EXHIBIT 8
REGISTRATION RIGHTS AGREEMENT
dated as of November 13, 2001
among
MEMC ELECTRONIC MATERIALS, INC.
TPG WAFER HOLDINGS LLC
and
the Guarantors specified herein
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of November 13, 2001,
by and between MEMC Electronic Materials, Inc., a Delaware corporation (the
"Company"), the guarantors included on the signature lines hereto (the
"Guarantors" and together with the Company, the "Company Parties") and TPG Wafer
Holdings LLC, a Delaware limited liability company (together with its permitted
assigns, "TPG" or the "Investor").
W I T N E S S E T H:
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WHEREAS, the Company and the Investor have entered into a Restructuring
Agreement, dated as of November 13, 2001 (the "Restructuring Agreement"),
pursuant to which (i) the Investor has agreed to exchange shares of common stock
of MEMC Holdings Corporation, a Delaware corporation, for shares of the
Company's Series A Cumulative Convertible Preferred Stock, $0.01 par value (the
"Series A Preferred Stock"), having the rights, preferences, privileges and
restrictions set forth in the form of Certificate of Designations attached as
Exhibit A to the Restructuring Agreement or in a form as is otherwise agreed
upon by the Investor and the Company and (ii) the Investor has agreed to cause
the Notes Designees (as defined in the Restructuring Agreement) to deliver such
Loans (as defined in the Restructuring Agreement) to be agreed upon by the
Company and the Investor, in return for the issuance by the Company to such
Notes Designees, as specified by the Investor, of (A) Senior Subordinated
Secured Notes Due 2007 of the Company (the "Notes") having the terms and
conditions set forth in the form of Indenture attached as Exhibit E to the
Restructuring Agreement (the "Indenture") and fully and unconditionally
guaranteed (the "Guarantee") by the Guarantors (the Notes, together with the
Guarantee, the "Note Securities") and (B) detachable warrants (the "Warrants")
having the terms set forth in the form of Warrant Certificate attached as
Exhibit G to the Restructuring Agreement or in a form as is otherwise agreed
upon by the Company and the Investor; and
WHEREAS, as an inducement to the Investor entering into the Restructuring
Agreement, the Investor has required that the Company Parties agree, and the
Company Parties have agreed, to provide the rights set forth in this Agreement;
and
WHEREAS, the consummation of the Initial Restructuring is conditioned upon,
among other things, the execution and delivery of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
covenants and agreements of the parties hereto, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS.
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1.1. Capitalized Terms. Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Restructuring
Agreement.
1.2. Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Adverse Disclosure" means public disclosure of material non-public
information, disclosure of which, in the Board of Directors' good faith
judgment, after consultation with independent outside counsel to the Company,
(i) would be required to be made in any Registration Statement filed with the
SEC by the Company Parties so that such Registration Statement would not be
materially misleading; (ii) would not be required to be made at such time but
for the filing of such Registration Statement; and (iii) would materially and
adversely affect a proposed financing, reorganization, recapitalization, merger,
consolidation, acquisition or similar transaction, or otherwise materially and
adversely affect the Company Parties.
"Agreement" has the meaning set forth in the preamble hereto.
"Board of Directors" means the board of directors of the Company.
"Class" has the meaning set forth in the definition of "Registrable
Securities."
"Common Stock" means the Company's common stock, par value $0.01 per share.
"Company" has the meaning set forth in the preamble and shall include the
Company's successors by merger, acquisition, reorganization or otherwise.
"Company Public Sale" has the meaning set forth in Section 2.3(a).
"Demand Notice" has the meaning set forth in Section 2.2(e).
"Demand Period" has the meaning set forth in Section 2.2(d).
"Demand Registration" has the meaning set forth in Section 2.2(a).
"Demand Registration Statement" has the meaning set forth in Section
2.2(a).
"Effectiveness Date" means the 330th day following the Initial Closing
Date.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
"Existing Registration Rights Agreement" means the Registration Rights
Agreement, dated as of July 12, 1995, by and between the Company and VEBA
Corporation, as successor to ▇▇▇▇ Corporation, as amended.
"Filing Date" means the 270th day following the Initial Closing Date.
"Guarantee" has the meaning set forth in the recitals hereto.
"holder" means any holder of Registrable Securities (whether or not
acquired pursuant to the Restructuring Agreement) who is a party hereto or who
succeeds to rights hereunder pursuant to Section 3.5.
"Investor" has the meaning set forth in the preamble hereto.
"Material Adverse Change" means (i) any general suspension of trading in,
or limitation on prices for, securities on any national securities exchange or
in the over-the-counter market in the United States of America; (ii) the
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States of America or Delaware; (iii) a material outbreak or
escalation of armed hostilities or other international or national calamity
involving the United States of America or Delaware or the declaration by the
United States or Delaware of a national emergency or war or a change in national
or international financial, political or economic conditions; and (iv) any
event, change, circumstance or effect that is or is reasonably likely to be
materially adverse to the business, properties, assets, liabilities, condition
(financial or otherwise), operations, results of operations or prospects of the
Company and its Subsidiaries taken as a whole.
"NASD" means the National Association of Securities Dealers, Inc.
"Notes" has the meaning set forth in the preamble hereto.
"Note Securities" has the meaning set forth in the recitals hereto.
"Person" means any individual, firm, limited liability company or
partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"Piggyback Registration" has the meaning set forth in Section 2.3(a).
"Prospectus" means the prospectus included in any Registration Statement,
all amendments and supplements to such prospectus, including post-effective
amendments, and all other material incorporated by reference in such prospectus.
"Registrable Securities" means (i) any shares of Series A Preferred Stock,
any shares of Common Stock or other securities issuable upon the conversion of
or as a dividend with respect to the Series A Preferred Stock, (ii) any
Warrants, any shares of Common Stock or other securities issuable upon the
exercise of the Warrants, (iii) the Note Securities, (iv) any other Common Stock
beneficially owned on the date hereof, or hereafter acquired or purchased by the
Investor or any of its Affiliates, including without limitation any Common Stock
(A) acquired by the Investor or any of its Affiliates as a result of the
transactions contemplated by the E.ON Purchase Agreement or upon exercise of any
rights to purchase Common Stock and (B) purchased on the open market by the
Investor or any of its Affiliates, and (v) in each case, any securities that may
be issued or distributed or be issuable in respect of any such Registrable
Securities by way of conversion, dividend, stock split or other distribution,
merger, consolidation, exchange, recapitalization or reclassification or similar
transaction; provided, however, that any such Registrable Securities shall cease
to be Registrable Securities to the extent (i) a Registration Statement with
respect to the sale of such Registrable Securities has been declared effective
under the Securities Act and such Registrable Securities have been disposed of
in accordance with the plan of distribution set forth in such Registration
Statement, (ii) such Registrable Securities have been sold pursuant to Rule 144
(or any similar provisions then in force) under the Securities Act or (iii) such
Registrable Securities shall have been otherwise transferred and new
certificates for them not bearing a legend restricting transfer under the
Securities Act shall have been delivered by the Company and such securities may
be publicly resold without Registration under the Securities Act. For purposes
of this Agreement, a "Class" of Registrable Securities means each of (a) the
Series A Preferred Stock and any shares of Common Stock or other securities
issued upon the conversion of the Series A Preferred Stock, (b) the Warrants and
any shares of Common Stock or other securities issued upon the exercise of the
Warrants, (c) the Note Securities and (d) the Common Stock referred to in clause
(iv) above. Each Class shall also include any securities that may be issued or
distributed or be issuable in respect of such Class as contemplated by clause
(v) above. A "percentage" (or a "majority") of the Registrable Securities (or,
where applicable, of any other securities) shall be determined (x) based on the
number of shares of such securities in the cases of (A) the Class consisting of
Series A Preferred Stock and Common Stock issued upon conversion of the Series A
Preferred Stock collectively, computed on the assumption that all Series A
Preferred Stock outstanding on the date of determination had been converted as
of such date, (B) the Class consisting of Warrants and Common Stock issued upon
the exercise of the Warrants collectively, computed on the assumption that all
Warrants outstanding on the date of determination had been exercised as of such
date, and (C) the Class consisting of other Common Stock, and (y) based on the
principal amount of such securities, in the case of the classes consisting of
Note Securities.
"Registration" means a registration with the SEC of the Company Parties'
securities for offer and sale to the public under a Registration Statement. The
term "Register" shall have a correlative meaning.
"Registration Expenses" has the meaning set forth in Section 2.8.
"Registration Statement" means any registration statement of the Company
Parties filed with, or to be filed with, the SEC under the rules and regulations
promulgated under the Securities Act, including the related Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Restructuring Agreement" has the meaning set forth in the recitals hereto.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor thereto, and any rules and regulations promulgated thereunder, all as
the same shall be in effect from time to time.
"Series A Preferred Stock" has the meaning set forth in the preamble
hereto.
"Shelf Period" has the meaning set forth in Section 2.1(b).
"Shelf Registration" means a Registration effected pursuant to Section 2.1.
"Shelf Registration Statement" means a Registration Statement of the
Company Parties filed with the SEC on either (i) Form S-3 (or any successor form
or other appropriate form under the Securities Act) or (ii) if the Company
Parties are not permitted to file a resale Registration Statement on Form S-3,
an evergreen Registration Statement on Form S-1 (or any successor form or other
appropriate form under the Securities Act), in each case for an offering to be
made on a continuous basis pursuant to Rule 415 under the Securities Act (or any
similar rule that may be adopted by the SEC) covering the Registrable
Securities, as applicable.
"Shelf Suspension" has the meaning set forth in Section 2.1(c).
"Underwritten Offering" means a Registration in which securities of the
Company Parties are sold to an underwriter or underwriters on a firm commitment
basis for reoffering to the public.
"Warrants" has the meaning set forth in the recitals hereto.
1.3. General Interpretive Principles. Whenever used in this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
any noun or pronoun shall be deemed to include the plural as well as the
singular and to cover all genders. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
be construed to affect the meaning, construction or effect hereof. Unless
otherwise specified, the terms "hereof," "herein" and similar terms refer to
this Agreement as a whole (including the exhibits, schedules and disclosure
statements hereto), and references herein to Sections refer to Sections of this
Agreement. Words of inclusion shall not be construed as terms of limitation
herein, so that references to "include", "includes" and "including" shall not be
limiting and shall be regarded as references to non-exclusive and
non-characterizing illustrations.
SECTION 2. REGISTRATION RIGHTS
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2.1. Shelf Registration.
(a) Filing. On or before the Filing Date, the Company Parties shall file
with the SEC 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 such holders and set forth in the Shelf
Registration Statement and, thereafter, shall use its best efforts to cause such
Shelf Registration Statement to be declared effective under the Securities Act
by the Effectiveness Date. If, on the Filing Date, the Company Parties do not
qualify to file a Shelf Registration Statement under the Securities Act, then
the provisions of Section 2.2 shall apply, but at any time thereafter that the
Company Parties do so qualify, it shall, as promptly as practicable, file a
Shelf Registration Statement and use its best efforts to cause the Shelf
Registration Statement to be declared effective.
(b) Continued Effectiveness. The Company Parties shall use their best
efforts to keep such Shelf Registration Statement continuously effective under
the Securities Act in order to permit the Prospectus forming a part thereof to
be usable by holders until such time as (i) the Investor and its Affiliates hold
no Series A Preferred Stock and less than 1.0% of the Conversion Shares
(assuming conversion of the Series A Preferred Stock), (ii) the Note Designees
hold less than 1.0% of the Notes, (iii) the Note Designees hold no Warrants and
less than 1.0% of the Warrant Shares (assuming exercise of the Warrants) and
(iv) the Investor and its Affiliates hold less than 1.0% of the number of shares
of Common Stock acquired by the Investor or any of its Affiliates as a result of
the transactions contemplated by the E.ON Purchase Agreement (such period of
effectiveness, the "Shelf Period"). Subject to Section 2.1(c), the Company
Parties shall not be deemed to have used their best efforts to keep the Shelf
Registration Statement effective during the Shelf Period if the Company Parties
voluntarily take any action or omit to take any action that would result in
holders of the Registrable Securities covered thereby not being able to offer
and sell any Registrable Securities pursuant to such Shelf Registration
Statement during the Shelf Period, unless such action or omission is required by
applicable law.
(c) Suspension of Registration. If the continued use of such Shelf
Registration Statement at any time would require the Company to make an Adverse
Disclosure, the Company may, upon giving prompt written notice of such action to
the holders, suspend use of the Shelf Registration Statement (a "Shelf
Suspension"); provided, however, that the Company shall not be permitted to
exercise a Shelf Suspension (i) more than three times during any 18 month period
or (ii) for a period exceeding 40 days on any one occasion. In the case of a
Shelf Suspension, the holders agree to suspend use of the applicable Prospectus
in connection with any sale or purchase of, or offer to sell or purchase,
Registrable Securities, upon receipt of the notice referred to above. The
Company shall immediately notify the holders upon the termination of any Shelf
Suspension, amend or supplement the Prospectus, if necessary, so it does not
contain any untrue statement or omission and furnish to the holders such numbers
of copies of the Prospectus as so amended or supplemented as the holders may
reasonably request. The Company agrees, if necessary, to supplement or make
amendments to the Shelf Registration Statement, if required by the registration
form used by the Company Parties for the Shelf Registration or by the
instructions applicable to such registration form or by the Securities Act or
the rules or regulations promulgated thereunder or as may reasonably be
requested by the holders of a majority of any Class of the Registrable
Securities then outstanding. Each Company Party represents that, as of the date
hereof, it has no knowledge of any circumstance that would reasonably be
expected to cause it to exercise its rights under this Section 2.1(c).
(d) Underwritten Offering. If the holders of not less than a majority of
any Class of Registrable Securities included in any offering pursuant to such
Shelf Registration Statement so elect, such offering of Registrable Securities
shall be in the form of an Underwritten Offering, and the Company Parties shall
amend or supplement the Shelf Registration Statement for such purpose. The
holders of a majority of the Class of such Registrable Securities included in
such Underwritten Offering shall have the right to select the managing
underwriter or underwriters to administer such offering; provided, that such
managing underwriter or underwriters shall be reasonably acceptable to the
Company Parties.
2.2. Demand Registrations.
(a) Demand by Holders. If, on or at any time after the Effectiveness Date,
the Shelf Registration Statement is not effective under the Securities Act or is
not available for use by the holders, then at any time thereafter the holders of
not less than 25% of any Class of Registrable Securities may make a written
request to the Company for Registration of Registrable Securities held by such
holders and any other holders of Registrable Securities; provided, that the
estimated market value or stated value of the Registrable Securities to be so
Registered in at least $10 million in the aggregate at the time such request is
made. Any such requested Registration shall hereinafter be referred to as a
"Demand Registration." Each request for a Demand Registration shall specify the
kind and aggregate amount of Registrable Securities to be Registered and the
intended methods of disposition thereof. Within 30 days of a request for a
Demand Registration, the Company Parties shall file a Registration Statement
relating to such Demand Registration (a "Demand Registration Statement"), and
shall use their best efforts to cause such Demand Registration Statement to
promptly be declared effective under (i) the Securities Act and (ii) the "Blue
Sky" laws of such jurisdictions as any holder of Registrable Securities being
registered under such Registration or any underwriter, if any, reasonably
requests.
(b) Limitation on Demand Registrations. Subject to Section 2.2(h), in no
event shall the Company Parties be required to effect more than three Demand
Registrations per Class of Registrable Securities.
(c) Demand Withdrawal. A holder may withdraw its Registrable Securities
from a Demand Registration at any time prior to the effectiveness of the
applicable Demand Registration Statement. Upon receipt of notices from all
holders to such effect, the Company Parties shall cease all efforts to secure
effectiveness of the applicable Demand Registration Statement and such
Registration nonetheless shall be deemed a Demand Registration for purposes of
Section 2.2(b) unless (i) the withdrawing holders shall have paid or reimbursed
the Company Parties for all of the reasonable and documented-out-of pocket fees
and expenses paid by the Company Parties in connection with the Registration of
such withdrawn Registrable Securities or (ii) the withdrawal is made following
the occurrence of a Material Adverse Change.
(d) Effective Registration. The Company Parties shall be deemed to have
effected a Demand Registration if the Demand Registration Statement is declared
effective by the SEC and remains effective until the completion of the
distribution of Registrable Securities included therein, or if such Registration
Statement relates to an Underwritten Offering, such longer period as in the
opinion of counsel for the underwriter or underwriters a Prospectus is required
by law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer (the applicable period, the "Demand Period"). No Demand
Registration shall be deemed to have been effected if (i) during the Demand
Period such Registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental agency or court or
(ii) the conditions to closing specified in the underwriting agreement, if any,
entered into in connection with such Registration are not satisfied other than
by reason of a wrongful act, misrepresentation or breach of such applicable
underwriting agreement by the Investor.
(e) Demand Notice. Promptly upon receipt of any request for a Demand
Registration pursuant to Section 2.2(a) (but in no event more than 5 Business
Days thereafter), the Company Parties shall deliver a written notice (a "Demand
Notice") of any such Registration request to all other holders of Registrable
Securities of the same Class or classes to be included in such Demand
Registration, and the Company Parties shall include in such Demand Registration
all such Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 10 Business Days after the date
that the Demand Notice has been delivered. All requests made pursuant to this
Section 2.2(e) shall specify the Class and aggregate amount of Registrable
Securities to be registered and the intended method of distribution of such
securities.
(f) Delay in Filing; Suspension of Registration. If the filing, initial
effectiveness or continued use of a Demand Registration Statement at any time
would require the Company to make an Adverse Disclosure, the Company may, upon
giving prompt written notice of such action to the holders, delay the filing or
initial effectiveness of, or suspend use of, the Demand Registration Statement
(a "Demand Suspension"); provided, however, that the Company shall not be
permitted to exercise a Demand Suspension (i) more than three times during any
18 month period or (ii) for a period exceeding 40 days on any one occasion. In
the case of a Demand Suspension, the holders agree to suspend use of the
applicable Prospectus in connection with any sale or purchase, or offer to sell
or purchase, Registrable Securities, upon receipt of the notice referred to
above. The Company shall immediately notify the holders upon the termination of
any Demand Suspension, amend or supplement the Prospectus, if necessary, so it
does not contain any untrue statement or omission and furnish to the holders
such numbers of copies of the Prospectus as so amended or supplemented as the
holders may reasonably request. The Company agrees, if necessary, to supplement
or make amendments to the Demand Registration Statement, if required by the
registration form used by the Company Parties for the Demand Registration or by
the instructions applicable to such registration form or by the Securities Act
or the rules or regulations promulgated thereunder or as may reasonably be
requested by the holders of a majority of the Registrable Securities that are
included in such Demand Registration Statement. Each of the Company Parties
represents that, as of the date hereof, it has no knowledge of any circumstance
that would reasonable be expected to cause it to exercise its rights under this
Section 2.2(f).
(g) Underwritten Offering. If the holders of not less than a majority of
any Class of Registrable Securities requesting a Demand Registration so elect,
such offering of Registrable Securities shall be in the form of an Underwritten
Offering. The holders of a majority of the Class of such Registrable Securities
included in such Underwritten Offering shall have the right to select the
managing underwriter or underwriters to administer the offering; provided, that
such managing underwriter or underwriters shall be reasonably acceptable to the
Company Parties.
(h) Priority of Securities Registered Pursuant to Demand Registrations. If
the managing underwriter or underwriters of a proposed Underwritten Offering of
a Class of Registrable Securities included in a Demand Registration (or, in the
case of a Demand Registration not being underwritten, the holders of a majority
of a Class of Registrable Securities included therein), advise the Board of
Directors in writing that, in its or their opinion, the number of securities of
such Class requested to be included in such Demand Registration exceeds the
number which can be sold in such offering without being likely to have a
significant adverse effect on the price, timing or distribution of the
securities offered or the market for the securities offered, the number of
Registrable Securities of such Class to be included in such Demand Registration
shall be allocated pro rata among the holders that have requested to participate
in such Demand Registration on the basis of the relative number of Registrable
Securities of such Class then held by each such holder, to the extent necessary
to reduce the total number of Registrable Securities of such Class to be
included in such offering to the number recommended by the managing underwriter
or underwriters or such holders, provided, that any securities thereby allocated
to a holder that exceed such holder's request shall be reallocated among the
remaining requesting holders in like manner. To the extent that Registrable
Securities so requested to be registered are excluded from the offering, then
the holders of such Registrable Securities shall have the right to one
additional Demand Registration under this Section 2.2.
(i) Registration Statement Form. Registrations under this Section 2.2 shall
be on such appropriate form of the SEC (i) as shall be selected by the Company
Parties and as shall be reasonably acceptable to the holders of a majority of
each Class of Registrable Securities requesting a Demand Registration and (ii)
as shall permit the disposition of such Registrable Securities in accordance
with the intended method or methods of disposition specified in such holders'
requests for such Registration.
2.3. Piggyback Registrations.
(a) Participation. If the Company Parties at any time propose to file a
Registration Statement under the Securities Act with respect to any offering of
their securities for its own account or for the account of any other Persons
(other than (i) a Registration under Section 2.1 or 2.2, (ii) a Registration on
Form S-4 or S-8 or any successor form to such Forms or (iii) a Registration of
securities solely relating to an offering and sale to employees or directors of
the Company Parties pursuant to any employee stock plan or other employee
benefit plan arrangement) (a "Company Public Sale"), then, as soon as
practicable (but in no event less than 45 days prior to the proposed date of
filing such Registration Statement), the Company Parties shall give written
notice of such proposed filing to all holders of Registrable Securities that are
equity securities in the case of a Company Public Sale of equity securities or
Registrable Securities that are debt securities in the case of a Company Public
Sale of debt securities, and such notice shall offer the holders of such
Registrable Securities the opportunity to Register under such Registration
Statement such number of Registrable Securities as each such holder may request
in writing (a "Piggyback Registration"). Subject to Section 2.3(b), the Company
Parties shall include in such Registration Statement all such Registrable
Securities which are requested to be included therein within 15 days after the
receipt by such holder of any such notice; provided, however, that if at any
time after giving written notice of its intention to Register any securities and
prior to the effective date of the Registration Statement filed in connection
with such Registration, the Company Parties shall determine for any reason not
to Register or to delay Registration of such securities, the Company Parties
may, at their election, give written notice of such determination to each holder
of Registrable Securities and, thereupon, (i) in the case of a determination not
to Register, shall be relieved of their obligation to Register any Registrable
Securities in connection with such Registration (but not from its obligation to
pay the Registration Expenses in connection therewith), without prejudice,
however, to the rights of any holders of Registrable Securities entitled to
request that such Registration be effected as a Demand Registration under
Section 2.2, and (ii) in the case of a determination to delay Registering, in
the absence of a request for a Demand Registration, shall be permitted to delay
Registering any Registrable Securities, for the same period as the delay in
Registering such other securities. If the offering pursuant to such Registration
Statement is to be underwritten, then each holder making a request for a
Piggyback Registration pursuant to this Section 2.3(a) must, and the Company
Parties shall make such arrangements with the managing underwriter or
underwriters so that each such holder may, participate in such Underwritten
Offering. If the offering pursuant to such Registration Statement is to be on
any other basis, then each holder making a request for a Piggyback Registration
pursuant to this Section 2.3(a) must, and the Company Parties will make such
arrangements so that each such holder may, participate in such offering on such
basis. Each holder of Registrable Securities shall be permitted to withdraw all
or part of such holder's Registrable Securities from a Piggyback Registration at
any time prior to the effective date thereof.
(b) Priority of Piggyback Registration. If the managing underwriter or
underwriters of any proposed Underwritten Offering of a Class of Registrable
Securities included in a Piggyback Registration informs the Company Parties and
the holders of such Class of Registrable Securities in writing that, in its or
their opinion, the number of securities of such Class which such holders and any
other Persons intend to include in such offering exceeds the number which can be
sold in such offering without being likely to have a significant adverse effect
on the price, timing or distribution of the securities offered or the market for
the securities offered, then the securities to be included in such Registration
shall subject to the last sentence of this Section 2.3(b), be (i) first, 100% of
the securities of such Class that the Company Parties or (subject to Section
2.7) any Person (other than a holder of Registrable Securities) exercising a
contractual right to demand Registration, as the case may be, proposes to sell,
and (ii) second, and only if all the securities referred to in clause (i) have
been included, the number of Registrable Securities of such Class that, in the
opinion of such managing underwriter or underwriters, can be sold without having
such adverse effect, with such number to be allocated pro rata among the holders
that have requested to participate and (iii) third, and only if all of the
Registrable Securities referred to in clause (ii) have been included in such
Registration, any other securities eligible for inclusion in such Registration.
Notwithstanding anything to the contrary in this Section 2.3(b), the Registrable
Securities to be included in a Piggyback Registration shall not be reduced below
25% of the total number of securities included in such Piggyback Registration
and, if necessary in order to meet such 25% threshold, Registrable Securities
that are the subject of request for participation in such Piggyback Registration
shall be included in such Piggyback Registration, in lieu of those to be
included pursuant to clause (i) above, allocated pro rata among the holders of
Registrable Securities that have requested to participate in such Registration
based on the relative number of Registrable Securities of such Class then held
by each such holder (provided that any securities thereby allocated to a holder
that exceed such holder's request shall be reallocated among the remaining
requesting holders in like manner).
(c) No Effect on Demand Registrations. No Registration of Registrable
Securities effected pursuant to a request under this Section 2.3 shall be deemed
to have been effected pursuant to Sections 2.1 and 2.2 or shall relieve the
Company of its obligations under Sections 2.1 or 2.2.
2.4. Black-out Periods
(a) Black-out Periods for Holders. In the event of a Company Public Sale of
the Company's equity securities in an Underwritten Offering, the holders of
Registrable Securities agree, if requested by the managing underwriter or
underwriters in such Underwritten Offering, not to effect any public sale or
distribution of any securities (except, in each case, as part of the applicable
Registration, if permitted) that are the same as or similar to those being
Registered in connection with such Company Public Sale, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period beginning seven days before, and ending 90 days (or such lesser period as
may be permitted by the Company or such managing underwriter or underwriters)
after, the effective date of the Registration Statement filed in connection with
such Registration, to the extent timely notified in writing by the Company or
the managing underwriter or underwriters.
(b) Black-out Period for the Company and Others. In the case of a
Registration of Registrable Securities pursuant to Section 2.1 or 2.2 for an
Underwritten Offering, the Company Parties agree, if requested by the holders of
a majority of a Class of Registrable Securities to be included in such
Registration or the managing underwriter or underwriters, not to effect any
public sale or distribution of any securities which are the same as or similar
to those being Registered, or any securities convertible into or exchangeable or
exercisable for such securities, during the period beginning seven days before,
and ending 90 days (or such lesser period as may be permitted by such holders or
such managing underwriter or underwriters) after, the effective date of the
Registration Statement filed in connection with such Registration (or, in the
case of an offering under a Shelf Registration Statement, the date of the
closing under the underwriting agreement in connection therewith), to the extent
timely notified in writing by a holder of Registrable Securities covered by such
Registration Statement or the managing underwriter or underwriters.
Notwithstanding the foregoing, the Company Parties may effect a public sale or
distribution of securities of the type described above and during the periods
described above if such sale or distribution is made pursuant to Registrations
on Form S-4 or S-8 or any successor form to such Forms or as part of any
Registration of securities for offering and sale to employees or directors of
the Company Parties pursuant to any employee stock plan or other employee
benefit plan arrangement. The Company Parties agree to use their best efforts to
obtain from the Company Parties' officers and directors and each other holder of
restricted securities of the Company Parties which securities are the same as or
similar to the Registrable Securities being Registered, or any restricted
securities convertible into or exchangeable or exercisable for any of such
securities, an agreement not to effect any public sale or distribution of such
securities during any such period referred to in this paragraph, except as part
of any such Registration, if permitted. Without limiting the foregoing (but
subject to Section 2.7), if after the date hereof the Company Parties grant any
Person (other than a holder of Registrable Securities) any rights to demand or
participate in a Registration, the Company Parties agree that the agreement with
respect thereto shall include such Person's agreement to comply with any
blackout period required by this Section as if it were a Company Party
hereunder.
2.5. Registration Procedures.
(a) In connection with the Company Parties' obligations under Sections 2.1,
2.2 and 2.3, the Company Parties will use their best efforts to effect such
Registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of distribution thereof as expeditiously as
possible, and in connection therewith the Company Parties will:
(i) prepare the required Registration Statement including all exhibits
and financial statements required under the Securities Act to be filed
therewith, and before filing a Registration Statement or Prospectus, or any
amendments or supplements thereto, (x) furnish to the underwriters, if any,
and to the holders of the Registrable Securities covered by such
Registration Statement, copies of all documents prepared to be filed, which
documents will be subject to the review of such underwriters and such
holders and their respective counsel and (y) except in the case of a
Registration under Section 2.3, not file any Registration Statement or
Prospectus or amendments or supplements thereto to which the holders of a
majority of any Class of Registrable Securities covered by such
Registration Statement or the underwriters, if any, shall reasonably
object;
(ii) as soon as possible (in the case of a Demand Registration, no
later than 30 days after a request for a Demand Registration) file with the
SEC a Registration Statement relating to the Registrable Securities
including all exhibits and financial statements required by the SEC to be
filed therewith, and use its best efforts to cause such Registration
Statement to become effective under the Securities Act;
(iii) prepare and file with the SEC such amendments and post-effective
amendments to such Registration Statement and supplements to the Prospectus
as may be (x) reasonably requested by the holders of a majority of any
Class of participating Registrable Securities, (y) reasonably requested by
any participating holder (to the extent such request relates to information
relating to such holder), or (z) necessary to keep such Registration
effective for the period of time required by this Agreement, and comply
with provisions of the applicable securities laws with respect to the sale
or other disposition of all securities covered by such Registration
Statement during such period in accordance with the intended method or
methods of disposition by the sellers thereof set forth in such
Registration Statement;
(iv) promptly notify the participating holders of Registrable
Securities and the managing underwriter or underwriters, if any, and (if
requested) confirm such advice in writing and provide copies of the
relevant documents, as soon as reasonably practicable after notice thereof
is received by the Company (a) when the applicable Registration Statement
or any amendment thereto has been filed or becomes effective, and when the
applicable Prospectus or any amendment or supplement to such Prospectus has
been filed, (b) of any written comments by the SEC or any request by the
SEC or any other federal or state governmental authority for amendments or
supplements to such Registration Statement or such Prospectus or for
additional information, (c) of the issuance by the SEC of any stop order
suspending the effectiveness of such Registration Statement or any order by
the SEC or any other regulatory authority preventing or suspending the use
of any preliminary or final Prospectus or the initiation or threatening of
any proceedings for such purposes, (d) if, at any time, the representations
and warranties of the Company Parties in any applicable underwriting
agreement cease to be true and correct and in all material respects, and
(e) of the receipt by the Company Parties of any notification with respect
to the suspension of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(v) promptly notify each selling holder of Registrable Securities and
the managing underwriter or underwriters, if any, when the Company Parties
become aware of the happening of any event as a result of which the
applicable Registration Statement or the Prospectus included in such
Registration Statement (as then in effect) contains any untrue statement of
a material fact or omits to state a material fact necessary to make the
statements therein (in the case of such Prospectus and any preliminary
Prospectus, in light of the circumstances under which they were made) not
misleading or, if for any other reason it shall be necessary during such
time period to amend or supplement such Registration Statement or
Prospectus in order to comply with the Securities Act and, in either case
as promptly as reasonably practicable thereafter, prepare and file with the
SEC, and furnish without charge to the selling holders and the managing
underwriter or underwriters, if any, an amendment or supplement to such
Registration Statement or Prospectus so that, as thereafter delivered to
the purchaser of such securities, such Prospectus shall not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of circumstances under which they were made, not misleading;
(vi) use its best efforts to prevent or obtain the withdrawal of any
stop order or other order suspending the use of any preliminary or final
Prospectus;
(vii) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters and the holders of a majority of any Class of Registrable
Securities being sold agree should be included therein relating to the plan
of distribution with respect to such Registrable Securities; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as reasonably practicable after being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling holder of Registrable Securities and
each underwriter, if any, without charge, as many conformed copies as such
holder or underwriter may reasonably request of the applicable Registration
Statement and any amendment or post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(ix) deliver to each selling holder of Registrable Securities and each
underwriter, if any, without charge, as many copies of the applicable
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such holder or underwriter may reasonably request (it
being understood that the Company Parties consent to the use of such
Prospectus or any amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto) and such other
documents as such selling holder or underwriter may reasonably request in
order to facilitate the disposition of the Registrable Securities by such
holder or underwriter;
(x) on or prior to the date on which the applicable Registration
Statement is declared effective, use its best efforts to register or
qualify, and cooperate with the selling holders of Registrable Securities,
the managing underwriter or underwriters, if any, and their respective
counsel, in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or "Blue
Sky" laws of each state and other jurisdiction of the United States as any
such selling holder or managing underwriter or underwriters, if any, or
their respective counsel reasonably request in writing and do any and all
other acts or things reasonably necessary or advisable to keep such
registration or qualification in effect for so long as such Registration
Statement remains in effect and so as to permit the continuance of sales
and dealings in such jurisdictions for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement, provided that the Company Parties will not be
required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to
taxation or general service of process in any such jurisdiction where it is
not then so subject;
(xi) cooperate with the selling holders of Registrable Securities and
the managing underwriter or underwriters, if any, 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 and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of Registrable Securities to the underwriters;
(xii) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Securities;
(xiii) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable
Securities and provide the applicable transfer agent with printed
certificates for the Registrable Securities which are in a form eligible
for deposit with The Depository Trust Company;
(xiv) make such representations and warranties to the holders of
Registrable Securities being registered, and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers in
secondary underwritten public offerings;
(xv) enter into such customary agreements (including underwriting and
indemnification agreements) and take all such other actions as the holders
of at least a majority of any Class of Registrable Securities being sold or
the managing underwriter or underwriters, if any, reasonably request in
order to expedite or facilitate the registration and disposition of such
Registrable Securities;
(xvi) obtain for delivery to the holders of Registrable Securities
being registered and to the underwriter or underwriters, if any, an opinion
or opinions from counsel for the Company Parties dated the effective date
of the Registration Statement or, in the event of an Underwritten Offering,
the date of the closing under the underwriting agreement, in customary
form, scope and substance, which counsel and opinions shall be reasonably
satisfactory to such holders or underwriters, as the case may be, and their
respective counsel;
(xvii) in the case of an Underwritten Offering, obtain for delivery to
the Company Parties and the managing underwriter or underwriters, with
copies to the holders of Registrable Securities included in such
Registration, a cold comfort letter from the Company Parties' independent
certified public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the managing
underwriter or underwriters reasonably request, dated the date of execution
of the underwriting agreement and brought down to the closing under the
underwriting agreement;
(xviii) cooperate with each seller of Registrable Securities and each
underwriter, if any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD;
(xix) use its reasonable best efforts to comply with all applicable
securities laws and make available to its security holders, as soon as
reasonably practicable an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(xx) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by the applicable Registration
Statement from and after a date not later than the effective date of such
Registration Statement;
(xxi) cause all Registrable Securities covered by the applicable
Registration Statement to be listed on each securities exchange on which
any of the Company Parties' securities are then listed or quoted and on
each inter-dealer quotation system on which any of the Company Parties'
securities are then quoted;
(xxii) make available upon reasonable notice at reasonable times and
for reasonable periods for inspection by a representative appointed by the
majority of the holders of each Class of Registrable Securities covered by
the applicable Registration Statement, by any underwriter participating in
any disposition to be effected pursuant to such Registration Statement and
by any attorney, accountant or other agent retained by such holders or any
such underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company Parties, and cause all of
the Company Parties' officers, directors and employees and the independent
public accountants who have certified their financial statements to make
themselves available to discuss the business of the Company Parties and to
supply all information reasonably requested by any such Person in
connection with such Registration Statement as shall be necessary to enable
them to exercise their due diligence responsibility;
(xxiii) in the case of an Underwritten Offering, cause the senior
executive officers of the Company to participate in the customary "road
show" presentations that may be reasonably requested by the managing
underwriter or underwriters in any such Underwritten Offering and otherwise
to facilitate, cooperate with, and participate in each proposed offering
contemplated herein and customary selling efforts related thereto; and
(xxiv) promptly, after the issuance of an earnings release or upon the
request of a holder, prepare a current report on Form 8-K with respect to
such earnings release or a matter of disclosure as requested by such holder
and file such Form 8-K with the SEC.
(b) The Company Parties may require each seller of Registrable Securities
as to which any Registration is being effected to furnish to the Company Parties
such information regarding the distribution of such securities and such other
information relating to such holder and its ownership of Registrable Securities
as the Company Parties may from time to time reasonably request in writing. Each
holder of Registrable Securities agrees to furnish such information to the
Company Parties and to cooperate with the Company Parties as reasonably
necessary to enable the Company Parties to comply with the provisions of this
Agreement.
(c) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.5(a)(v), such holder
will forthwith discontinue disposition of Registrable Securities pursuant to
such Registration Statement until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 2.5(a)(v), or until
such holder is advised in writing by the Company that the use of the Prospectus
may be resumed, and if so directed by the Company, such holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period during which the
applicable Registration Statement is required to be maintained effective shall
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 either receives
the copies of the supplemented or amended Prospectus contemplated by Section
2.5(a)(v) or is advised in writing by the Company that the use of the Prospectus
may be resumed.
(d) Holders may seek to register different types of Registrable Securities
and different classes simultaneously and the Company Parties shall use their
best efforts to effect such Registration and sale in accordance with the
intended method or methods of disposition specified by such holders.
2.6. Underwritten Offerings.
(a) Shelf and Demand Registrations. If requested by the underwriters for
any Underwritten Offering requested by holders of Registrable Securities
pursuant to a Registration under Section 2.1 or under Section 2.2, the Company
Parties shall enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in substance and
form to the Company Parties , holders of a majority of each Class of the
Registrable Securities to be included in such underwriting, and the
underwriters, and to contain such representations and warranties by the Company
Parties and such other terms as are generally prevailing in agreements of that
type, including indemnities no less favorable to the recipient thereof than
those provided in Section 2.9. The holders of the Registrable Securities
proposed to be distributed by such underwriters will cooperate with the Company
Parties in the negotiation of the underwriting agreement and will give
consideration to the reasonable suggestions of the Company Parties regarding the
form thereof. Such holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and any or all of
the representations and warranties by, and the other agreements on the part of,
the Company Parties to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Registrable Securities and any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement also shall be conditions precedent to the
obligations of such holders of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any representations or
warranties to or agreements with the Company Parties or the underwriters other
than representations, warranties or agreements regarding such holder, such
holder's Registrable Securities, such holder's intended method of distribution
and any other representations required by law.
(b) Piggyback Registrations. If the Company Parties propose to register any
of their securities under the Securities Act as contemplated by Section 2.3 and
such securities are to be distributed in an Underwritten Offering through one or
more underwriters, the Company Parties will, if requested by any holder of
Registrable Securities pursuant to Section 2.3 and subject to the provisions of
Section 2.3(b), use their best efforts to arrange for such underwriters to
include on the same terms and conditions that apply to the other sellers in such
Registration all the Registrable Securities to be offered and sold by such
holder among the securities of the Company Parties to be distributed by such
underwriters in such Registration. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting agreement
between the Company Parties and such underwriters and any or all of the
representations and warranties by, and the other agreements on the part of, the
Company Parties to and for the benefit of such underwriters shall also be made
to and for the benefit of such holders of Registrable Securities and any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement also shall be conditions precedent to the obligations of
such holders of Registrable Securities. Any such holder of Registrable
Securities shall not be required to make any representations or warranties to or
agreements with the Company Parties or the underwriters other than
representations, warranties or agreements regarding such holder, such holder's
Registrable Securities and such holder's intended method of distribution or any
other representations required by law.
(c) Participation in Underwritten Registrations. No Person may participate
in any Underwritten Offering 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 to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
2.7. No Inconsistent Agreements; Additional Rights. Each of the Company
Parties represents and warrants that, except for the Existing Registration
Rights Agreement, it is not a party to any agreement with respect to its
securities that is inconsistent with the rights granted to the holders of
Registrable Securities by this Agreement and, other than the registration rights
granted as provided herein, has not granted to any party rights with respect to
the registration of any Registrable Securities or any other securities issued or
to be issued by it. Each of the Company and the Investor agrees that,
immediately upon the assignment to and assumption by the Investor of the
Existing Registration Rights Agreement pursuant to an agreement among the
Investor, VEBA Zweite Verwaltungsgesellschaft mbH and E.ON North America, Inc.,
the Existing Registration Rights Agreement shall terminate and be of no further
force or effect. The Company Parties shall not grant to any other holder of its
securities piggyback registration rights that would reduce the number of
Registrable Securities in any Registration under this Agreement without the
prior written consent of holders of 75% of the Registrable Securities to be
included in such Registration.
2.8. Registration Expenses. All expenses incident to the Company Parties'
performance of or compliance with this Agreement will be paid by the Company
Parties, including (i) all registration and filing fees, and any other fees and
expenses associated with filings required to be made with the SEC or the NASD,
(ii) all fees and expenses in connection with compliance with state securities
or "Blue Sky" laws, (iii) all printing, duplicating, word processing, messenger,
telephone, facsimile and delivery expenses (including expenses of printing
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and of printing prospectuses), (iv) all fees and
disbursements of counsel for the Company Parties and of all independent
certified public accountants of the Company Parties(including the expenses of
any special audit and cold comfort letters required by or incident to such
performance), (v) Securities Act liability insurance or similar insurance if the
Company Parties so desire or the underwriters so require in accordance with
then-customary underwriting practice, (vi) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange or quotation of the Registrable Securities on any inter-dealer
quotation system, (vii) all applicable rating agency fees with respect to the
Registrable Securities, (viii) all reasonable fees and disbursements of counsel
selected by the holders of a majority of each Class of the Registrable
Securities being registered, (ix) all fees and expenses of accountants selected
by the holders of a majority of each Class of the Registrable Securities being
registered, (x) any reasonable fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, (xi) all fees and expenses
of any special experts or other Persons retained by the Company Parties in
connection with any Registration, and (xii) all of the Company Parties' internal
expenses (including all salaries and expenses of its officers and employees
performing legal or accounting duties). All such expenses are referred to herein
as "Registration Expenses." The Company Parties shall not be required to pay any
fees and disbursements to underwriters not customarily paid by the issuers of
securities in a secondary offering, including underwriting discounts and
commissions and transfer taxes, if any, attributable to the sale of Registrable
Securities.
2.9. Indemnification.
(a) Indemnification by the Company Parties Jointly and Severally. Subject
to the last sentence of this Section 2.9(a), the Company Parties jointly and
severally agree to indemnify and hold harmless, to the full extent permitted by
law, each holder of Registrable Securities, each member, limited partner or
general partner of each such holder, each of their respective Affiliates,
officers, directors, shareholders, members, limited partners, general partners,
employees, advisors, and agents and each Person who controls (within the meaning
of the Securities Act or the Exchange Act) such Persons and each of their
respective Representatives from and against any and all losses, penalties,
judgments, suits, costs, claims, damages, liabilities (or actions or proceedings
in respect thereof, whether or not such indemnified party is a party thereto)
and expenses, joint or several (including reasonable costs of investigation and
legal expenses) (each, a "Loss" and collectively "Losses") arising out of or
based upon (i) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable Securities
were Registered under the Securities Act (including any final, preliminary or
summary Prospectus contained therein or any amendment thereof or supplement
thereto or any documents incorporated by reference therein), or (ii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
Prospectus or preliminary Prospectus, in light of the circumstances under which
they were made) not misleading; provided, however, that the Company Parties
shall not be liable to any particular indemnified party (x) to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company Parties by such indemnified party expressly for use in the
preparation thereof or (y) to the extent that any such Loss arises out of or is
based upon an untrue statement or omission in a preliminary Prospectus relating
to Registrable Securities, if a Prospectus (as then amended or supplemented)
that would have cured the defect was furnished to the indemnified party from
whom the Person asserting the claim giving rise to such Loss purchased
Registrable Securities at least 5 days prior to the written confirmation of the
sale of the Registrable Securities to such Person and a copy of such Prospectus
(as amended and supplemented) was not sent or given by or on behalf of such
indemnified party to such Person at or prior to the written confirmation of the
sale of the Registrable Securities to such Person. This indemnity shall be in
addition to any liability the Company Parties may otherwise have. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such holder or any indemnified party and shall survive the transfer
of such securities by such holder. The Company Parties will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the Securities
Act and the Exchange Act) to the same extent as provided above with respect to
the indemnification of the indemnified parties. Notwithstanding anything to the
contrary in this Agreement, the Guarantors shall only be required to provide
indemnification pursuant to this Section 2.9 if the Losses for which such
indemnification is required arise out of or in connection with the purchase and
sale of Note Securities.
(b) Indemnification by the Selling Holder of Registrable Securities. Each
selling holder of Registrable Securities agrees (severally and not jointly) to
indemnify and hold harmless, to the fullest extent permitted by law, the Company
Parties, their directors and officers and each Person who controls the Company
Parties (within the meaning of the Securities Act or the Exchange Act) from and
against any Losses resulting from (i) any untrue statement of a material fact in
any Registration Statement under which such Registrable Securities were
Registered under the Securities Act (including any final, preliminary or summary
Prospectus contained therein or any amendment thereof or supplement thereto or
any documents incorporated by reference therein), or (ii) any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus or preliminary Prospectus, in
light of the circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information furnished in writing by such selling holder to the
Company Parties specifically for inclusion in such Registration Statement and
has not been corrected in a subsequent writing prior to or concurrently with the
sale of the Registrable Securities to the Person asserting the claim. In no
event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder under the sale of Registrable Securities giving rise to such
indemnification obligation. The Company Parties shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above (with appropriate modification) with respect to
information furnished in writing by such Persons specifically for inclusion in
any Prospectus or Registration Statement. Each holder also shall indemnify any
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters (within the meaning of the Securities
Act or the Exchange Act) to the same extent as provided above with respect to
indemnification of the Company Parties.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided, that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is actually and materially prejudiced by reason of such delay
or failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to indemnification hereunder shall
have the right to select and employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such Person unless (i) the indemnifying party has agreed in writing
to pay such fees or expenses, (ii) the indemnifying party shall have failed to
assume the defense of such claim within a reasonable time after receipt of
notice of such claim from the Person entitled to indemnification hereunder and
employ counsel reasonably satisfactory to such Person, (iii) the indemnified
party has reasonably concluded (based upon advice of its counsel) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, or
(iv) in the reasonable judgment of any such Person (based upon advice of its
counsel) a conflict of interest may exist between such Person and the
indemnifying party with respect to such claims (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such Person). If the indemnifying party assumes the defense, the indemnifying
party shall not have the right to settle such action without the consent of the
indemnified party. No indemnifying party shall 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.
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 prior
written consent, but such consent may not be unreasonably withheld.
(d) Contribution. If for any reason the indemnification provided for in
paragraphs (a) and (b) of this Section 2.9 is unavailable to an indemnified
party or insufficient in respect of any Losses referred to therein, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Loss (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party or parties on the other hand; or (ii)
if the allocation provided by clause (i) of this Section 2.9(d) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) of this Section 2.9(d) but also the
relative fault of the indemnifying party on the one hand and the indemnified
party or parties on the other hand in connection with the acts, statements or
omissions that resulted in such losses, as well as any other relevant equitable
considerations. In connection with any Registration Statement filed with the SEC
by the Company Parties, (x) the relative benefits received by the indemnifying
on the one hand and the indemnified party on the other hand shall be deemed to
be in the same respective proportions as the net proceeds from the offering of
any securities registered thereunder (before deducting expenses) received by the
indemnifying party and the net proceeds from the offering of any Registrable
Securities (before deducting expenses) received by the indemnified party, bear
to the aggregate public offering price of the securities registered thereunder;
and (y) the relative fault of the indemnifying party on the one hand and the
indemnified party on the other hand shall be determined by reference to, among
other things, whether any untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The parties hereto agree that
it would not be just or equitable if contribution pursuant to this Section
2.9(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The amount paid or payable by an indemnified party
as a result of the Losses referred to in Sections 2.9(a) and 2.9(b) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 2.9(d), in connection with any Registration Statement
filed by the Company, a selling holder of Registrable Securities shall not be
required to contribute any amount in excess of the dollar amount of the proceeds
received by such holder under the sale of Registrable Securities giving rise to
such contribution obligation. If indemnification is available under this Section
2.9, the indemnifying parties shall indemnify each indemnified party to the full
extent provided in Sections 2.9(a) and 2.9(b) hereof without regard to the
relative fault of said indemnifying parties or indemnified party. The remedies
provided for in this Section 2.9 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
2.10. Rules 144 and 144A. The Company Parties covenant that they will file
the reports required to be filed by them under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if
the Company Parties are not required to file such reports, they will, upon the
request of any holder of Registrable Securities, make publicly available such
necessary information for so long as necessary to permit sales pursuant to Rules
144, 144A or Regulation S under the Securities Act), and they 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) Rules 144, 144A or Regulation S
under the Securities Act, as such Rules 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 Parties will
deliver to such holder a written statement as to whether it has complied with
such requirements and, if not, the specifics thereof.
SECTION 3. MISCELLANEOUS.
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3.1. Term. This Agreement shall terminate upon the expiration of the Shelf
Period, except for the provisions of Sections 2.9 and 2.10 and all of this
Section 3, which shall survive any such termination.
3.2. Injunctive Relief. It is hereby agreed and acknowledged that it will
be impossible to measure in money the damage that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, be entitled (in addition to any other remedy to which it may be
entitled in law or in equity) to injunctive relief, including specific
performance, to enforce such obligations, and if any action should be brought in
equity to enforce any of the provisions of this Agreement, none of the parties
hereto shall raise the defense that there is an adequate remedy at law.
3.3. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
3.4. Notices. All notices, other communications or documents provided for
or permitted to be given hereunder, shall be made in writing and shall be given
either personally by hand-delivery, by facsimile transmission, by mailing the
same in a sealed envelope, registered first-Class mail, postage prepaid, return
receipt requested, or by air courier guaranteeing overnight delivery:
(a) if to the Company Parties:
c/o MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (City of ▇'▇▇▇▇▇▇)
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Investor:
TPG Wafer Holdings LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Each holder, by written notice given to the Company Parties in accordance
with this Section 3.4 may change the address to which notices, other
communications or documents are to be sent to such holder. All notices, other
communications or documents shall be deemed to have been duly given: (i) at the
time delivered by hand, if personally delivered; (ii) when receipt is
acknowledged in writing by addressee, if by facsimile transmission; (iii) five
business days after being deposited in the mail, postage prepaid, if mailed by
first Class mail; and (iv) on the first business day with respect to which a
reputable air courier guarantees delivery; provided, however, that notices of a
change of address shall be effective only upon receipt.
3.5. Successors, Assigns and Transferees; Assumption. (a) The registration
rights of any holder under this Agreement with respect to any Registrable
Securities may be transferred and assigned without the need for an express
assignment, provided that, other than an assignment to the Investor or an
Affiliate of the Investor, a Designated Purchaser or an Affiliate of a
Designated Purchaser, a Note Designee or an Affiliate of a Note Designee, no
such assignment shall be binding upon or obligate the Company Parties to any
such assignee unless and until the Company shall have received notice of such
assignment as herein provided and a written agreement of the assignee to be
bound by the provisions of this Agreement.
(b) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
Whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the parties hereto other than the
Company Parties shall also be for the benefit of and enforceable by any
subsequent holder of Registrable Securities, subject to the provisions contained
herein.
(c) The Company Parties shall not change, convert or exchange any
Registrable Securities into securities of another Person upon any
reorganization, recapitalization, reclassification, merger, consolidation or
similar transaction unless (i) such Person shall expressly assume, by a written
agreement in a form reasonably acceptable to a majority of holders of each Class
of Registrable Securities, all the obligations of the Company Parties under this
Agreement with respect to such Registrable Securities; (ii) the Company Parties
shall have delivered an executed copy of such agreement to the holders; and
(iii) immediately after giving effect to such transaction no default under this
Agreement shall have occurred and be continuing.
3.6. Governing Law; Service of Process; Consent to Jurisdiction. (a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
(b) To the fullest extent permitted by applicable law, each party hereto
(i) agrees that any claim, action or proceeding by such party seeking any relief
whatsoever arising out of, or in connection with, this Agreement or the
transactions contemplated hereby shall be brought only in the United States
District Court for the Southern District of New York and in any New York State
court located in the Borough of Manhattan and not in any other State or Federal
court in the United States of America or any court in any other country, (ii)
agrees to submit to the exclusive jurisdiction of such courts located in the
State of New York for purposes of all legal proceedings arising out of, or in
connection with, this Agreement or the transactions contemplated hereby, and
(iii) irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
3.7. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
3.8. Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
therein.
3.9. Amendment; Waiver.
(a) Except for the addition of new Guarantors as provided in Section 3.12,
this Agreement may not be amended or modified and waivers and consents to
departures from the provisions hereof may not be given, except by an instrument
or instruments in writing making specific reference to this Agreement and signed
by the Company Parties, the holders of a majority of each Class of Registrable
Securities then outstanding and, so long as it is a holder, the Investor. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment, modification, waiver or consent authorized by this
Section 3.9(a), whether or not such Registrable Securities shall have been
marked accordingly.
(b) The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. Except as
otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
3.10. Counterparts. This Agreement may be executed in any number of
separate 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
together shall constitute one and the same agreement.
3.11. Effectiveness. The provisions of this Agreement shall take effect
upon the occurrence of the Initial Restructuring (as such term is defined in the
Restructuring Agreement) without further action by or on behalf of any party
hereto, and other than this Section 3.11 shall have no force or effect prior to
the Initial Restructuring.
3.12 Additional Guarantors. Each Domestic Subsidiary (as defined in the
Indenture) that was not in existence or not a Subsidiary on the date of this
Agreement is required to become a Guarantor upon becoming a Subsidiary. Upon
execution and delivery after the date hereof by the Investor and such a
Subsidiary of an instrument in the form of Exhibit A, such Subsidiary shall
become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor herein. The execution and delivery of any instrument adding
an additional Guarantor as a party to this Agreement shall not require the
consent of any other Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
Chief Financial Officer
TPG WAFER HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as
Treasurer for each of the subsidiaries
listed on Schedule I hereto
Schedule I
Guarantors: MEMC Pasadena, Inc.
MEMC International, Inc.
MEMC Southwest Inc.
SiBond, L.L.C.
PlasmaSil, L.L.C.
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Registration Rights
Agreement dated as of November 13, 2001, among MEMC Electronic Materials, Inc.,
a Delaware corporation (the "Company"), the guarantors included on the signature
lines thereto (the "Guarantors" and together with the Company, the "Company
Parties") and TPG Wafer Holdings LLC, a Delaware limited liability company
(together with its permitted assigns, "TPG" or the "Investor").
A. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Registration Rights Agreement.
B. The Guarantors have entered into the Registration Rights Agreement as an
inducement to the Investor entering into the Restructuring Agreement. Pursuant
to Section 3.12 of the Registration Rights Agreement, each Domestic Subsidiary
(as defined in the Indenture) that was not in existence or not a Subsidiary on
the date of the Registration Rights Agreement is required to enter into the
Registration Rights Agreement as a Guarantor upon becoming a Subsidiary. Section
3.12 of the Registration Rights Agreement provides that additional Subsidiaries
may become Guarantors under the Registration Rights Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "New Guarantor") is executing this Supplement in accordance with
the requirements of the Registration Rights Agreement to become a Guarantor
under the Registration Rights Agreement.
Accordingly, the New Guarantor agrees as follows:
SECTION 1. In accordance with Section 3.12 of the Registration Rights
Agreement, the New Guarantor by its signature below becomes a Guarantor under
the Registration Rights Agreement with the same force and effect as if
originally named therein as a Guarantor and the New Guarantor hereby (a) agrees
to all the terms and provisions of the Registration Rights Agreement applicable
to it as a Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and
correct on and as of the date hereof except to the extent a representation and
warranty expressly relates solely to a specific date in which case such
representation and warranty shall be true and correct on such date. Each
reference to a "Guarantor" in the Registration Rights Agreement shall be deemed
to include the New Guarantor. The Registration Rights Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the holders of
Registrable Securities that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
SECTION 3. This Supplement shall become effective when the New Guarantor
shall have executed this Supplement and delivered it to the Investor. Delivery
of an executed signature page to this Supplement by facsimile transmission shall
be as effective as delivery of a manually executed counterpart of this
Supplement.
SECTION 4. Except as expressly supplemented hereby, the Registration Rights
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN THE STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
SECTION 6. Whenever possible, each provision or portion of any provision of
this Supplement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision or portion of any provision of this
Supplement is held to be invalid, illegal or unenforceable in any respect under
any applicable law in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Supplement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained therein.
SECTION 7. All communications and notices under the Registration Rights
Agreement to the New Guarantor shall be given to it at the address set forth
under its signature below, with a copy to the Company.
IN WITNESS WHEREOF, the New Guarantor has duly executed this Supplement
to the Registration Rights Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR]
By:
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Name:
Title:
Address: