested to be included in such
registration, allocated pro rata among the holders of such Registrable
Securities on the basis of the dollar amount or number of securities requested
to be included therein by each such holder.
(e) Underwritten Offering of Different Classes of Securities.
Notwithstanding anything to the contrary in this Section 4, if a Piggyback
Registration is an underwritten offering of a class of securities of the Company
different from the Registrable Securities proposed to be included in such
offering and the managing underwriters advise that in their opinion Registrable
Securities of a different class cannot be included in such offering without
adversely affecting the offering or the offering price, then the holders of the
Registrable Securities shall not be entitled to include Registrable Securities
in such registration.
(f) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the Company will have the sole right to select the
investment banker or investment bankers and manager or managers to administer
the offering.
5. REGISTRATION ON FORM S-3.
As one of its Demand Registration rights provided in Section 3, a holder of
the Registrable Securities shall be entitled to request by a notice in writing
to the Company ("Registration Notice") that the Company register for resale all
or a portion of their Registrable Securities on Form S-3 (or any similar short
form registration) if the Company and the transaction then qualify for the use
of such short form registration. On receipt of the
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Registration Notice, the Company will notify all of the holders of Registrable
Securities entitled to notice of a proposed registration pursuant to Section
3(a) of such request. Upon receipt by the Company of the Registration Notice,
the Company will, subject to Section 6(c) and Section 12(a) use its reasonable
best efforts to file a registration statement on Form S-3 (or any similar short
form registration) in accordance with the terms of this Section 5 as soon as
practicable after receipt of such Registration Notice. The Company will, subject
to Sections 6(c) and 12(a), use its reasonable best efforts to maintain the
effectiveness of the registration statement until the earlier of (i) January 8,
2009 (to the fullest extent permitted by law) or (ii) the date on which the
holders of the Registrable Securities Beneficially Own 5% or less of the Common
Stock. All Registration Expenses shall be borne by the Company, except for
underwriting commissions and discounts attributable to Registrable Securities
sold by the holders thereof, which discounts and commissions shall be paid by
such holders. The Company and other holders of securities of the Company may not
register securities under a registration statement filed pursuant to this
Section 5, without the consent of at least a Majority of the Registrable
Securities. A holder of Registrable Securities that are covered by a
registration statement pursuant to this Section 5 will give the Company at least
48 hours written notice prior to any resales by such holder thereunder.
6. HOLDBACK AGREEMENTS.
(a) Restrictions on Public Sale by Holder of Registrable Securities. Each
holder of Registrable Securities agrees not to effect any public sale or
distribution of equity securities of the Company (other than any distribution of
equity securities, substantially pro rata, to its partners or any public sale or
distribution of Preferred Stock), including a sale pursuant to Rule 144 under
the Securities Act, during the 90-day period beginning on the effective date of
any underwritten Demand Registration or any underwritten Piggyback Registration
in which a holder of Registrable Securities is entitled to participate (except
as part of such underwritten registration), to the full extent of the
Registrable Securities requested by such holder to be included in such
registration statement. Any such restriction as contemplated by this Section
6(a) may only apply once in any twelve month period.
(b) Restrictions on Public Sale by the Company. Except for any resales by
the holder of Registrable Securities made pursuant to Section 5, the Company
agrees not to offer, register or effect any sale or distribution on behalf of
itself or on behalf of another security holder of the Company's equity
securities, or any securities convertible into or exchangeable or exercisable
for such equity securities during the 90-day period beginning on (i) the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or as
part of an employee benefit plan registered pursuant to registrations on Form S-
8 or any successor form to Form S-8) or (ii) the pricing of an underwritten
offering pursuant to a shelf registration statement filed pursuant to Section 5.
Any such restriction as contemplated by this Section 6(b) may only apply once in
any twelve month period.
(c) Deferral of Filing; Suspension of Shelf Registration Statement. The
Company may, subject to the last sentence of this Section 6(c), defer the filing
(but not the preparation) of a registration statement required by Section 3 or
Section 5 until a date not later than 90 days (less the number of days during
the previous twelve months that the use of a prospectus was suspended pursuant
to this Section 6(c) or Section 12(a)) after the date of receipt by the Company
of a request for a Demand Registration if at the time the Company receives such
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request the Company is engaged in confidential negotiations or other
confidential business activities, disclosure of which would be required in such
registration statement (but would not be required if such registration statement
were not filed) and the Board of Directors of the Company determines in good
faith that such disclosure would be materially detrimental to the Company and
its shareholders. A deferral of the filing of a registration statement shall be
filed forthwith if the negotiations or other activities are disclosed or
terminated. In order to defer the filing of a registration statement pursuant to
this Section 6(c), the Company shall promptly, upon determining to seek such
deferral, deliver to each requesting holder a certificate signed by the
President or Chief Financial Officer of the Company stating that the Company is
deferring such filing pursuant to this Section 6(c). Within 20 days after
receiving such certificate, the requesting holder may withdraw such request by
giving notice to the Company; if withdrawn, the request for a Demand
Registration shall be deemed not to have been made for all purposes of this
Agreement. In addition, if the Company receives notice of a proposed sale under
a shelf registration statement filed pursuant to Section 5, the Company may,
subject to the last sentence of this Section 6(c), give notice to the holder
requesting such sale that such sale under such shelf registration statement must
be deferred and not made for up to 90 days (less the number of days during the
previous twelve months that the use of a prospectus was suspended pursuant to
this Section 6(c) or Section 12(a)) after the date of receipt by the Company of
such notice of proposed sale if at the time the Company receives such notice,
the Company is engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required to be made in the
prospectus included in such shelf registration statement (but would not be
required if such sale were not made) in order to prevent such prospectus from
containing any untrue statement of a material fact or omitting to state any
material fact necessary to make the statements therein not misleading and the
Board of Directors of the Company determines in good faith that such disclosure
would be materially detrimental to the Company. A deferral of such proposed sale
pursuant to this Section 6(c) shall be lifted, and the sale may be forthwith
made if the negotiations or other activities are disclosed or terminated. In
order to defer the proposed sale pursuant to this Section 6(c), the Company
shall promptly, upon determining to seek such deferral, deliver to such
requesting holder, a certificate signed by the President or Chief Financial
Officer of the Company stating that the Company is deferring such proposed sale
pursuant to this Section 6(c). The Company may defer the filing of a Demand
Registration Statement only once during any twelve month period.
7. REGISTRATION PROCEDURES.
(a) Whenever the holders of Registrable Securities have requested that any
Registrable Securities be registered in accordance with the terms and conditions
of this Agreement, the Company will use its best efforts to effect the
registration and to permit the sale of such Registrable Securities in accordance
with the intended method of disposition thereof, and pursuant thereto the
Company will as expeditiously as possible:
(i) prepare and file with the SEC, not later than 30 days after
receipt of a request to file a registration statement with respect to such
Registrable Securities, a registration statement with respect to such
Registrable Securities, and use its best efforts to cause such registration
statement to become effective; provided, however, before filing a
registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the counsel selected in accordance
with Section 8(b) by the holders of a Majority of the Registrable
Securities being registered in such
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registration statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel; each such
registration statement will be on a form for which the Company then
qualifies, which is available for the sale of the Registrable Securities in
accordance with the intended method of disposition thereof and which is
reasonably satisfactory to the holders of a Majority of the Registrable
Securities being registered (or the managing underwriters in the case of a
firm or best efforts underwriting offering);
(ii) notify each seller of Registrable Securities of any stop order
issued by the SEC and take all reasonable actions required to prevent the
entry of such stop order or to remove it at the earliest possible time if
entered;
(iii) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a
period of not less than 90 days, or such shorter period as may be required
if all Registrable Securities covered by such registration statement are
sold prior to the expiration of such 90-day period (except in connection
with an underwritten offering, in which case such registration statement
shall be kept effective as long as the underwriters reasonably request in
the underwriting agreement), and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement;
(iv) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities owned
by such seller;
(v) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided, however, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 7(a)(v), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(vi) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vii) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such
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registration statement or any document incorporated therein by reference
contains an untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein not misleading, and
prepare and file promptly with the SEC a supplement or amendment to such
prospectus or any such document incorporated therein by reference so that,
as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
not misleading;
(viii) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed;
(ix) provide a transfer agent and registrar for all Registrable
Securities and a CUSIP number for all such Registrable Securities, in each
case not later than the effective date of such registration statement;
(x) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions in connection
therewith as the holders of a Majority of the Registrable Securities being
registered or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(xi) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(xii) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a Majority of
the Registrable Securities being registered or the managing underwriters
reasonably request; and
(xiii) otherwise use its reasonable best efforts to 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
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first month after the effective date of the
Registration Statement, which earnings statement will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request.
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8. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities), printing
expenses, messenger, telephone and delivery expenses, and fees and disbursements
of counsel for the Company and counsel for the sellers of the Registrable
Securities (subject to the provisions of Section 8(b)) and of all independent
certified public accountants (including the expenses of any special audit or
"cold comfort" letters required by or incident to such performance),
underwriters (excluding discounts and commissions but including liability
insurance if the Company so desires or if the underwriters so require), the
reasonable fees and expenses of any special experts retained by the Company or
at the request of the managing underwriters in connection with such registration
and fees and expenses of other Persons retained by the Company (all such
expenses being herein called "Registration Expenses"), will be borne as provided
in this Agreement, except that the Company will, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the expense of liability insurance referred to above and the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed.
(b) In connection with each registration hereunder, the Company will
reimburse the holders of Registrable Securities being registered in such
registration for the reasonable fees and disbursements of no more than one
counsel (or more than one counsel if an actual conflict exists among such
selling holders) chosen by the holders of a Majority of the Registrable
Securities being registered.
9. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by Company. The Company agrees to indemnify to the full
extent permitted by law, each holder of Registrable Securities, its officers,
directors and constituent partners and each Person who controls such holder
(within the meaning of the Securities Act and the Exchange Act) against all
losses, claims, damages, liabilities and expenses (or actions in respect
thereof) arising out of or based upon any untrue or alleged untrue statement of
a material fact contained in any registration statement, prospectus or
preliminary prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are contained in any
information furnished in writing to the Company by such holder expressly for use
therein or caused by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. The Company will reimburse each holder of Registrable Securities, its
officers, directors, constituent partners and controlling Persons for any legal
and other expenses as incurred in connection with investigating or defending any
such losses, claims, damages, liabilities, expenses or actions. In connection
with a firm commitment or best efforts underwritten offering, the Company will
indemnify the underwriters or agents, their officers,
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directors, constituent partners and each Person who controls such underwriters
(within the meaning of the Securities Act and the Exchange Act) or agents to the
same extent as provided above (or such greater extent as may be customarily
required by the managing underwriters) with respect to the indemnification of
the holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. In connection with
any registration statement in which a holder of Registrable Securities is
participating, each such holder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and agrees to
indemnify, to the extent permitted by law, the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act and the Exchange Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of a material fact or any omission or alleged omission of a material fact
required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any written information or affidavit
furnished by such holder specifically for such registration statement and then
only to the extent of the net proceeds received by such holder of Registrable
Securities. The holders of Registrable Securities will reimburse, to the extent
of the net proceeds received by the holders of Registrable Securities, the
Company, its officers, directors and controlling persons for any legal and other
expenses as incurred in connection with investigation or defending any such
losses, claims, damages, liabilities, expenses or actions.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification (but omission of
such notice shall not relieve the indemnifying party from liability hereunder
except to the extent such indemnifying party is actually prejudiced by such
failure to give notice) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest may exist between such indemnified and
indemnifying parties with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is not assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of an unconditional release
from all liability in respect to such claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless an actual conflict of interest exists between such indemnified party and
any other of such indemnified parties with respect to such claim, in which event
the indemnifying party will be obligated to pay the fees and expenses of such
additional counsel or counsels.
(d) Contribution. If the indemnification provided for in Section 9(a) is
unavailable or insufficient to hold harmless each of the indemnified parties
against any losses, claims, damages, liabilities and expenses (or actions in
respect thereof) to which such persons may become subject under the Securities
Act, then the indemnifying party shall, in lieu of indemnifying each party
entitled to indemnification hereunder, contribute to the amount paid or
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payable by such party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and such indemnified persons on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses. The relative fault of such persons 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 or concerning the indemnifying party on the one hand,
or by such indemnified person on the other, and such person's 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 contribution pursuant to this Section 9(d) were determined by pro
rata allocation or by any other allocation that does not take into account the
equitable considerations referred to in this Section 9(d). No person guilty of
fraudulent misrepresentation within the meaning of the Act shall be entitled to
contribution from any person that is not guilty of such fraudulent
misrepresentation.
10. RULE 144.
The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any holder of Registrable Securities, make
publicly available such information), and it will take such further action as
any holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any holder of Registrable Securities,
the Company will deliver to such holder a written statement that it has complied
with such requirements.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any underwritten registration hereunder unless
such Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all customary
questionnaires, powers of attorney, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
12. MISCELLANEOUS.
(a) Right to Suspend. The Company may, by notice in writing to each holder
of Registrable Securities, require the holder of Registrable Securities to
suspend use of any prospectus included in a registration statement filed
hereunder if the Company reasonably determines that it contains an untrue
statement of a material fact or omits to state any material fact necessary to
make the statements therein not misleading or that any transaction in which the
Company is engaged or proposes to engage would require an amendment to such
registration statement or a supplement to such prospectus (including any such
amendment or supplement made through incorporation by reference to a report
filed under Section 13 of the
12
Exchange Act). Each holder of Registrable Securities agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in this Section 12(a), such holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such holder's receipt of the copies
of a properly supplemented or amended prospectus, and, if so directed by the
Company, such holder will deliver to the Company all copies, other than
permanent file copies, then in such holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event the Company gives any such notice, the time period
mentioned in Section 7(a)(iii), if applicable, will be extended by the number of
days during the period from and including the date of the giving of such notice
to and including the date when each seller of Registrable Securities covered by
such registration statement has received the copies of such supplemented or
amended prospectus. The Company agrees to use its reasonable best efforts to
cause any suspension of use of any prospectus pursuant to this paragraph to be
as short a period of time as possible.
(b) Remedies. Each holder of Registrable Securities, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of at least a Majority of the outstanding Registrable
Securities.
(d) Registrable Securities Held by the Company or its Affiliates. For the
purposes of Section 3(b), when determining whether the required minimum
principal amount or number of Registrable Securities has been requested to be
included in a Demand Registration, Registrable Securities held by the Company or
any affiliate thereof (other than a Purchaser, if it is such an affiliate),
unless they are requested to be included in a registration statement, will not
be counted for the purposes of determining whether such required minimum number
or principal amount of Registrable Securities has been requested to be so
included. Whenever the consent or approval of holders of all or any specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or any of its affiliates (other than a Purchaser
if it is such an affiliate) will not be counted in determining whether such
consent or approval was given by such holders.
(e) Notices. All notices hereunder shall be in writing and shall be
effective (a) on the day on which delivered if delivered personally or
transmitted by telex or telegram or telecopier with evidence of receipt, (b) one
business day after the date on which the same is delivered to a nationally
recognized overnight courier service with evidence of receipt, or (c) five
business days after the date on which the same is deposited, postage prepaid, in
the U.S. mail, sent by certified or registered mail, return receipt requested,
and addressed to the party to be notified at the address indicated below for the
Company, or at the address for the holder of the Registrable Securities set
forth in a registry maintained by the Company, or at such other address and/or
telecopy or telex number and/or to the attention of such other person as the
Company or the holder of the Registrable Securities may designate by ten-day
advance written notice.
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(f) Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
holders of Registrable Securities.
(g) 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 will be deemed to be an original and all of which taken
together will constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(i) Governing Law; Jurisdiction. This Agreement will be governed by and
construed in accordance with the laws of the State of Texas, without giving
effect to conflict of law principles. Any holder of Registrable Securities may
bring any action or proceeding to enforce or arising out of this Agreement or in
the instruments and agreements annexed hereto in any court of competent
jurisdiction.
(j) 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 will not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Attorney's Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof or thereof is validly
asserted as a defense, the successful party will be entitled to recover
reasonable attorney's fees in addition to any other available remedy.
REMAINDER OF PAGE INTENTIONALLY BLANK.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
EEX CORPORATION
/s/ Richard S. Langdon
--------------------------------------------------
Richard S. Langdon
Executive Vice President, Finance and
Administration and Chief Financial Officer
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By: Warburg, Pincus & Co.
Its: General Partner
/s/ Jeffrey A. Harris
--------------------------------------------------
Jeffrey A. Harris
Partner
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I,
C.V.
By: Warburg, Pincus & Co.
Its: General Partner
/s/ Jeffrey A. Harris
--------------------------------------------------
Jeffrey A. Harris
Partner
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II,
C.V.
By: Warburg, Pincus & Co.
Its: General Partner
/s/ Jeffrey A. Harris
--------------------------------------------------
Jeffrey A. Harris
Partner
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WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III,
C.V.
By: Warburg, Pincus & Co.
Its: General Partner
/s/ Jeffrey A. Harris
--------------------------------------------------
Jeffrey A. Harris
Partner
16