Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report HTML 2.02M
2: EX-4.125 EX-4.125 Registration Rights Agreement 19 92K
3: EX-4.136 EX-4.136 Redemption Agreement 9 46K
4: EX-4.137 EX-4.137 7.5 Percent Convertible Senior Notes 69 350K
5: EX-12.01 EX-12.01 Computation of Ratio of Earnings HTML 23K
6: EX-21.01 EX-21.01 Subsidiaries of Xcel Energy Inc. HTML 20K
7: EX-23.01 EX-23.01 Consent of Independent Accountants HTML 12K
8: EX-23.02 EX-23.02 Consent of Independent Accountants HTML 11K
9: EX-99.01 EX-99.01 Statement Pursuant to Private Securities HTML 15K
10: EX-99.02 EX-99.02 Description of Business of Nrg Energy Inc HTML 116K
11: EX-99.04 EX-99.04 Certification Pusuant to 18 Usc SEC. 1350 HTML 10K
EX-4.125 — EX-4.125 Registration Rights Agreement
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EXHIBIT 4.125
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XCEL ENERGY INC.
AS ISSUER
AND
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
AND
LAZARD FRERES & CO. L.L.C.
AS INITIAL PURCHASERS
DATED AS OF NOVEMBER 21, 2002
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of November 21, 2002, by and between Xcel Energy Inc., a
Minnesota corporation (the "Company") and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Lazard Freres & Co. L.L.C. (the "Initial Purchasers"), pursuant
to that certain Purchase Agreement, dated November 19, 2002 (the "Purchase
Agreement") between the Company and the Initial Purchasers.
In order to induce the Initial Purchasers 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.
The Company agrees with the Initial Purchasers (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Registrable
Securities (as defined herein) (each of the foregoing a "Holder" and together
the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set
forth in Section 2(d) hereof.
"Applicable Conversion Price" as of any date of determination
means the Conversion Price in effect as of such date of determination or, if no
Notes are then outstanding, the Conversion Price that would be in effect were
Notes then outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of Common Stock, par value
$2.50 per share, of the Company and any other shares of common stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Underlying Common Stock.
"Conversion Price" has the meaning assigned to such term in
the Indenture.
"Damages Accrual Period" has the meaning set forth in Section
2(e) hereof.
"Damages Payment Date" means, in the case of the Notes and the
Underlying Common Stock, May 21 and November 21 of each year.
"Deferral Notice" has the meaning set forth in Section 3(i)
hereof.
"Deferral Period" has the meaning set forth in Section 3(i)
hereof.
"Effectiveness Deadline Date" has the meaning set forth in
Section 2(a) hereof.
2
"Effectiveness Period" means the period commencing on the last
date of original issuance of the Notes and terminating upon the earliest of the
following: (A) when all the Notes covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or when all shares
of Underlying Common Stock have been sold pursuant to the Shelf Registration
Statement and (B) when all outstanding Registrable Securities held by persons
that are not Affiliates of the Company may be resold without registration under
the Securities Act pursuant to Rule 144(k) under the Securities Act or any
successor provision thereto.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Holder" has the meaning set forth in the third paragraph of
this Agreement.
"Indenture" means the Indenture, dated as of November 21,
2002, between the Company and Wells Fargo Bank Minnesota, National Association,
as trustee, pursuant to which the Notes are being issued.
"Initial Purchasers" means Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Lazard Freres & Co. L.L.C.
"Initial Shelf Registration Statement" has the meaning set
forth in Section 2(a) hereof.
"Issue Date" means the first date of original issuance of the
Notes.
"Liquidated Damages Amount" has the meaning set forth in
Section 2(e) hereof.
"Material Event" has the meaning set forth in Section 3(i)
hereof.
"Notes" means the 7 1/2% Convertible Senior Notes due 2007 of
the Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated November 19, 2002 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date, so
long as all of their Registrable Securities that have been registered for resale
pursuant to a Notice and Questionnaire have not been sold in accordance with a
Registration Statement.
"Purchase Agreement" has the meaning set forth in the preamble
hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a
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prospectus filed as part of an effective registration statement in reliance upon
Rule 415 promulgated under the Securities Act), as amended or supplemented by
any amendment or prospectus supplement, including post-effective amendments, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Prospectus.
"Record Holder" means (i) with respect to any Damages Payment
Date relating to any Notes as to which any such Liquidated Damages Amount has
accrued, the holder of record of such Note on the record date with respect to
the interest payment date under the Indenture on which such Damages Payment Date
shall occur and (ii) with respect to any Damages Payment Date relating to the
Underlying Common Stock as to which any such Liquidated Damages Amount has
accrued, the registered holder of such Underlying Common Stock fifteen (15) days
prior to such Damages Payment Date.
"Registrable Securities" means the Notes until such Notes have
been converted into or exchanged for the Underlying Common Stock and, at all
times the Underlying Common Stock and any securities into or for which such
Underlying Common Stock has been converted or exchanged, and any security issued
with respect thereto upon any stock dividend, split or similar event until, in
the case of any such security, (A) the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it, (ii) such security may be resold without
registration under the Securities Act pursuant to Rule 144(k) under the
Securities Act or any successor provision thereto, or (iii) its sale to the
public pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (A)(i) through (iii), the
legend with respect to transfer restrictions required under the Indenture are
removed or removable in accordance with the terms of the Indenture or such
legend, as the case may be.
"Registration Expenses" has the meaning set forth in Section 5
hereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Restricted Securities" has the meaning given such term in
Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
4
"Subsequent Shelf Registration Statement" has the meaning set
forth in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means Wells Fargo Bank Minnesota, National
Association, the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which
the Notes are convertible or issued upon any such conversion.
Section 2. Shelf Registration. (a) The Company shall prepare
and file or cause to be prepared and filed with the SEC, as soon as practicable
but in any event by the date (the "Filing Deadline Date") that is ninety (90)
days after the Issue Date, a Registration Statement for an offering to be made
on a delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
"Shelf Registration Statement") registering the resale from time to time by
Holders thereof of all of the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-1 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the reasonable methods
of distribution elected by the Holders, and set forth in the Initial Shelf
Registration Statement. The Company shall use its best efforts to cause the
Initial Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is practicable but in any event by the date (the
"Effectiveness Deadline Date") that is one hundred eighty (180) days after the
Issue Date, and to keep the Initial Shelf Registration Statement (or any
Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date that is ten (10) Business Days
prior to such time of effectiveness shall be named as a selling securityholder
in the Initial Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law to the extent that such
Holder has delivered a Notice and Questionnaire to the Company as contemplated
by Section 2(d) below. Notwithstanding the foregoing, if a Holder fails to
provide the Company with the information requested by the Notice and
Questionnaire within the period specified in Section 2(d) below, then the Filing
Deadline Date and the Effectiveness Deadline Date, with respect to such Holder,
shall be extended by one day for each day after the twenty (20) Business Day
period that such Holder fails to provide such Notice and Questionnaire;
provided, however, that the failure of a Holder to provide such Notice and
Questionnaire shall not otherwise affect the Company's obligations under this
Agreement to any other Holder.
(b) If the Initial Shelf Registration Statement or
any Subsequent Shelf Registration Statement ceases to be effective for any
reason at any time during the Effectiveness Period, the Company shall use its
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within five (5) Business Days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its best
efforts to cause the Subsequent Shelf Registration Statement to become effective
as promptly as is practicable after such filing and to keep such Registration
Statement (or subsequent Shelf Registration Statement) continuously effective
until the end of the Effectiveness Period.
5
(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, if required by the Securities Act or as reasonably
requested by the Initial Purchasers or by the Trustee on behalf of the Holders
of the Registrable Securities covered by such Shelf Registration Statement.
(d) Each Holder of Registrable Securities agrees that
if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 2(d) and Section 3(i). Each Holder of Registrable Securities
wising to sell Registrable Securities pursuant to a Shelf Registration Statement
and related Prospectus agrees to deliver a Notice and Questionnaire, but shall
have at least twenty (20) Business Days from the date on which the Notice and
Questionnaire is first received by such Holders to return a completed and signed
Notice and Questionnaire to the Company. From and after the date the Initial
Shelf Registration Statement is declared effective, the Company shall, as
promptly as practicable after the date a Notice and Questionnaire is delivered,
whether before of after the (20) Business Day Period described above, and in any
event within the later of (x) five (5) Business Days after such date or (y) five
(5) Business Days after the expiration of any Deferral Period in effect when the
Notice and Questionnaire is delivered or put into effect within five (5)
Business Days of such delivery date, (i) if required by applicable law, file
with the SEC a post-effective amendment to the Shelf Registration Statement or,
if required by applicable law, prepare and file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use its best
efforts to cause such post-effective amendment to be declared effective under
the Securities Act as promptly as is practicable, but in any event by the date
(the "Amendment Effectiveness Deadline Date") that is thirty (30) days after the
date such post-effective amendment is required by this clause to be filed; (ii)
provide such Holder copies of any documents filed pursuant to Section 2(d)(i);
and (iii) notify such Holder as promptly as practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to
Section 2(d)(i); provided that if such Notice and Questionnaire is delivered
during a Deferral Period, or a Deferral Period is put into effect within five
(5) Business Days after such delivery date, the Company shall so inform the
Holder delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above within five (5) Business Days after
expiration of the Deferral Period in accordance with Section 3(i); provided
further that if under applicable law, the Company has more than one option as to
the type or manner of making any such filing, the Company will make the required
filing or filings in the manner or of a type that is reasonably expected to
result in the earliest availability of the Prospectus for effecting resales of
Registrable Securities. Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder that is
not a Notice Holder as a selling securityholder in any Registration Statement or
related Prospectus; provided, however, that any Holder that becomes a Notice
Holder pursuant to the provisions of this Section 2(d) (whether or not such
Holder was a Notice Holder at the time the Registration Statement was declared
effective) shall be named as a selling securityholder in the Registration
Statement or related Prospectus in accordance with the requirements of this
Section 2(d).
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with
6
precision, if (i) the Initial Shelf Registration Statement has not been filed on
or prior to the Filing Deadline Date, (ii) the Initial Shelf Registration
Statement has not been declared effective under the Securities Act on or prior
to the Effectiveness Deadline Date, (iii) the Company has failed to perform its
obligations set forth in Section 2(b) within the time period required therein,
(iv) the Company has failed to perform its obligations set forth in Section 2(d)
within the time periods required therein or (v) the aggregate duration of
Deferral Periods in any period exceeds the number of days permitted in respect
of such period pursuant to Section 3(i) hereof (each of the events of a type
described in any of the foregoing clauses (i) through (v) are individually
referred to herein as an "Event," and the Filing Deadline Date in the case of
clause (i), the Effectiveness Deadline Date in the case of clause (ii), the date
by which the Company is required to perform its obligations set forth in Section
2(b) in the case of clause (iii), the date by which the Company is required to
perform its obligations set forth in Section 2(d) in the case of clause (iv)
(including the filing of any post-effective amendment prior to the Amendment
Effectiveness Deadline Date), and the date on which the aggregate duration of
Deferral Periods in any period exceeds the number of days permitted by Section
3(i) hereof in the case of clause (v), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the following dates with
respect to the respective types of Events: the date the Initial Shelf
Registration Statement is filed in the case of an Event of the type described in
clause (i), the date the Initial Shelf Registration Statement is declared
effective under the Securities Act in the case of an Event of the type described
in clause (ii), the date the Company performs its obligations set forth in
Section 2(b) in the case of an Event of the type described in clause (iii), the
date the Company performs its obligations set forth in Section 2(d) in the case
of an Event of the type described in clause (iv) (including, without limitation,
the date the relevant post-effective amendment to the Shelf Registration
Statement is declared effective under the Securities Act), and termination of
the Deferral Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(i) to be exceeded in the case of the
commencement of an Event of the type described in clause (v).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company agrees to
pay, as liquidated damages and not as a penalty, an amount (the "Liquidated
Damages Amount"), payable on the Damages Payment Dates to Record Holders of
Notes that are Registrable Securities and of shares of Underlying Common Stock
issued upon conversion of Notes that are Registrable Securities, as the case may
be, accruing, for each portion of such Damages Accrual Period beginning on and
including a Damages Payment Date (or, if the first date of any Damages Accrual
Period for which the Liquidated Damages Amount is to be paid to Holders as a
result of the occurrence of any particular Event is other than a Damages Payment
Date, then the Event Date) and ending on but excluding the first to occur of (A)
the date of the end of the Damages Accrual Period or (B) the next Damages
Payment Date, at a rate per annum equal to one-quarter of one percent (0.25%)
for the first 90-day period from the Event Date, and thereafter at a rate per
annum equal to one-half of one percent (0.5%) of (i) the aggregate principal
amount of such Notes or, without duplication, (ii) in the case of Notes that
have been converted into or exchanged for Underlying Common Stock, the
Applicable Conversion Price of such shares of Underlying Common Stock on the
date of conversion, as the case may be, in each case determined as of the
Business Day immediately preceding the next Damages Payment Date; provided that
any Liquidated Damages Amount accrued with respect to any Note or portion
thereof called for redemption on a redemption date or converted into Underlying
Common Stock on a conversion date prior to the Damages Payment Date, shall, in
any such event, be paid instead to the Holder who submitted such Note or portion
thereof for redemption or conversion on the applicable redemption date or
conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). Notwithstanding the foregoing, no
Liquidated Damages Amounts shall accrue as to any
7
Registrable Security from and after the earlier of (x) the date such security is
no longer a Registrable Security and (y) expiration of the Effectiveness Period.
The rate of accrual of the Liquidated Damages Amount with respect to any period
shall not exceed 0.5% notwithstanding the occurrence of multiple concurrent
Events. Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant to
this Section, the accrual of Liquidated Damages Amounts will cease (without in
any way limiting the effect of any subsequent Event requiring the payment of
Liquidated Damages Amount by the Company).
The Trustee shall be entitled, on behalf of Holders of Notes,
to seek any available remedy for the enforcement of this Agreement, including
for the payment of any Liquidated Damages Amount. Nothing shall preclude a
Holder of registrable Securities from pursuing or obtaining specific performance
or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section
2(e) that are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the failure of
the Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
Section 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided
that before filing any Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, the Company shall furnish to the Initial
Purchasers and counsel for the Holders and for the Initial Purchasers (or, if
applicable, separate counsel for the Holders) copies of all such documents
proposed to be filed and use its best efforts to reflect in each such document
when so filed with the SEC such comments as such counsel reasonably shall
propose within three (3) Business Days of the delivery of such copies to the
Initial Purchasers and such counsel.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective until the expiration of
the Effectiveness Period; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
use its best efforts to comply with the provisions of the Securities Act
applicable to them with respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness Period in accordance with
the intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
8
(c) As promptly as practicable give notice to the
Notice Holders, the Initial Purchasers and counsel for the Holders and for the
Initial Purchasers (or, if applicable, separate counsel for the Holders) (i)
when any Prospectus, Prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with the SEC
and, with respect to a Registration Statement or any post-effective amendment,
when the same has been declared effective, (ii) of any request, following the
effectiveness of the Initial Shelf Registration Statement under the Securities
Act, by the SEC or any other federal or state governmental authority for
amendments or supplements to any Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (v) of the determination by the Company that a post-effective amendment to a
Registration Statement will be filed with the SEC, which notice may, at the
discretion of the Company (or as required pursuant to Section 3(i)), state that
it constitutes a Deferral Notice, in which event the provisions of Section 3(i)
shall apply.
(d) Use its best efforts to prevent the issuance of,
and, if issued, to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case as promptly as practicable, and provide prompt notice to
each Notice Holder and the Initial Purchasers of the withdrawal of any such
order.
(e) If reasonably requested by the Initial Purchasers
or any Notice Holder, as promptly as practicable incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchasers, such Notice Holder or counsel for the
Holders and for the Initial Purchasers (or, if applicable, separate counsel for
the Holders) shall, on the basis of a written opinion of nationally-recognized
counsel experienced in such matters, determine to be required to be included
therein by applicable law and make any required filings of such Prospectus
supplement or such post-effective amendment provided that the Company shall not
be required to take any actions under this Section 3(e) that, in the written
opinion of counsel for the Company, are not in compliance with appliance law.
(f) As promptly as practicable furnish to each Notice
Holder, counsel for the Holders and for the Initial Purchasers (or, if
applicable, separate counsel for the Holders) and the Initial Purchasers,
without charge, at least one (1) conformed copy of the Registration Statement
and any amendment thereto, including financial statements but excluding
schedules, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits (unless requested in writing to the Company by such
Notice Holder, such counsel or the Initial Purchasers).
(g) During the Effectiveness Period, deliver to each
Notice Holder, counsel for the Holders and for the Initial Purchasers (or, if
applicable, separate counsel for the Holders) and the Initial Purchasers, in
connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Company hereby consents (except during such periods that a
Deferral Notice is outstanding and
9
has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder, in connection with any offering and
sale of the Registrable Securities covered by such Prospectus or any amendment
or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its best efforts to
register or qualify or cooperate with the Notice Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Notice Holder reasonably requests in writing (which request may be included
in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use its
best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period in connection with such
Notice Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set forth in the
relevant Registration Statement and the related Prospectus; provided that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where they would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where they are not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or
the existence of any fact as a result of which any Registration Statement shall
contain any untrue statement of a material fact required to be stated therein or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or any Prospectus shall
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (C) the occurrence
or existence of any pending corporate development (a "Material Event") that, in
the reasonable discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related Prospectus, (i)
in the case of clause (B) above, subject to the next sentence, as promptly as
practicable prepare and file a post-effective amendment to such Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference, if applicable or file any other required document that
would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact required to be stated therein or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and such Prospectus does not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that the Company may
rely on information provided by each Notice Holder with respect to such Notice
Holder), as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective amendment to a
Registration Statement, subject to the next sentence, use its best efforts to
cause it to be declared effective as promptly as is practicable, and (ii) give
notice to the Notice Holders and counsel for the Holders and for the Initial
Purchasers (or, if applicable, separate counsel for the Holders) that the
availability of the Shelf Registration Statement is suspended (a "Deferral
Notice") and, upon
10
receipt of any Deferral Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to the Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in clause (i) above, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the reasonable judgment of the Company, the Registration Statement does not
contain any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and the Prospectus does not contain any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (z) in the case of clause (C) above, as soon as, in
the reasonable discretion of the Company, such suspension is no longer
appropriate. The period during which the availability of the Registration
Statement and any Prospectus is suspended (the "Deferral Period") without the
Company incurring any obligation to pay liquidated damages pursuant to Section
2(e), shall not exceed thirty (30) days in any ninety- (90-) day period and
ninety (90) days in any twelve- (12-) month period.
(j) Make available for inspection during normal
business hours by a representative for the Notice Holders of such Registrable
Securities, and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all reasonably requested financial and other records and
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate executive officers, directors and
employees of the Company and its subsidiaries to make available for inspection
during normal business hours all relevant information reasonably requested by
such representative for the Notice Holders, or any such broker-dealers,
attorneys or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided, however, that such
persons shall first agree in writing with the Company that any information that
is reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement or is not
otherwise under a fiduciary or other duty of trust to the Company, and provided
that the foregoing inspection and information gathering shall, to the fullest
extent possible, be coordinated on behalf of all the Notice Holders and the
other parties entitled thereto by the counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations
of the SEC and make generally available to its securityholders earning
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
11
(l) Cooperate with each Notice Holder to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement, which certificates shall
not bear any restrictive legends, and cause such Registrable Securities to be in
such denominations as are permitted by the Indenture and registered in such
names as such Notice Holder may request in writing at least (2) Business Days
prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable
Securities covered by each Registration Statement not later than the effective
date of such Registration Statement and provide the Trustee and the transfer
agent for the Common Stock with printed certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust
Company.
(n) Prior to any public offering of Underlying Common
Stock which are Registrable Securities, use its best efforts to cause all such
Underlying Common Stock to be listed, or approved for listing, on the New York
Stock Exchange or any other stock exchange on which securities of the same class
issued by the Company are then listed.
(o) Cooperate and assist in any filings required to
be made with the National Association of Securities Dealers, Inc.
(p) Upon (i) the filing of the Initial Registration
Statement and (ii) the effectiveness of the Initial Registration Statement,
announce the same, in each case by press release to a nationally recognized wire
service.
(q) Enter into such customary agreements and take all
such other necessary actions in connection therewith (including those requested
by the holders of a majority of the Registrable Securities being sold) in order
to expedite or facilitate disposition of such Registrable Securities.
(r) Cause the Indenture to be qualified under the TIA
not later than the effective date of any Registration Statement; and in
connection therewith, cooperate with the Trustee to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA and execute, and use its best efforts to cause the
Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner.
Section 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence. Each Notice Holder agrees promptly to furnish to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of such
Registrable Securities as may be required to be to disclosed in the Registration
Statement under applicable law.
Section 5. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under
12
Sections 2 and 3 of this Agreement whether or not any of the Registration
Statements are declared effective. Such fees and expenses ("Registration
Expenses") shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (x) with respect to
filings required to be made with the National Association of Securities Dealers,
Inc. and (y) of compliance with federal and state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of one counsel
for the Holders, not to exceed $10,000 in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as the Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company, (v) the reasonable fees and expenses
of the Initial Purchasers, including the reasonable fees and expenses of one
counsel to the Initial Purchasers and the Holders in connection therewith, (vi)
fees and disbursements of the Trustee and its counsel and of the registrar and
transfer agent for the Common Stock and (vii) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
pay the internal expenses of the Company (including, without limitation, all
salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing by the Company of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company.
Section 6. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless
each of the Initial Purchasers, each Holder and each person, if any, who
controls each such Initial Purchaser or Holder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d)
13
below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above; provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by the Initial Purchasers or such Holder
expressly for use in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of (i) an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information with respect to a Holder furnished in
writing to the Company by such Holder expressly for use in a Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) and (ii) the failure of any Holder to comply with Section
3(i).
(b) In connection with any shelf registration
statement in which a Holder of Registrable securities is participating, in
furnishing information relating to such Holder to the Company expressly for use
in the Registration Statement, each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchasers, the other
selling Holders, and each of their respective directors and officers, and each
person, if any, who controls the any Company, the Initial Purchasers or any
other selling Holder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 6(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Initial
14
Purchasers, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this
Section 6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other hand in connection with
the statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the
Holders and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Holders or the Initial
Purchaser and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 6(e)
were determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to above in this
Section 6(e). The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
6(e) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or
15
any claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 6, neither any
of the Initial Purchasers nor any Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such Holder or underwritten by such Initial
Purchaser, as the case may be, and distributed to the public were offered to the
public exceeds the amount of any damages that such Holder or Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6, each person, if any, who
controls any of the Initial Purchasers or any Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Initial Purchasers or Holder, and each
director of the Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company.
Section 7. Information Requirements. (a) The Company covenants
that, if at any time before the end of the Effectiveness Period the Company is
not subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in writing
(including, without limitation, making such reasonable representations as any
such Holder 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
Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of
any Holder of Registrable Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities (other than the Common Stock) under any
section of the Exchange Act.
(b) The Company shall file the reports required to be
filed by it under the Exchange Act and shall comply with all other requirements
set forth in the Exchange Act and the rules and regulations thereunder.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as
of the date hereof, a party to, nor shall it, on or after the date of this
Agreement, enter into, any agreement with respect to its securities that
conflicts with the rights granted to the Holders of Registrable Securities in
this Agreement. The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the holders of such Company's securities under any other
agreements. Notwithstanding the
16
foregoing, the Initial Purchasers acknowledges that the Company is obligated,
and may obligate itself from time to time in the future, to register its
securities for other holders.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of Notes deemed to be the
Holders, for purposes of this Section, of the number of outstanding shares of
Underlying Common Stock into which such Notes are or would be convertible or
exchangeable as of the date on which such consent is requested). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; provided that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
by telecopier, by courier guaranteeing overnight delivery or by first-class
mail, return receipt requested, and shall be deemed given (i) when made, if made
by hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1)
Business Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt, if made by
first- class mail, to the parties as follows:
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in a
Notice and Questionnaire or any amendment thereto;
(y) if to the Company, to:
Xcel Energy Inc.
800 Nicollet Mall
Minneapolis, MN 55401
Attention: General Counsel
Telecopy No.: (612) 215-4501
(z) if to the Initial Purchasers, to:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Four World Financial Center
New York, New York 10080
Attention: Investment Banking Group
17
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchasers shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchasers. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF
THE LAW OF ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is 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 and the
registration rights granted by the Company with respect to the Registrable
Securities. Except as provided in the Purchase Agreement, 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 Registrable Securities. This Agreement supersedes
all prior agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement. In no
event will such methods of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
(k) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
18
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XCEL ENERGY INC.
By: /s/ Benjamin G.S. Fowke III
----------------------------
Benjamin G.S. Fowke III
Vice President and Treasurer
Confirmed and accepted as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Robert Craig
--------------------------------------
Robert Craig
Managing Director
For itself and as Representative of the other Initial Purchaser named in
Schedule A to the Purchase Agreement.
19
Dates Referenced Herein and Documents Incorporated by Reference
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